ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

DIVISION III

CHRIS STUART

APPELLANT

v.

MARNIE STUART KILLION

APPELLEE

CA03-85

OCTOBER 29, 2003

APPEAL FROM SEARCY COUNTY CIRCUIT COURT

[NO. E-2000-34]

HONORABLE DAVID L. REYNOLDS, CIRCUIT JUDGE

AFFIRMED

Andree Layton Roaf, Judge

Appellant Chris Stuart appeals from the trial court’s decision granting appellee Marnie Stuart Killion’s petition for a change of custody. On appeal, Stuart argues that the trial court erred in finding a material change in circumstances sufficient to warrant a change in custody. We affirm. The parties to this appeal were married by common law in Texas and had one child, Chelsea, born on May 11, 1997, after they had moved to Searcy County, Arkansas. They separated in February 2000, and a decree of divorce was entered on August 31, 2000. By agreement of the parties, Stuart was awarded primary custody, with Killion having visitation on alternating weekends and holidays, along with extended summer visitation. Both parties resided in Marshall, Arkansas at the time of their divorce.

On September 10, 2001, Killion filed a motion for change of custody, arguing that there were facts unknown to the court at the time of the original divorce decree regarding Stuart’s violent nature and dangerous propensities, which she asserted he used to force her to agree to give him custody. Killion also alleged that there had been a material change in circumstances since the divorce decree sufficient to warrant a change in custody. Killion stated that Stuart had moved to Texas without any notice to her and without permission from the court, and that he should be held in contempt of court. Killion further alleged that Stuart had refused to cooperate with visitation since he moved and that he was attempting to interfere with her relationship with her daughter by refusing for extended periods of time to allow visitation, which was having an adverse impact on her and the child. The trial court entered an order on December 28, 2001, addressing the problems with visitation and awarding Killion visitation of one week out of every month, with the parties meeting in Texarkana to exchange the child. The order also stated that each party must provide the other with their respective addresses and telephone numbers, as well as the contact information of any other person providing caretaking services for the child.

The hearing on Killion’s petition to modify custody was held on October 7, 2002. At the hearing, Killion attempted to testify that she was under duress when she agreed in the divorce decree that Stuart would have custody of their child and that this was unknown by the court at the time of the original decree. Stuart objected to this testimony, arguing that she should not be able to “go behind the decree.” The court agreed and stated that it would only allow testimony as to facts that have arisen since the divorce decree.

Killion testified that she was currently employed as an assistant manager at Dollar General and that she had worked there for four years. Killion stated that she had lived in the same residence for the last two years. She also testified that she had gotten remarried on December 23, 2001, to Jerry Ray Killion. According to Killion, Stuart never discussed with her his plans to move to Texas, and she stated that she had no notice of the move. The first time she learned that Stuart had moved was when he called her from Texas. She testified that she did not have her visitation as provided in the divorce decree from January 2001, when Stuart moved, until November 2001, after she hired a private detective to locate Stuart and serve him with the motion for change of custody. There was conflicting testimony by the parties as to how many times Killion was able to see her daughter between January 2001 and December 2001, when the order modifying visitation was entered; however, there was testimony that she had gone to Texas to see the child on one occasion after obtaining Stuart’s address by phone. Stuart also testified that he brought Chelsea to Arkansas on three different occasions. Killion testified that she attempted to have Stuart agree to meet her halfway in Texarkana to exchange the child, but that he refused to do so, saying that she had to come to his home in Texas to visit. According to Killion, it was not until the order modifying visitation was entered in December 2001 that she was able to regularly exercise her visitation privileges.

Killion testified that she was concerned about Chelsea’s mental state. She stated that Chelsea had to go back to wearing diapers after being potty trained. Killion also testified that Chelsea cries and does not want to go back to her father when visitation ends. According to Killion, Chelsea should not be with Stuart because his mother essentially raises her, as she lives with them and keeps the child when Stuart is at work. In fact, Killion testified that Chelsea talks more about her grandmother than her father. Killion stated that Stuart was not stable because he had moved several times since the divorce and that she felt Chelsea should have a stable lifestyle. She also testified that Stuart had caused her problems at work since their divorce by coming to Dollar General and hitting and throwing things because he was angry. In addition, she stated that Stuart would call her and hang up, and that one time when he called, he and his wife got into a “screaming match” over visitation in Chelsea’s presence.

Killion testified that Chelsea would be better off with her and that she could give her a more stable environment. She stated that her work schedule is flexible and that she tries to spend as much time as possible with Chelsea. When she does have to work, Killion testified that she takes Chelsea to daycare where she is able to interact with other children. Although she admitted that her husband, Jerry, had previously been convicted of a drug offense and put on probation, Killion testified that he and Chelsea have a good relationship. She stated that Jerry treats Chelsea as his own and that he shares responsibility for her. Killion also admitted that she has two other older children, David and Lisha, who live in Texas. She stated that her daughter is married and that her son lives with his father. Killion testified that she does not have much contact with them, although she stated that she had seen her daughter the previous summer and that she had sent cards and letters to her son.

Stuart testified that he currently lives in a house in Huntsville, Texas with his parents and Chelsea. He stated that he moved from Marshall, Arkansas, to an apartment in Conroe, Texas in January 2001, along with his parents and his sister’s family, because he had obtained a new job. He also lived in a trailer in Willis, Texas, before moving to his current house in Huntsville. Stuart testified that he did discuss his plans with Killion prior to his move and that he had given her his new address. He admitted, however, that he did not have permission from the court to relocate. After he moved, he was laid off from his new job, and he went to Colorado for approximately one month to work. Stuart stated that Chelsea went with him and that his mother also came to help take care of Chelsea. They stayed in a motel while in Colorado. Stuart testified that he then returned to Texas and started a new job with the Texas Department of Criminal Justice as a prison officer, where he is currently employed. Stuart stated that he works from 4:00 a.m. until noon four days a week at the prison and that his mother watches Chelsea while he is at work.

Stuart testified that he was remarried in October 2000 to Sharon Caino and that he had a new child with her in April 2001. Stuart admitted that Sharon was pregnant at the time of his divorce from Killion. He testified that he and Sharon separated after six months and that she lives in Harrison, Arkansas. Although they were still married at the time of the hearing, Stuart stated that they are planning to get a divorce. Stuart admitted that he has never lived on his own with Chelsea and that he has always lived with his parents, except for when he lived with Sharon. Stuart testified that Chelsea was better off staying with his mother than going to daycare and that Chelsea and his mother have a very strong bond. He stated that he also has a strong bond with Chelsea and that he spends a lot of time with her. According to Stuart, when Chelsea starts kindergarten this fall, his mother would be able to take her and pick her up, or he could pick her up. Although he admitted that there had been problems with visitation after he moved, Stuart testified that the situation had been better since the December 2001 order was entered. Stuart further testified that Chelsea has an extended family in Texas, with his aunt and uncle living nearby, as well as his sister and her children. He stated that Chelsea’s half-sister and half-brother, Lisha and David, also live nearby and that they visit. Stuart testified that it would be in Chelsea’s best interest to remain with him because Killion is married to a convicted felon.

Jerry Killion testified that he was convicted of possession of drug paraphernalia in 1999 and that he had completed his probation. He stated that he had maintained a job for the past two years. He also testified that he has a great relationship with Chelsea and that they spend a lot of time together as a family. According to Jerry, Chelsea has a good relationship with her mother, and he is supportive of her attempt to gain custody.

Melissa Hill, who is a manager of Dollar General and has worked with Marnie Killion, testified that she had witnessed Stuart harassing Killion on the phone six or seven different times, primarily about visitation. Hill stated that Killion would be upset and crying when she got off the phone. Hill also testified that she had seen Killion interact with her daughter and that she does a good job. She stated that Killion is reliable and responsible and that Chelsea seems happy with her mother and stepfather.

John Napier, Killion’s manager at Dollar General, testified that she has good work ethics and that he can rely on her. In addition to her being truthful and honest, Napier stated that Killion is a loving mother and that she and Chelsea interact well together. Napier also testified that Chelsea seems happy with her mother and Jerry, and that Jerry shows compassion and concern for Chelsea. Napier rated Jerry as a “10” for his parenting abilities on a scale from one to ten.

Kim Hendricks, the childcare provider that Killion uses for Chelsea, testified that she has Chelsea once or twice a week when Killion has the child. Hendricks stated that Killion always drops Chelsea off and picks her up on time. She testified that Killion and Jerry have done an exceptional job as parents and that Chelsea is always excited to see them. Hendricks stated that Chelsea was a little bit behind the other four year olds, but that she is very bright and well-behaved. Hendricks testified that the child did not indicate that either set of parents was causing problems for her.

Marilyn Stuart, Chris’s mother, testified that her son and Chelsea had lived with them since the divorce. She stated that Killion was aware that they were moving to Texas because they had discussed it. Marilyn testified that Chelsea has her own room in their two-bedroom house in Huntsville. She stated that she watches Chelsea, along with her three cousins, when Stuart is at work. According to Marilyn, she takes on most of the responsibility of caring for Chelsea, such as giving her a bath, and does many of the things that a mother would normally be doing, although Stuart also feeds her and gives her a bath sometimes. Marilyn testified that Stuart has a close relationship with Chelsea, that he spends a lot of time with her, and that they have fun together.

David Ballew, Killion’s ex-husband, testified that he and Killion had two children together, Lisha, who is twenty years old, and David, who is fifteen. Ballew stated that, to his knowledge, Killion had never called her son or written him a letter. Ballew testified that David has no relationship with his mother. Lisha Ballew testified that she has very little contact with her mother, although she had talked to her recently and she had seen her when she came to Texas to visit Chelsea. Lisha testified that she has psychological problems because she does not have a good relationship with her mother and that she had contemplated suicide. She stated that she feared the kind of relationship her mother would have with Chelsea. However, Lisha also testified that she had not made any effort to visit her mother in Arkansas and that her mother welcomed her with “open arms” when she visited with her in Texas.

After hearing the evidence, the trial court found that there had been a material change in circumstances since the last order. The court also found that Killion had settled down and has a stable environment in which to raise Chelsea; thus, the court awarded custody to Killion. The court then set the visitation schedule by allowing Stuart one week of visitation each month, with extended summer visitation. When Chelsea starts school, the court set visitation of one weekend per month, with standard visitation in the summers. 

On appeal, Stuart argues that the trial court erred in finding that there was a material change of circumstances to warrant a change of custody. A party seeking to modify custody must prove that a material change of circumstances has occurred since the last order of custody or that material facts existed at the time of the decree that were unknown to the court. Lloyd v. Butts, 343 Ark. 620, 37 S.W.3d 603 (2001). Custody will not be modified unless it is shown that there are changed conditions demonstrating that a modification is in the best interest of the child. Vo v. Vo, 78 Ark. App. 134, 79 S.W.3d 388 (2002). The chancellor’s findings in this regard will not be reversed unless they are clearly erroneous. Id. While custody is always modifiable, appellate courts require a more rigid standard for custody modification than for initial custody determinations in order to promote stability and continuity for the children and to discourage repeated litigation of the same issues. Id. There are no cases in which the superior position, ability, and opportunity of the trial judge to observe the parties carry a greater weight than those involving the custody of minor children, and our deference to the trial judge in matters of credibility is correspondingly greater in such cases. Id.

            Stuart first contends that the last order entered in the case was on December 28, 2001, and that Killion failed to present any evidence of a material change in circumstances from the time of this order, which modified visitation, until the date of the hearing on October 7, 2002. However, the material change in circumstances that must be proven in order to modify custody does not have to occur from the date of the last hearing in the case; rather, the changes must occur from the time of the original custody order. See Gerot v. Gerot, 76 Ark. App. 138, 61 S.W.3d 890 (2001); Hollinger v. Hollinger, 65 Ark. App. 110, 986 S.W.2d 105 (1999). Thus, there must have been evidence presented of a material change in circumstances from the date of the divorce decree, on August 31, 2000, to the date of the hearing on Killion’s petition to modify custody, on October 7, 2002.

            Contrary to Stuart’s assertions, there was proof of a material change in circumstances sufficient to warrant a change of custody in this case. Although the trial court did not make specific findings of fact about the change in Stuart’s circumstances that warranted a change of custody, this court reviews the evidence de novo and may nonetheless conclude that there was sufficient evidence from which the trial court could have found a change in circumstances. Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d 520 (1999). Also, we note that even though the trial court did not mention the best interest of the child in his oral findings from the bench, it is stated in the trial court’s written order that a change in custody to Killion is in the child’s best interest. See Price v. Price, 341 Ark. 311, 16 S.W.3d 248 (2000) (stating that even where there is an oral pronouncement of a decision from the bench, the judgment does not become final until it is entered).

            The evidence in this case showed that Stuart had remarried in October 2000, that he had another child with his new wife, and that they then became separated after six months. Stuart then relocated to Texas from Arkansas in January 2001, without permission from the court. Once in Texas, Stuart was laid off from his job, worked temporarily in Colorado, then obtained a new job. He has had three different residences in Texas, in addition to living out of a motel with Chelsea while in Colorado. Stuart testified that he has lived with his parents since the divorce and that he has never lived on his own with Chelsea. The evidence also showed that Stuart’s mother took care of Chelsea much of the time and that she performed many of the duties that a mother would normally perform, such as giving Chelsea a bath. Killion testified that she had to hire a private detective to find Stuart in order to serve the petition to modify custody. In addition, she was denied her court-ordered visitation from January 2001 until December 2001, when the order modifying visitation was entered, and she testified that Stuart refused to meet her halfway and required her to go to Texas to visit her daughter. Killion testified that she was concerned for Chelsea’s mental state because of Stuart’s unstable lifestyle. For example, Killion stated that Chelsea had to go back to wearing diapers after being potty-trained. Also, she testified that Chelsea would cry when she had to go back to her father.

            This evidence of a material change in circumstances on Stuart’s part, which was affecting the welfare of the child, warranted the change in custody to Killion. A custodial parent’s move is one factor that may be considered when determining whether a material change in circumstances exists. Gerot v. Gerot, supra. Also, the evidence showed that Stuart interfered with Killion’s visitation rights for almost one year, which is also an important factor to be considered. Turner v. Benson, 59 Ark. App. 108, 953 S.W.2d 596 (1997); Watts v. Watts, 17 Ark. App. 253, 707 S.W.2d 777 (1986). In Watts, supra, the court found sufficient evidence of a material change in circumstances where the custodial parent relocated out-of-state and the non-custodial parent was denied visitation for a period of four or five months. The court noted that a substantial denial of court-awarded visitation was not only a factor to be considered, but also might constitute the required material change in circumstance. Id. The court in Watts also noted that the custodial parent’s mother had been the primary caretaker for the child and stated that the failure to discharge court-entrusted care and custody of a minor child is another factor in determining whether there was a material change in circumstances, as well as whether a change in custody is in the best interest of the child. Id. In this case, the evidence showed that Stuart’s mother had substantial responsibility for Chelsea’s care.

            Other relevant factors present in this case that may be considered in determining whether a material change in circumstances has occurred are Stuart’s remarriage, the birth of his child, Stuart’s subsequent separation, and Killion’s remarriage. See Hamilton v. Barrett, supra. Although each of these factors in isolation may not be sufficient for a change of custody, all of these factors examined in the aggregate support the trial court’s finding that a change in custody is warranted. Vo v. Vo, supra. Also, as the trial court found, Killion’s lifestyle has become more stable, and improvement in the non-custodial parent’s circumstances is also a factor the court may consider. Mason v. Mason, 82 Ark. App. ___, 111 S.W.3d 855 (May 7, 2003); Hamilton v. Barrett, supra. Thus, from our de novo review, we find that the trial court’s finding that there was a material change in circumstances warranting a change in custody is not clearly erroneous, and we affirm.

            Affirmed.

            Stroud, C.J., and Neal, J., agree.