ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

JIMMY MISENHEIMER

APPELLANT

v.

DEBBIE (MISENHEIMER) STROUD

APPELLEE

CA03-468

DECEMBER 3, 2003

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[DV96-7698]

HONORABLE MACKIE MCCLELLAN PIERCE, CIRCUIT JUDGE

AFFIRMED

Karen R. Baker, Judge

This is a one-brief child-custody case. Appellant, Jimmy Misenheimer, appeals from the Pulaski County Circuit Court's denial of his motion for a change in custody. The trial court also granted the motion of appellee, Debbie Misenheimer, to increase child support, and it modified appellant's visitation. Appellant has three arguments on appeal. First, he argues that the trial court erred in its determination that there had been no change of circumstance sufficient to warrant a change of custody. Second, he argues that given the trial court's determination that there had not been a change of circumstance, the trial court erred in modifying visitation to the point where each party had physical custody of the children an approximately equal amount of time. Third, he argues that given the trial court's modification of visitation, the trial court erred in granting appellee's motion for increase in child support. We affirm.

The parties in this case were divorced on May 27, 1997. There were two children born of the marriage, Jonathon and Nicholas. The parties agreed to joint legal custody of the boys with the mother, Debbie Misenheimer (now Stroud), having primary physical custody. Initially, visitation with appellant was every other weekend from Friday at 5:30 p.m. to Sunday at 5:30 p.m., alternating holidays, and six weeks of summer vacation. Child support was set at $158 per week. Since the divorce, both parties have remarried.

On January 2, 2002, appellant filed a motion for a change of custody. The basis for the motion was that the children were experiencing behavioral problems and a decline in grades. Mrs. Stroud filed a response denying that the children were having behavioral problems; she also requested an increase in child support.

Following the hearing, the trial court denied appellant's motion for a change in custody and granted Mrs. Stroud's motion for an increase in child support. The trial court also modified appellant's visitation in that he was given additional overnight visitation with the children every other Sunday evening; overnight visitation with Nicholas every Monday evening; overnight visitation with Jonathon every Thursday evening; and overnight visitation with both children every Wednesday evening. Further, the trial court increased child support to $180 per week. Appellant filed a motion for reconsideration and requested a hearing on the motion. The request was denied. This appeal followed.

Our standard of review in child-custody cases is well settled. On appeal, we consider the evidence de novo, and we will reverse the trial court's findings of fact only if they are clearly contrary to the preponderance of the evidence. Eaton v. Dixon, 69 Ark. App. 9, 9 S.W.3d 535 (2000) (citing Thigpen v. Carpenter, 21 Ark. App. 194, 730 S.W.2d 510 (1987)). Because the question of the preponderance of the evidence turns largely on the credibility of the witnesses, the appellate court defers to the superior position of the trial judge, especially in those cases involving child custody. Id. (citing Anderson v. Anderson, 18 Ark. App. 284, 715 S.W.2d 218 (1986)).

For appellant's first argument on appeal, he asserts that the trial court erred in its determination that there had been no change of circumstances sufficient to warrant a change of custody. The principles governing the modification of custodial orders are well-settled and require no citation. The primary consideration is the best interest and welfare of the child. All other considerations are secondary. Although the trial court retains continuing power over the matter of child custody after the initial award, the original decree is a final adjudication of the proper person to have care and custody of the child. Before that order can be changed, there must be proof of material facts which were unknown to the court at that time, or proof that the conditions have so materially changed as to warrant modification and that the best interest of the child requires it. Custody is not awarded to reward or punish either parent. Eaton, supra (citing Ketron v. Ketron, 15 Ark. App. 325, 692 S.W.2d 261 (1985)). The burden of proving such a change is on the party seeking the modification. Word v. Remick, 75 Ark. App. 390, 58 S.W.3d 422 (2001) (citing Watts v. Watts, 17 Ark. App. 253, 707 S.W.2d 777 (1986)).

In the present case, appellant's petition for a change in custody was based solely on the fact that the children were experiencing behavioral problems in school and suffering a decline in grades. Specifically, Jonathon, age nine, was experiencing discipline problems, attitude problems, and problems with deteriorating grades to the point that he was placed at the Joseph Pfeifer Kiwanis Camp. Nicholas, age fourteen, was experiencing a decline in his grades, problems following instructions, and problems with preparation and homework. Appellant asserts that the children's problems are associated with a lack of structure in the mother's home. He argues that he would be better suited to provide stability and continuity in their lives, although he credits appellee's husband with assisting the children.

Under these facts, evidence of declining grades and behavioral problems of this nature at school do not in and of themselves mandate a finding that appellant has met his burden as to the threshold issue of proving a material change of circumstances. Grade assignments and behavioral reports are simply one factor the court may consider in determining whether or not there has been a change of circumstances. Certain factors when considered in the aggregate may support a finding that a change in custody is warranted where each factor, if examined in isolation, would not. See Vo v. Vo, 78 Ark. App. 134, 79 S.W.3d 388 (2002) (citing Hollinger v. Hollinger, 65 Ark. App. 110, 986 S.W.2d 105 (1999)).

Appellant notes that both parties have remarried since the entry of the initial custody order and cites Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d 520 (1999), for the proposition that remarriage alone satisfies the requirement of demonstrating a material change of circumstances. In Hamilton, the court found that the trial court did not err in finding a material change in circumstances existed where proof was presented that the custodial parent's behavior violated the parties' custody and settlement agreement, along with the events of the custodial parent's remarriage and the birth of the non-custodial parent's child. Hamilton does not stand for the proposition that remarriage alone is a material change of circumstances. Thus, we hold that the trial judge's denial of the petition to change custody upon finding that there was not a material change of circumstances was not clearly against the preponderance of the evidence.

Second, appellant argues that given the trial court's ruling on the custody issue, the trial court erred in modifying visitation to the point where each party had physical custody of the children an approximately equal amount of time. Apparently, appellant is arguing that the ruling on the change of custody issue and the ruling on the issue of visitation are inconsistent in that in ordering an increase in appellant's visitation the trial court essentially found that a change in circumstances existed because it was in the best interest of the children to spend more time with appellant. Appellant also asserts that such a ruling essentially gives the parties joint physical custody. He cites authority for the proposition that joint physical custody is not favored in Arkansas. However, appellant seeks no relief from the trial judge's ruling increasing visitation with his children. We do not reach the merits of this point because appellant failed to request any form of relief, see, e.g., Berry v. State, 74 Ark. App. 141, 45 S.W.3d 435 (2001).

Third, appellant argues that given the modification of visitation, the trial court erred in granting appellee's motion to increase child support. Specifically, appellant argues that the court erred in not completely abating support rather then granting a "windfall for the `custodial' parent." A party seeking to modify child support has the burden of showing a change in circumstances sufficient to warrant the modification. Harris v. Harris, ___ Ark. App. ___, 107 S.W.3d 897 (2003) (citing Weir v. Phillips, 75 Ark. App. 208, 55 S.W.3d 804 (2001)). Factors which the trial court may consider in determining whether there has been a change in circumstances include remarriage of the parties, a minor reaching majority, change in the income and financial conditions of the parties, relocation, change in custody, debts of the parties, financial conditions of the parties and families, ability to meet current and future obligations, and the child-support chart. Id. (citing Woodson v. Johnson, 63 Ark. App. 192, 975 S.W.2d 880 (1998)). The amount of child support lies within the sound discretion of the trial court, and the trial court's finding will not be reversed absent an abuse of discretion. Ford v. Ford, 347 Ark. 485, 65 S.W.3d 432 (2002) (citing McWhorter v. McWhorter, 346 Ark. 475, 58 S.W.3d 840 (2001); Kelly v. Kelly, 341 Ark. 596, 19 S.W.3d 1 (2000); Smith v. Smith, 337 Ark. 583, 990 S.W.2d 550 (1999)). The trial court is required to reference the child-support chart, and the amount specified in the chart is presumed to be reasonable. Id. (citing Smith v. Smith, supra). However, the presumption that the chart is correct may be overcome if the trial court provides written findings that the chart amount is unjust or inappropriate. Id.

Here, the trial court granted appellee's motion to increase child support, placing the amount per the child-support chart at $196 based on appellant's weekly net income of $870.49. However, the trial judge deviated downward from the child-support chart due to the additional visitation time awarded to appellant, setting child support at $180 per week. The trial judge referenced the child support chart as required, and provided reasons for the deviation in appellant's favor. We find no abuse of discretion in the amount of child support awarded.

For the foregoing reasons, we affirm.

Bird and Gladwin, JJ., agree.