ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

DIANNE DAVIS,

APPELLANT

v.

ALAN HAGEMAN,

APPELLEE

CA03-506

JANUARY 14, 2004

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT,

NO. EDV2001-1066,

HONORABLE VANN SMITH, JUDGE

AFFIRMED

Sam Bird, Judge

On September 4, 1990, appellant Dianne Hageman (now Davis) and appellee Alan Hageman were divorced, and Ms. Davis was awarded custody of their twenty-two-month-old daughter, Jessica. In July 2000 Ms. Davis, a registered nurse, and her then-husband, Dale Davis, moved to California to accept jobs in the medical profession. In February 2001 the trial court denied a change of custody to Mr. Hageman. On December 30, 2002, however, the Pulaski County Circuit Court granted Mr. Hageman's second petition for a change of custody. The trial court denied Ms. Davis's motion for reconsideration, and this appeal followed. Ms. Davis presents two points for reversal: (1) the trial court's finding that a material change of circumstance existed since the previous adjudication of custody is clearly against the preponderance of the evidence; (2) the evidence does not support the trial court's decision to change custody, and the decision is clearly erroneous. We affirm on both points. The pertinent proceedings in this case began with the petition Mr. Hageman filed on August 30, 2000, alleging that changes in circumstances since the entry of the divorce decree would justify changing custody of the child. At the hearing on this petition, on November 17, 2000, Mr. Hageman told the trial court that he was seeking custody because his daughter "needed to be brought up in a house where there are adults." He testified as to ways in which he thought that Ms. Davis was not adequately supervising Jessica, who was then twelve years old.

The trial court found that, despite the remarriages and relocation of both parties, there had been no material change of circumstances that would justify a change in custody. Ruling from the bench, the court stated in part:

And it's primarily, there have been some changes in certain circumstances: the remarriages, the moving, but there is no material change in circumstance. In other words, there is no reason to change custody. I mean, she'd be just fine with you, Mr. Hageman and your wife. There is no doubt about that. You could do a fine job. But she's [Ms. Davis] done a fine job. And unless you're going to try to make something better for a child, there is no reason to disrupt what has already gone on in their lives, or their life, since we just have one child in here.

. . . .

Jessica is too young to be left after school by herself. You need to make arrangements for her to be somewhere until somebody [gets] home. It's just too frightening for them and especially in a new spot where you're not real sure this is your home yet anyway. But she's really too young to be there. She's close. I'm not saying that in another year or two-- and she'll be able to let you know that. But, right now, she's just too young to be there by herself for at least two hours.

A written order denying the change of custody was filed on February 8, 2001. The order required that Ms. Davis "not leave the minor child at home unattended after school, especially in light of the child's new surroundings and age." Referring to the year-round calendar for Jessica's school in California, the court specified the following visitation schedule:

While the minor child is on the "B Track" school schedule, [Mr. Hageman] will have visitation with the minor child during the entire April (4 week) school break period, during the entire June (2 week) school break period, ½ of the August break, and then ½ of the December break as set forth herein.

On April 9, 2002, Mr. Hageman filed a second petition for a change of custody, alleging that there had been a significant change of circumstances in recent months such as to necessitate a change in custody and other relief. The petition alleged the following changed circumstances:

a. The Plaintiff [Ms. Davis], who married Dale Davis, is now separated from her estranged husband. The Plaintiff currently resides at 1304 Bywood, #3, in Modesto, California. Her estranged husband and her two younger children live at 2632 Beatrice Lane, Modesto, California.

b. The Plaintiff has continued to move to different locations with the child, and previously resided at 3400 Coffee Road, Apt. 225, in Modesto, California, and also lived at the 2632 Beatrice Lane address when she and her husband were together.

c. The minor child, now age thirteen, has been left alone on numerous occasions, and has been left alone to baby sit her younger brothers, without adult supervision present.

d. The Plaintiff also has left the minor child in the care of the step-father, who, in turn, leaves the child unsupervised or babysitting her two younger brothers.

e. The child has stayed in the step-father's home on evenings when his girlfriend has also spent the night in the home.

f. The child has stayed in her mother's home on evenings when her mother's boyfriend has also spent the night in the home. Her mother is still married to Mr. Davis.

g. The child has been allowed to be away from the home until up to 11:30 p.m. on school nights.

h. Due to the work schedule of the Plaintiff, the minor child is left alone to get ready for school and left alone on days and evenings when the Plaintiff is called to work.

i. The minor child is very confused and has stated to the Defendant that she "doesn't know where her home is."

j. Most recently, the step-father contacted the Defendant stating that he had to contact the Modesto, California Police about the Plaintiff arguing, screaming, and "freaking out" toward the minor child, Jessica Hageman. Police were called to the child's home. The step-father had sent the minor child to the neighbor's home for her own safety, since the Plaintiff appeared to be most distraught over the minor child's behavior.

A hearing on Mr. Hageman's second petition to change custody was scheduled for May 14, 2002. On April 25, 2002, however, while Jessica was in Arkansas for a visitation that had begun at the first of the month, Mr. Hageman filed an ex parte petition for immediate custody. His petition stated that Jessica was scheduled to be returned to her mother on May 1 for a two-week period until May 14, but that during the visitation period Jessica had been seen by a licensed professional counselor and psychological examiner who had provided information that Jessica was at risk for harm should she return to California prior to trial. His petition alleged that it was in the best interests of the child, in order to protect her health and well-being, that she remain with him for the two weeks preceding trial on May 14; and that such a brief stay would not seriously jeopardize the rights of Ms. Davis or Jessica. The petition alleged that Jessica had disclosed certain behaviors and information to the counselor that were cause for concern, and that notes and writings by Jessica evidenced sexual activity and suicidal ideations. Included was the following writing from the counselor, Charlotte Carlson:

It may be that the only way to insure her safety at this time is to have Jessica remain in Arkansas rather than making the return trip to California. This is certainly the case during this time in which mother and step-father are divorcing and attempting to settle their own conflicts.

The petition for immediate custody was granted on April 26, 2002, by ex parte order.

Ms. Davis filed a petition to dissolve the emergency order on April 30, 2002, and a hearing on it was conducted on that date. Ms. Davis's testimony at the hearing included the following:

I have left Jessica alone since the last court hearing. I leave her alone sometimes when I go to work. I have left her alone on more than ten occasions. I have left her alone probably on more than twenty occasions. She has not become sexually active in my absence. Yes, I do have an idea about my child's sexual behavior. When I leave her alone, occasionally it is late at night.

. . . .

Judge Mays has asked me once to not leave Jessica alone. It was stated, when Jessica was twelve years old, that [due to] her age and the newness of her surroundings that she should not be left alone after school. She has been left alone during the past several months.

. . . .

I work from 7:00 a.m to 7:00 p.m., three days a week. I am on call at other times but I am rarely called in late and only once in a blue moon overnight. But if that's coming up and we know that, we make other arrangements for the children. Jessica has every opportunity and every option to come with me. There is a call room there. But it is usually her wish that she be allowed to sleep in her own bed. I'd be home before she got up to get ready for school, or I would call her. The time that I get her up [for] school depends on whether she takes her shower the night before or not. Even on the days that I work, we all get up and we all get dressed. I take her to her girlfriend's house or to however she's getting to school that morning. She's dressed and ready to go. Her girlfriend is Alyssa Miller, Alyssa Juarez. If she wants to walk and meet them at Dale's house, I'll take her over there. She walks home in the afternoon after school. . . . The house is approximately one mile from the school.

. . . .

I know the route she takes home. I know that by her telling me. She walks to Dale's house. She has asked to walk to my home and I won't allow her to cross the busy intersections. I do not ask her to walk to Dale's. She has plenty of opportunity to have a ride to and from school, which she has vehemently denied, didn't want to. They like to walk, they like to ride their bikes, they like to skate.

With regard to whether I establish Jessica's routine or does she establish her own, Jessica is at an age where she is asking for more responsibility and more latitude. And as long as she is honest with me and within reason, we have been trying to work with that.

When Jessica was twelve, she was allowed to be alone at times for two hours at the  most. I remember this Court saying that Jessica shall not be left alone after school. That was essentially impossible because child care only takes them up to age twelve. The programs that I've looked into in Modesto for after school care have kids that are already in trouble and I'd rather keep her around children who are not in trouble than to further subject her to it.

Ms. Davis also testified that Jessica and some of her friends had started babysitting, that California law allows children to stay by themselves at age twelve, and that Jessica babysat for her two brothers, ages seven and four, when she wanted to. Ms. Davis testified that on the three days a week that she worked, Jessica walked to her step-father's house. Ms. Davis stated: He is not there but he gets off work, at the latest, by 4:30. By the time Jessica walks home, it's 3:30. . . . The other circumstances where I have left Jessica alone or with the two boys is that on occasion, I have left her there with the boys to go out with friends in the evening, not overnight. There have been a couple occasions where I've been called in to recovery late at night, and they're by a phone; usually a maximum of two hours. But there was two occasions when I did end up staying all night. There was two occasions where I ended up having to stay there all night due to no beds in the ICU. Jessica was by herself. When I got called in and knew about that, I ask her if she wants to go with me. The usual answer is no. She can call me at any time. When I told her that I was going to stay all night, I did call Dale, my ex, and tell him and he offered to have her come over there but Jessica said no and that she wanted to stay there, and that she was fine.

. . . I don't know exactly how many times I have left Jessica home alone with the boys after dark. Maybe ten times.

Jessica and Mr. Hageman also testified at the April 30, 2002, hearing. Jessica testified regarding the incident when the police were called to her house in California: she said that she and her mom were in the car getting ready to leave, and she denied that her mother sent her to the neighbor's house. She said that there were no boys around their California apartment, that boys were around Dale's house where she went after school, that one of the boys was sixteen or seventeen years old, and that she had broken a rule by "[letting] the guys in the house to play with the video games and stuff."

Jessica testified that her father had told her that he had a lot of evidence on her mom from having her followed in California, and that he had told Jessica that she would live in Arkansas the current year. She testified that he had gone through her purse and notebooks during her April visit in Arkansas. She admitted writing a poem with such lines as, "Guys want sex not just to flex." She testified that she had written a story about suicide, but that she had never thought about committing suicide and had never discussed suicide with a counselor. She stated that she knew of a sexual activity where "they stick two fingers in your vagina," but she stated that it had never happened to her and that she had talked about it only with her step-sister. She admitted writing a note saying that her mother "just threatens me. I rule."

Mr. Hageman also testified in the April 30, 2002, hearing. He testified that he was very concerned about Jessica being left alone at all hours of the day and night and on weekends. He said that he had found out that Jessica had been talking with her step-sister about sexual experiences with their boyfriends; that he went through her things after hearing conversations she had with her girlfriend; and that he had filed his petition for change of custody based on the report of a private investigator he had hired to follow Jessica in California. He said that Jessica was an unruly child, blatantly out of control unless he was "on top of her constantly." He said that he monitored her internet access and could "visually watch everything she does, no matter where I am in the house." He stated that he was "terrified about her sexual activity. . . . I talk to her every time she comes here about sexual activity. Jessica has contacted me on the phone when there were young men in the home." He stated that he thought that Jessica's current behavior would be very different if she had been living with him because she would not be allowed to make decisions on her own, and because they would be discussing things and talking to the counselor in areas that he did not know.

At the conclusion of Mr. Hageman's testimony, his counsel called as his next witness Charlotte Carlson, a psychological examiner and licensed counselor who had seen Jessica and Mr. Hageman. Without hearing this testimony, the trial court ruled, "I don't need to hear anymore. The motion to dissolve the ex parte order is denied. This kid is at risk. . . . There is no doubt about it."

In October and November of 2002, the trial court conducted hearings on Mr. Hageman's second petition for a change of custody. Evidence at the October hearing included testimony by Ms. Carlson, Mr. Hageman's wife Dana, Ms. Davis, and Mr. Hageman. Testimony at the November hearing was given by Mr. and Ms. Davis, Jessica, and Dr. William Collie, a behavioral medicine specialist who evaluated Jessica.

At the conclusion of the hearing, the court granted a change of custody to Mr. Hageman based upon a finding of a material change of circumstances. The trial court explained its ruling as follows:

I am going to change custody to the father. I want to remind the parties that this custody was done on an ex parte basis on some pretty substantial concerns made by a counselor, and that's not something I do very often. Now, we had a hearing immediately to actually find out what both sides [of] the story were. . . . And I went back, and I just- and reviewed the April 30 hearing, which was the hearing that I found to be the substantial hearing regarding what was going on with the child at that particular time on the temporary-custody issue.

And, first of all, let me say that there is no doubt in my mind that Ms. Davis loves her child and wants what's best for her child. I mean, this doesn't have anything in the world to do with anything other than parenting skills and who is strong willed, may be bipolar- I don't know that any of us know that right now- but needs some really strong supervision and parenting. And I'm not sure that the mother is, number one, capable of doing it, but she's not willing to look at the situation in that she is the parent and Jessica is the child. . . . But regarding the medication that if she didn't feel like discussing it or talking about it with her father or her stepmother, that she didn't have to, and that's part- and part of the problem is that we've been in litigation way too long. I mean, everybody's looking at what everybody else does under a microscope, and, you know, nobody can function as the perfect parent. I'm not expecting that from Ms. Davis; I'm not expecting it from Mr. Hageman. And to have everything that you do and everything that you say looked at, then, you know, you can't function as a parent with a child if everything you do or say is going to come up in court and be analyzed and be dissected.

. . . But when you have a child that is like Jessica, she's got to have some really strong supervision. I'm not saying that Mr. Hageman hasn't gone overboard. She's probably too closely supervised. But when you have to balance out the two with a child like this, too much supervision is better than not enough supervision.

. . . .

I can go through the- what was basically going on at the time of the April 30 hearing, which is where a lot of the problems were. She seems a lot better. And, you know, I'm not going to get into all of our different psychologists on this. I'm concerned about a psychologist that would give custody determination opinion, expert opinion, without [ever] having talked to one of the parents. And, you know, it's got to be hard for the parents . . .

But I went back and. . . first of all, we have the divorce, the new divorce, between Ms. Davis and Mr. Davis. We have the incident where the police were called. It's really not of a huge significance as to the details of it. It's that it happened. It's that the child was exposed to it and that there was police involved.

But my primary concern had always been, and continues to be, the mother's lack of supervision for this child, letting a thirteen-year-old spend the night by herself because the child doesn't want to go, and that's where I think Ms. Davis doesn't really grasp the problem, is that you don't give them the option. A parent doesn't say, "Do you want to go with me," or, "Do you want to stay home" to a thirteen-year-old, overnight. A parent makes the decision and tells the child what the child is going to do and certainly doesn't leave a child overnight alone at home.

And it's your lack of awareness of knowing what the right decision is, and we were in here before. I told you not to leave her alone. You made a different decision at a later time. I understand your rationale, that she had gotten older. I understand all that. But it doesn't make me believe that things are going to be any different when I told you not to do it and you did it anyway, that- and that was when I left custody with you.

But I think the child is at a very dangerous age, and she is going to need some pretty strong supervision. I think she'd rather be in California than Vilonia. I think there are a lot of kids that would rather be in California than Vilonia. And I do think she has a strong relationship with her mother, but I just- I just don't think her mother has got what it [takes] to parent this child during these adolescent years and I think that's evident in the record of April 30, and I don't see anything that's any different today, except a desire.

(Emphasis added.) The written order of change of custody was filed on December 30, 2002. In deciding whether a change of custody is warranted, the trial court must first determine whether there has been a material change in the circumstances of the parties since the most recent custody decree. Turner v. Benson, 59 Ark. App. 108, 953 S.W.2d 596 (1997). If a material change has occurred, the trial court determines custodial placement with the primary consideration being the best interest of the child. Id. Although we review child-custody cases de novo on appeal, we will not disturb the trial court's findings unless they are clearly against a preponderance of the evidence. Dunham v. Doyle, ___ Ark. App. ___, ___ S.W.3d ___ (November 19, 2003). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Turner v. Benson, supra. Since the question turns largely upon the credibility and demeanor of witnesses, this court defers to the superior position of the trial court to make such determinations. Id. The deference to be accorded to the trial court is even greater in cases involving child custody. Id.

Points On Appeal

The first point on appeal is whether the trial court's finding that a material change of circumstances existed after the previous adjudication of custody is clearly against the preponderance of the evidence. The trial court stated its concern that Ms. Davis lacked parenting skills regarding strong supervision and willingness to look at the situation in the role of parent, and the court stated its primary concern that Jessica lacked supervision when living with Ms. Davis. Having conducted a de novo review of the evidence, we hold that the finding of a material change of circumstance is not clearly against the preponderance of the evidence. Despite specific court orders that Ms. Davis properly supervise Jessica, she had spent the night alone on two occasions and was regularly unsupervised immediately after school. We defer to the trial court's assessment that the child was at a dangerous age and needed strong supervision, and that Ms. Davis lacked awareness of knowing what the right decisions were. We hold that the evidence demonstrated that a material change of circumstance had occurred after the trial court's initial decision not to change custody.

In her second point on appeal, Ms. Davis contends that the evidence does not support the trial court's decision to change custody, and that its decision to change custody is clearly erroneous. This second point is divided into three sub-points: that evidence of lack of supervision for a fourteen-year-old child is not sufficient to justify a change of custody, that the trial court did not properly weigh expert opinions, and that the evidence does not support the court's determination that Ms. Hageman is fit to parent an early adolescent.

In her first sub-point Ms. Davis complains that the change of custody was made for two reasons: because on two occasions when she was called in to work at night, she allowed Jessica to stay at home in bed rather than go with her; and because Ms. Davis failed to supervise Jessica three days a week for one to two hours. We have discussed the lack of supervision in addressing the first point of appeal in this opinion. In child-custody cases, the primary consideration is the welfare and best interest of the child involved; all other considerations are secondary. Walker v. Torres, ___ Ark. App. 924, ___ S.W.3d ___ (September 24, 2003). Because the question of whether the trial court's findings are clearly erroneous turns largely on the credibility of the witnesses, we give special deference to the superior position of the trial judge to evaluate the witnesses, their testimony, and the child's best interests. Id. Our de novo review of the evidence convinces us that in this particular case, the lack of supervision of this particular child was a significant factor justifying a change of custody.

The second sub-point of the second point on appeal is that the trial court did not properly weigh the expert opinions of Charlotte Carlson, who had been the Hagemans' family counselor for several years but had never evaluated the Davises, against the opinion of Isabel Van Sicklen, Jessica's California counselor. Again, we give special deference to the superior position of the trial court to evaluate and judge the credibility of the witnesses in child-custody cases. Dunham v. Doyle, supra. Furthermore, here the trial court voiced its concern "about a psychologist that would give custody determination opinion, expert opinion, without [ever] having talked to one of the parents" and stated that it would not "get into all of our different psychologists on this." Thus, the trial court essentially disregarded the testimony of the counselors, as was within its purview to do. There is no merit to this second sub-point on appeal.

Ms. Davis's third sub-point of the second point on appeal is that the evidence does not support the trial court's determination that Alan Hageman is fit to parent an early adolescent. Ms. Davis points to Ms. Van Sicklen's report and Jessica's testimony that Mr. Hageman called Jessica names and made her feel "stupid." Ms. Davis alleges that Mr. Hageman defrauded the court by denying that he had been informed about Dr. Collie's prescribing medication for Jessica. Ms. Davis characterizes as "untrue" allegations in Mr. Hageman's petition that he could provide a stable home and lived in a house rather than an apartment, and she alleges that he is evasive and not a good role model. She alleges that he fraudulently obtained the ex parte order by misrepresenting the visitation schedule in May and the time when Jessica should have been returned to California. She concludes that the trial court improperly weighed the evidence with regard to Mr. Hageman's ability to parent Jessica.

A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed; although we give matters of child custody a de novo review, we will not disturb the trial court's findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Turner v. Benson, supra. Our review of the evidence in this case does not leave us with the definite and firm conviction that the trial court erred in changing custody to Mr. Hageman.

Affirmed.

Stroud, C.J., and Pittman, J., agree.