ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
 

DIVISION IV

CA03-168

January 21, 2004

ROSE COLLIER HARRISON AN APPEAL FROM PULASKI

APPELLANT COUNTY CIRCUIT COURT

[PT94-6496]

V. HON. JOYCE WILLIAMS WARREN,

JUDGE

WILLIE DAVIS

APPELLEE AFFIRMED

Wendell L. Griffen, Judge

Rose Collier (Harrison) appeals from a circuit court order modifying custody of her daughter, Katelyn Davis, in favor of appellee Willie Davis, Katelyn's father. Appellant argues that the circuit court erred in changing custody and erred in denying her motion for a continuance. We affirm the circuit court's order.

Katelyn Davis was born to appellant on March 25, 1993.1 In November 1994, appellee filed a complaint to establish paternity. On May 5, 1995, an order of paternity was entered. Pursuant to this order, appellant remained the custodial parent, but was ordered to pay one-half of that portion of Katelyn's medical bills that were not covered by insurance. Appellee was awarded visitation and ordered to pay child support.

On March 13, 2002, appellee filed a motion for contempt, alleging that appellant had not paid her half of Katelyn's medical bills that were not covered by insurance. He also filed a motion for a change of custody, asserting that Katelyn was not receiving an "appropriate upbringing or adequate nurturing." The court scheduled a hearing for June 26, 2002. In an apparent response to appellee's request to hear the contempt motion and change-of-custody motion on the same day, the court reset the hearing date from June 26, 2002 to July 24, 2002. Due to a conflict of the special judge scheduled to preside over the matter, the hearing was again reset to October 9, 2002.

On October 8, 2002, the day before the hearing, appellant filed a motion to substitute counsel and to continue the proceedings. This motion explained that the proposed substituted counsel had a pre-existing conflict with the October 9 date. The court granted appellant's request to substitute counsel, but denied the motion for continuance. At the hearing, the court found that appellant was not in contempt of court, but granted appellee's request to modify custody due to appellant's extramarital cohabitation and failure to maintain a stable home, allegations of her marijuana use, appellant's testimony that the court determined to be untruthful, and due to her disregard for the court's orders, manifested by her efforts to thwart appellee's visitation with Katelyn. This appeal followed.

I. Change of Custody

Appellant's first argument is that the circuit court erred in changing custody. Appellant maintains that the evidence does not support a custody change because her circumstances, if anything, have improved since she married. She asserts that she provides a nurturing environment for Katelyn as demonstrated by the fact that Katelyn, who was nine years old at the time of the hearing, performs well in school. Appellant also argues that appellee's active involvement in Katelyn's education is not a material change in circumstances.

Citing Gerot v. Gerot, 76 Ark. App. 138, 61 S.W.3d 890 (2001), she argues that a contempt order, but not a change of custody, is the proper remedy for her alleged failure to allow appellee to visit Katelyn. Appellant further argues that the evidence concerning her marijuana usage was"weak" and that no witness personally saw her using marijuana. Finally, she counters that there has been no evidence or even any allegation that any of the men she has been involved with have been suspected of inappropriate conduct with Katelyn.

The evidence concerning a material change of circumstances is as follows. Appellee has served as a police officer with the Little Rock Police Department for eleven years and lives in the home that he purchased five years ago. He has been married to Terri Davis for five years; their son, Joshua, was born on June 25, 2002. Katelyn has never seen Joshua. Appellee testified that he was concerned for Katelyn's well being because appellant was living with different men in Katelyn's presence and because Katelyn would be left alone with adult males. He said that he was made aware of the different men with whom appellant was living because Katelyn would comment about the men living with her, to whom she referred by their first names only. Appellee also testified that he has never met appellant's husband and was not aware that appellant had remarried until he received the answers to the interrogatories in this case.

Appellee testified that he has not been allowed to visit Katelyn since the weekend of March 15, 2002. After talking with Kenneth Patterson, one of the men with whom appellant cohabited, and discovering that appellant no longer lived with Patterson, appellee filed his motion for a change of custody. He stated that at the time he did not know where Katelyn lived. After he received the answers to his interrogatories, he attempted to restart visitation, but appellant would not allow Katelyn to see him. Mrs. Davis corroborated appellee's testimony that he had not been allowed any visitation with Katelyn since shortly after he filed the motion for change of custody in March 2002.

Both appellee and his wife have been actively involved in Katelyn's school activities and other activities, such as Taekwondo. Appellee stated that Katelyn does well in school and has received citizenship awards and A-B honor roll awards. He testified that he missed Katelyn's baptism because appellant failed to inform him of the event. Both appellee and his wife testified that they provide things for Katelyn in addition to the child support that he pays, such as tuition for Taekwondo classes, hair appointments, clothing, and spending money when Katelyn travels. Appellee also testified that he had concerns about Katelyn's personal hygiene and that he had to teach her the importance of bathing and brushing her teeth. Katelyn's dental bills that were the subject of the contempt motion were incurred due to Katelyn's numerous cavities.

Kenneth Patterson testified that appellant and her two children lived with him in his home for approximately four months. He testified that after appellant's friends had visited, he smelled marijuana on her clothing and found marijuana seeds on their porch. He also stated that he found marijuana inside her car and that when he told her he did not like her using marijuana, she did not deny using it. Moreover, he stated that appellant's marijuana usage contributed to their relationship ending and that appellant moved out of his home in August 2001.

Appellant testified that she married Glen Harrison in February 2002. She admitted to cohabiting with Patterson, whom she intended to marry, but denied cohabiting with Harrison, whom she did marry. She admitted that she had moved eight times over the last nine years to be near or to relocate to a better neighborhood. She admitted that she generally signed a six-month lease and would basically move every year. Appellant testified that she and her husband were renting a home with a one-year lease. Mr. Harrison is employed at DC Global and earns $50,000 to $60,000 per year; appellant earns $23,000 per year as an employee of the City of Little Rock Housing and Neighborhood Program.

Appellant admitted that she never informed appellee of her marriage to Mr. Harrison and that appellee had never met her new husband. She testified that she and appellee usually end up arguing when they talk on the phone, but that she is able to talk to Mrs. Davis. Appellant denied that she refused to allow appellee to visit with Katelyn and stated that she did not know why he had not exercised visitation. She stated that since he filed his motion for a change of custody, she had not heard from appellee or his wife until approximately one month prior to the hearing.

Appellant also denied using marijuana. She admitted that she "may have" told appellee that she did not care what the (May 1995) court order required. However, appellant explained that she may have said that because appellee would become belligerent and forceful and would "throw up" the court order to her. She also stated that there are times that she does things that are not required by the court order, such as allowing appellee to visit with Katelyn even when it is not time for his visit according to the court order, and that was why she said she did not care what the court order required.

Appellant maintained that she is unable to attend some of Katelyn's school functions and other activities because they occur when she is working. Even though appellee paid for Katelyn's Taekwondo classes, appellant refused to take Katelyn to her classes after appellee filed his motion for change of custody. Appellant stated that she stopped taking Katelyn to her Taekwondo classes because she did not know whether appellee had paid for the classes. She admitted that she "did not make any effort" because she did not know if the classes had been paid for. However, she also admitted that she knew where appellee lived and worked.

Glen Harrison, appellant's husband, testified that appellant and her two children resided with him at his home before he and appellant were married. He stated that he had never seen appellant use marijuana and that he would not allow anyone to use marijuana in his house.

In his written order, the circuit judge found appellee was the "fit and proper parent who has demonstrated his care, love, and concern for his child . . . and his willingness to put her best interests first and foremost." The court further cited the fact that appellant

has had a life of instability and has had various residences for various reasons . . . she had lived in at least seven (7) places . . . . She has had various men in her life and these men have had access to her child . . . some of with whom Ms. Collier [Harrison] was co-habitating (sic). The Court believes that the child's moral upbringing is as important as is the child's nurture and care. The evidence and testimony has shown that the [sic] Ms. Collier (Harrison) does not provide a nurturing environment for this child.

The court further stated that appellee has a stable home and family life and that the court wanted Katelyn to have the benefit of that environment.

The court also found that appellant's testimony regarding why appellee has not seen Katelyn since March 2002 was not credible, as evidenced by the fact that appellant moved and did not inform appellee where they were living. In addition, the court found that appellant had denied appellee access to Katelyn and was convinced that appellant would continue to do so. The court also cited appellant's attitude "that she does not care what the court order says." However, the court clarified that the decision was not made to punish appellant, but was for Katelyn's best interest and stability.

The standard governing the review of custody modifications is well-settled. 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.2d 388 (2002). The circuit court's findings regarding a change of custody will not be reversed unless they are clearly erroneous. Id. A circuit court's finding of fact is clearly erroneous when, although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been committed. Lammey v. Eckel, 62 Ark. App. 208, 970 S.W.2d 307 (1998).

In an appeal from a custody order, we afford great deference to the circuit court's determination; there are no cases in which the superior position, ability, and opportunity of the trial court to observe the parties carries a greater weight than those involving the custody of minor children. Vo v. Vo, supra. While custody is always modifiable, our 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. Stellpflug v. Stellpflug, 70 Ark. App. 88, 14 S.W.3d 536 (2000). We hold that the circuit court did not err in changing custody to appellee.

Since the May 1995 order was entered, both parties have remarried. Remarriage of the noncustodial parent is a factor the court may consider when determining whether to change custody, but it may not be the only factor. Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767 (1996). However, to the extent that the court considered the parties' remarriages at the time of the hearing, appellee had been married for five years and appellant had been married for approximately eight months. Moreover, appellant had contemplated marrying two men in less than one year.

In any event, while appellant is correct that her home situation seemed to improve, that was not the only factor the circuit court considered. It is true that appellant was married at the time of the hearing. Yet, the fact remains that since the May 1995 order she moved nearly every year and cohabited with at least two men: Patterson, whom she left in August 2001; and Harrison, whom she married in February 2002. Despite Harrison's testimony to the contrary, appellant denied that she and Katelyn lived with Harrison before the marriage. The circuit court found appellant's testimony to be untruthful, and we defer to the circuit court's finding of credibility. See Vo. v. Vo, supra.

Our courts have stated that the unmarried cohabitation with a romantic partner or a custodial parent's promiscuous conduct or lifestyle, in the presence of a child, cannot be abided. See Taylor v. Taylor, 345 Ark. 300, 47 S.W.3d 222 (2001). Further, we have held that extramarital cohabitation in the presence of the children has never been condoned in Arkansas, is contrary to the public policy of promoting a stable environment for children, and may of itself constitute a material change of circumstances warranting a change of custody. Remick v. Remick, 75 Ark. App. 390, 58 S.W.3d 422 (2001). Simply because Katelyn performed well in school and appeared to be a well-adjusted child does not mean that she has not been harmed by appellant's illicit sexual conduct. Arkansas courts presume that illicit sexual conduct on the part of the custodial parent is detrimental to the children. Thigpen v. Carpenter, 21 Ark. App. 194, 730 S.W.2d510 (1987). Therefore, the circuit court's order is affirmable on this ground alone.

Appellant's argument that a contempt order is the proper remedy for her alleged failure to allow visitation is to no avail, because, as noted herein, the court cited other reasons for changing custody. The circuit court succinctly stated additional grounds warranting a change of custody in this case when it concluded in its oral findings that appellant was not willing to make the effort to provide Katelyn with the kind of life that Katelyn needs and does not even try to facilitate Katelyn's relationship with her father. Appellant failed to inform appellee when she moved, to inform appellee of her re-marriage, or even introduce him to the man who became Katelyn's stepfather. She made no effort to determine whether appellee had paid for Katelyn's Taekwondo class. Appellant simply refuses to communicate with appellee, even though she admitted that she could talk to his wife with no problem. The evidence supports that, rather than facilitating Katelyn's relationship with her father, appellant prevented appellee from exercising his visitation with Katelyn in what appears to be retribution for appellee filing a change-of-custody motion. A custodial parent's actions in alienating a child from his or her noncustodial parent may be sufficient grounds to warrant a change in custody. Carver v. May, 81 Ark. App. 292, 101 S.W.3d 256 (2003).

In addition, for the bulk of the time that has passed since the May 1995 order, appellant has not maintained a stable home environment. A custodial parent's failure to establish a permanent residence and to demonstrate stability in her own life is a factor the courts may consider when determining a change of custody. In re Titsworth, 11 Ark. App. 197, 669 S.W.2d 8 (1984). While appellant is to be commended for attempting to better her home environment, the circuit court cannot be faulted for considering that she relocated eight times in nine years. Also, the evidence supports that appellant either used marijuana in her home and car or allowed it to be used. A custodial parent's use of drugs is a proper factor for the court to consider when determining the best interests of the child. Rector v. Rector, 58 Ark. App. 132, 947 S.W.2d 389(1997).

Finally, we note appellant's argument that as someone who fathered a child out of wedlock, appellee is not above reproach. However, this argument is not timely for consideration in her motion to change custody, where the circuit court only considers what has taken place since the last custody order. See Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767 (1996). Therefore, we hold that the circuit court did not err in granting appellant's motion for a change of custody.

II. Motion for Continuance

Appellant's second argument is that the circuit court erred in denying her motion for a continuance. She asserts that she should have been granted a continuance because she presented "strong grounds" for a continuance, because appellee had previously been granted a continuance, and because the circuit court substituted counsel that it knew was unprepared and would be unavailable to represent appellant at the custody hearing.

Appellee's motion for contempt was originally scheduled to be heard on June 26, 2002, whereas the custody hearing was originally set for July 24, 2002. In an apparent response to appellee's request to hear the contempt motion and change-of-custody motion on the same day, the court reset the hearing date from June 26, 2002 to July 24, 2002. Due to a conflict of the special judge scheduled to preside over the matter, the hearing was again reset to October 9, 2002.

On October 8, 2002, appellant filed a combined motion to substitute counsel and a motion to continue the proceedings. This motion explained that Garry Corrothers, appellant's then-counsel, informed appellant on October 1 that he intended to file a motion to be relieved as her counsel. She immediately began searching for substitute counsel and on October 4, 2002, secured O.C. Sparks, of Clark and Byarlay Law Firm, to handle her case. The motion indicated that Mr. Sparks was already scheduled to represent another client at a Social Security hearing on October 9; therefore, appellant requested a continuance.

When notified by telephone of the request for a continuance, appellee's counsel objected. The circuit court granted appellant's request to substitute counsel, but denied the motion for continuance, citing appellee's objection and "other matters before the court." The denial was entered on the same day it was requested, October 8, 2002.

On October 9, the date of the contempt hearing and motion for custody, Mr. Tom Byarlay acted as substitute counsel for appellant. He conceded that the case had been continued twice, but asserted that he had not "had the proper chance to investigate the case and have a chance to do the interrogatories as they were supposed to be done." Appellee countered that appellant had been aware of the date of the hearing for quite some time and that appellant chose to put herself in the position of not being prepared. Appellee also noted that appellant had not been allowing visitation and that he wished to address that issue without further delay.

The court orally denied the motion for continuance. The court first noted that a continuance would leave the case open until February 2003, which was the earliest date when the case could be rescheduled. The court stated:

I would not have a problem continuing this if we could do it in a couple of weeks but the court's docket cannot accommodate a continuance until February, which is not fair. This needs to be resolved. When I got the joint motion for substitution of counsel yesterday, it was not accompanied by anything that would give the Court a reason for Mr. Corrothers withdrawing. The information was that Mr. Corrothers had advised Ms. Collier about the first of October that he was going to be filing a motion to withdraw. We had a hearing set today, which is the 9^th. That's awfully close to be withdrawing at the end of a case when you know a court hearing is set. Just because he would have filed a motion to withdraw does not mean that I would have granted the motion to withdraw.

An attorney ought to know that when they take a case that's set for a while that has a court date set, they should know that the court may or may not grant a continuance. So my thinking was, Mr. Corrothers either should have not asked to be withdrawn until and unless we get an indication as to whether the opposing counsel and the court will allow this case to be continued because what happens when you get a new lawyer, people want more time. And I understand that. But it was not my fault it was done like this. We need to get this taken care of. The motion was filed back in March for change of custody. The contempt was filed in March for change of custody. It's already been continued two times. We need to get this resolved, so we're on.

Nothing in the record indicates that Corrothers ever filed a motion to be relieved and appellant does not assert that Corrothers, in fact, filed a motion to be relieved. Instead, appellant now asserts that the circuit court should have either granted the continuance or should have retained Corrothers as counsel. She argues that, alternatively, the court could have granted the continuance and issued an order "ensuring Appellee's visitation rights would be honored" by issuing an order that appellant would "automatically" be held in contempt if appellee was not allowed visitation with Katelyn.

Appellant maintains that where a trial court grants a motion for substitute counsel, it is an abuse of discretion to allow the case to go forward without allowing the substitute counsel time to prepare. See, e.g, Butler v. State, 339 Ark. 429, 5 S.W.3d 466 (1999) (holding it was an abuse of discretion to deny a continuance to allow new counsel adequate time to prepare where the State failed to timely provide defendant and his counsel with full discovery of the names of the victims related to the specific counts until day of trial). She asserts that there was no way an attorney could prepare for a change-of-custody hearing in only twenty-four hours. However, her substituted counsel had more than twenty-four hours to prepare. Appellant retained the services of her new attorney on Friday, October 4, 2002, which was five calendar days before the Wednesday, October 9 hearing, and three business days before the hearing. There is nothing in the record to support that appellee delayed with discovery in this case, and the circuit court did not err in implicitly finding that neither the facts nor the legal issues in this case are so complex as to warrant a four-month extension in this case.

Appellant thus maintains the court should have offered relief that she did not request. She did not ask the court to either grant the continuance or to retain Mr. Corrothers as counsel. She plainly asked the court to both substitute counsel and grant a continuance. Moreover, appellant would have the circuit court assume that she would comply with an additional court order designed to ensure visitation when she had already failed to comply with the initial order awarding appellee visitation. Her novel proposition that the court could enter an order "automatically" finding her in contempt if she did not allow visitation was not made to the circuit court and is presented on appeal without citation to any authority.

It is clear that whether a motion for continuance should be granted lies within the discretion of the circuit judge and the circuit court's decision in this regard will not be overturned unless the circuit court abused that discretion by acting arbitrarily or capriciously. Roe v. Dietrich, 310 Ark. 54, 835 S.W.2d 289 (1992); Smith v. City of Little Rock, 279 Ark. 4, 648 S.W.2d 454 (1983). The circuit court should consider an attorney's conflicts that cause delays in preparing and presenting a case for trial; however, an attorney's trial schedule conflicts and convenience must be subject to the convenience of the circuit court in setting its trial or hearing docket. Johnson v. Coleman, 4 Ark. App. 58, 627 S.W.2d 564 (1982). Moreover, the Arkansas Supreme Court has stated that the simple fact that a lawyer has been hired just before trial, alone, is not a sufficient reason for holding the trial court abused its discretion in denying a continuance. Bolden v. Carter, 269 Ark. 391, 602 S.W.2d 640 (1980) (holding the trial court did not abuse its discretion in denying motion for a continuance notwithstanding that defendant did not obtain counsel until just before trial, where defendant did not demonstrate sufficient effort to obtain counsel and the trial court was obligated to administer its docket in an efficient manner with respect to a case that had been pending for a long time).

In short, there was no error in denying appellant's motion for a continuance, because the circuit court did not act arbitrarily or capriciously. The court was legitimately concerned with the allegations regarding appellant's failure to allow visitation, the fact that the case had already been continued twice, and the fact that if it granted a continuance the case would not be heard for four more months. Appellant's argument that she should have been granted a continuance because the court had granted appellee a continuance by consolidating the hearing on both motions is to no avail. Appellant apparently raised no objection to appellee's motion and also benefitted from having both motions tried the same day.

However, even if the trial court erred in denying the motion for continuance, appellant was required to demonstrate she suffered prejudice that amounts to a denial of justice. Smith v. State, 352 Ark. 92, 98 S.W.3d 433 (2003). Appellant has not demonstrated that she was prejudiced by the substitution of counsel. Her new counsel asserted that he needed time to "investigate the case and have a chance to do the interrogatories as they are supposed to be done," apparently because Mr. Corrothers did not prepare interrogatories. However, her counsel did not inform the court regarding the type of information that was necessary for him to obtain from interrogatories in order to fairly represent appellant. Further, while it is true that appellant suffered an adverse ruling because the court granted appellee's motion for a change of custody, adverse rulings against a party are not enough to show bias or prejudice. Gates v. State, 338 Ark. 530, 2 S.W.3d 40 (1999). Appellant prevailed on appellee's motion for contempt, which belies any argument that her counsel did not have time to adequately prepare. On these facts, we hold that the trial court did not err in denying appellant's motion for a continuance.

Affirmed.

Bird and Crabtree, JJ., agree.

1 Appellant has another daughter whose custody is not at issue in this case.