CA 09-1339Court of Appeals of Arkansas, Division IV.
Opinion Delivered January 19, 2011
Appeal from the Benton County Circuit Court, [No. DR-2003-1918-5], Honorable Xollie Duncan, Judge, Affirmed.
JOHN MAUZY PITTMAN, Judge.
The parties were married for twelve years, during which time they had two sons and a daughter. They separated in October 2003 and were divorced in April 2004 by a decree granting custody of the children to appellant. Appellee subsequently filed a petition for a change of custody based on appellant’s post-decree romantic relationship with and pregnancy by a married man with whom she was having a relationship prior to the parties’ divorce. The trial court granted the motion, awarding custody of the children to appellee. We reversed this order on appeal, holding that, because appellant’s relationship with this man was known to the trial court and predated the divorce decree, these factors did not constitute a material change of circumstances since entry of the initial decree that would support modification of the child-custody order. Blair v. Blair, 95 Ark. App. 242, 235 S.W.3d 916 (2006). Subsequently, in June 2007, the parties agreed to an order granting custody of their eldest son
to appellee because he was suffering from educational and behavioral difficulties and would benefit from living with his father. In May 2009, appellee filed a petition seeking custody of the two children, both teenagers, remaining in appellant’s custody. After a hearing, the trial court entered an order granting appellee custody of his daughter while leaving her younger brother in appellant’s custody. On appeal, appellant argues that the trial court erred in finding that there had been a material change of circumstances and in entering an order that would separate their daughter from her younger brother. We find no error, and we affirm.
The principles governing the modification of custodial orders are well settled:
The primary consideration is the best interest and welfare of the child. All other considerations are secondary. Custody awards are not made or changed to punish or reward or gratify the desires of either parent. 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. The burden of proving such a change is on the party seeking the modification.
Harris v. Grice, 97 Ark. App. 37, 41, 244 S.W.3d 9, 13 (2006). The superior position, ability, and opportunity of the trial court to observe the parties carries great weight in cases involving children, Watts v. Watts, 17 Ark. App. 253, 707 S.W.2d 177 (1986), and we therefore give special deference to the trial court’s assessment of the credibility of the witnesses in child-custody cases. Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d 520 (1999). We review the evidence de novo on appeal, but we will not reverse the findings of the court unless it is shown that they are clearly contrary to the preponderance of the evidence. Dunham v. Doyle,
84 Ark. App. 36, 129 S.W.3d 304 (2003). A finding is clearly against the preponderance of the evidence when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Id.
We find no such error in the case at bar. Subsequent to the prior custody order, appellant’s former paramour obtained a divorce and married appellant, moving into the home with her and the children. Police reports and contemporaneous statements by appellant and her present husband documented a violent domestic disturbance between them in the home while the children were in their custody. The fighting was sparked by the suspicions of appellant’s present husband that she was then involved in a romantic relationship with a third man. Both appellant and her husband testified at trial that they had lied to the police about the blows exchanged and injuries inflicted and that the incident was merely a disagreement. Based on the demeanor of the witnesses, the trial judge expressly found this testimony to be incredible. The judge did, however, believe statements of the children that reflected chronic fighting and arguments between appellant and her present husband. There was also undisputed evidence that the academic performance of the parties’ daughter was in sharp decline, repeating a pattern of behavior experienced by their older son while in appellant’s custody that ultimately resulted in psychological, legal, and behavioral problems in addition to academic decline and failure. On this record, given the introduction of a new adult into the household and the subsequent domestic discord and negative effect upon the children, we
think that the trial judge properly found a material change of circumstances and that a change of custody would be in their daughter’s best interest.
Finally, appellant argues that there were no exceptional circumstances permitting the separation of the parties’ daughter from her younger brother, who remained in appellant’s custody. While the law generally requires such circumstances, it is not applied with mechanical rigidity. See Riddle v. Riddle, 28 Ark. App. 344, 775 S.W.2d 513 (1989). In the present case, the separation of the siblings was already an accomplished fact by virtue of appellee having been granted custody of the eldest son while the younger children remained in the custody of the mother. Furthermore, should this rule be applied in the present case, the reasonable result would be to place the youngest child in appellee’s custody to avoid separation. However, appellee has not filed a cross-appeal, and we will not grant an appellee affirmative relief that has not been requested. See Hoffman v. Gregory, 361 Ark. 73, 204 S.W.3d 541 (2005).
GRUBER and GLOVER, JJ., agree.