Unruh v. Grist ( 2013 )

Cite as 2013 Ark. App. 584ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-13-171
Opinion Delivered October 23, 2013
LYNDSEY UNRUH
APPELLANT APPEAL FROM THE HOT SPRING
COUNTY CIRCUIT COURT
[NO. DR-2008-131-II]
V.
HONORABLE CHRIS E WILLIAMS,
JUDGE
JONATHAN GRIST
APPELLEE AFFIRMED
JOHN MAUZY PITTMAN, Judge
This case involves custody of a child born to the parties in 2007. The child’s mother,
appellant Lindsey Unruh, appeals from an order granting a change of child custody to the
child’s father, appellee Jonathan Grist. For reversal, appellant argues that the trial court
clearly erred in finding that there was a material change in circumstances warranting a change
of custody; in finding that the change of custody was in the child’s best interest; and in
finding facts that were contrary to the evidence. We affirm.
Appellant was awarded custody of the child pursuant to an agreed order entered on
July 17, 2008, and appellee was granted visitation and ordered to pay child support. Appellee
filed a motion for change of custody in May 2012 asserting, inter alia, that appellant had
become unstable to the point where her continued custody of the child would be
detrimental to the child’s physical health and mental well-being. Appellant filed an answer
constituting a general denial of grounds for a change of custody, accompanied by a
Cite as 2013 Ark. App. 584counterclaim for permission to move with the child to Mississippi. After a hearing, the trial
court granted appellee’s motion for a change of custody, and this appeal followed.
The primary consideration in child-custody cases is the welfare and best interest of the
children; all other considerations are secondary. Madden v. Madden, 2012 Ark. App. 582, ___
S.W.3d ___. A judicial award of custody should not be modified unless it is shown that
there are changed conditions that demonstrate that a modification is in the best interest of
the child, or when there is a showing of facts affecting the best interest of the child that either
were not presented to the trial court or were not known by the trial court at the time that
the prior custody order was entered. Id. Where the trial court fails to make specific findings
regarding a material change of circumstances and no special findings are requested, we are
permitted on de novo review to conclude that there was evidence from which the trial court
could have found such changed circumstances. Woods v. Woods, 2013 Ark. App. 448; Chaffin
v. Chaffin, 2011 Ark. App. 293; Erickson v. Erickson, 2010 Ark. App. 302. Generally, courts
impose more stringent standards for modifications of custody than they do for initial
determinations of custody. Madden, supra. The reasons for requiring these more stringent
standards for modifications than for initial custody determinations are to promote stability and
continuity in the life of the child and to discourage the repeated litigation of the same issues.
Id.
When a case involving the custody of children is presented to us on appeal, we
recognize the superior position, ability, and opportunity of the trial court to observe the
parties, and we therefore give special deference to the trial court’s assessment of the
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Cite as 2013 Ark. App. 584credibility of the witnesses. Davis v. Davis, 2011 Ark. App. 693. We review the evidence
de novo on appeal, but de novo review does not mean that the findings of fact of the circuit
judge are dismissed out of hand and that the appellate court becomes the surrogate trial
judge. Thus, we will not reverse the findings of the court unless it is shown that they are
clearly contrary to the preponderance of the evidence. Id. 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.
The record shows that appellant was employable, but unemployed, and that she had
moved at least five times since the entry of the 2008 order. Those moves included one
instance where she was permitted to move into the home of appellee and his new wife
because she had nowhere else to go, and another period where she alternated between living
with her parents and living in Mississippi. There was evidence that, if found to be credible,
would support a finding that appellant frequently left the child in the care of her parents,
who were given to binging on controlled substances and who had on occasion returned the
child to appellee with feces in her panties. A matter of significant concern is a repeated
pattern of appellant’s disrupting appellee’s relationship with the child by refusing visitation,
taking the child from appellee at times when he was exercising visitation, and not permitting
appellee access to the child’s school. There was also a great deal of evidence that appellant
had a number of chaotic relationships with various men that were characterized by breakups
and reunions such that she was unsure which of these men was the father of her second child.
In contrast, the record shows that appellee is married, has shown measured restraint in the
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Cite as 2013 Ark. App. 584face of appellant’s provocations, and has maintained both a stable marital relationship and
steady employment. Instability of the type manifested by appellant was found to constitute
a material change of circumstances in Davis, supra, and on this record we cannot say that the
trial court clearly erred in finding a change in circumstances or that a change of custody to
appellee was in the child’s best interest.
Affirmed.
GLADWIN, C.J., and WOOD, J., agree.
The Graham Law Firm, by: James Lucas Graham, for appellant.
Andrew Clark, for appellee.
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