Before Bridges, C.j., Payne, And Southwick, JJ.
The opinion of the court was delivered by: Payne, J.
DATE OF JUDGMENT: 5/13/97
TRIAL JUDGE: HON. ANTHONY THOMAS FARESE
COURT FROM WHICH APPEALED: CHANCERY COURT OF BENTON COUNTY
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
TRIAL COURT DISPOSITION: MODIFICATION OF CHILD CUSTODY; CHANGE OF CUSTODY OF ONE CHILD FROM APPELLANT TO APPELLEE
PROCEDURAL POSTURE AND ISSUES PRESENTED
¶1. This case is before the Court on appeal of an order modifying child custody entered by the Chancery Court of Benton County, the Honorable Anthony Thomas Farese, presiding. Feeling aggrieved, Angela timely perfected this appeal, challenging the chancellor's modification of custody. After reviewing the record, the briefs of the parties, and the applicable precedents, we affirm the chancellor's decision.
¶2. Angela and Nathan Brawley were married on February 17, 1981, following a three week courtship. This union produced two children: Kenneth Brawley, born in 1983 and Cody Brawley, born in 1993. After separating in April, 1995, the couple filed a joint petition for divorce on the grounds of irreconcilable differences, along with a property settlement agreement and child custody arrangement. A divorce was granted to Angela and Nathan by order of the Benton County Chancery Court on September 22, 1995. Incorporated as part of the judgment of divorce was the property settlement agreement and the child custody arrangement.
¶3. The child custody agreement provided Angela with full custody of both minor children, with Nathan enjoying reasonable visitation rights. Nathan agreed to pay child support in the amount of $265 per month, as well provide insurance for the children and pay all of the children's medical bills not covered by the insurance. On February 11, 1997, Nathan filed a petition for modification of child custody, seeking a change of custody from Angela to Nathan, as well as other related relief. On February 26, 1997, Angela filed her answer and counter-complaint, denying Nathan's claim that custody should be modified and seeking an increase in child support as well as a contempt citation against Nathan for his failure to maintain insurance on the children. Following a trial on the merits, the chancellor modified the original child custody arrangement to award Nathan full custody of Cody. The child support obligations of Nathan were suspended. Further, Nathan and Angela were charged with the respective health care costs of the child in their custody, including insurance. *fn1
¶4. Nathan and Hattie, Nathan's present spouse, testified in support of the custody modification. Nathan testified at length about his concerns regarding the children's well-being. First, Nathan testified that Angela and the children resided in a small two bedroom house. At one point, according to Nathan, seven people resided there, including Angela's boyfriend. Second, Nathan maintained that an infection which developed in Cody's genital area was due to poor hygiene. Third, Nathan pointed to the fact that Cody was not taken for his vaccinations on schedule as evidence of Angela's poor care for the children. In addition, Nathan testified that he provided Angela with funds for Kenneth to visit a dentist; however, Angela informed him that she planned to spend the money otherwise. Fourth, Cody exhibited behavior which Nathan believed indicated that he was being exposed to explicit sexual conduct in the home. Nathan's basis for this very serious allegation was grounded primarily in an incident where Nathan's wife, Hattie, discovered Cody in bed with his underwear pulled down masturbating. According to Nathan, when Cody was asked about his activity, he said that his older brother Kenneth taught him. Cody and Kenneth shared a bed in Angela's home. Further, Cody would grab himself between the legs and refer to his penis as his gun. When confronted about this behavior, Nathan testified that Angela told him to come and get the children if he did not want them to live with her. Nathan also testified that Cody would use obscene gestures in the form of sticking his middle finger up at people. Cody also spit on people, and Nathan asserted that Angela vowed to teach both of the boys to spit in both his and Hattie's faces. After Nathan met and married Hattie, the visitation schedule with the boys deteriorated, due to the fact, Nathan believes, that Angela was jealous of his marriage to Hattie and the fact that Hattie cared deeply for Cody and Kenneth. When the children visit, Nathan testified that Angela calls them and agitates them. Nathan related one incident over the Christmas holiday of 1996 when Angela and her boyfriend came to get the children. As they left, Angela stripped Cody of clothes Nathan had bought for him and threw them in the yard. *fn2 Nathan related a disturbing conversation he had with Cody where Cody expressed a desire to come and live with him and a desire that Nathan kill Angela so that he could come and live with Nathan. Hattie also related that Cody told her that Angela put him in hot water.
¶5. Nathan's relationship with Kenneth is almost nonexistent, with Angela and Nathan blaming each other for this decline. Kenneth, the oldest child, had a history of problems, ranging from difficulties succeeding in school because of excessive absences to personal emotional problems which caused him to threaten harm to Hattie. In addition, Kenneth had received treatment for suicidal tendencies. Nathan believes that Angela cared ...