Scherm v. Scherm

Tom Glaze, Judge. This appeal arises from a post-decretal divorce action wherein the appellant/father filed an action seeking custody of the parties’ minor children, twin sons, ages four, and another son, age seven. Appellant contends the trial court erred in finding the evidence was not sufficient to warrant a change of custody. We agree and therefore reverse. First, we recognize the oft-stated rule that this Court will not reverse the chancellor unless it is shown that the lower court decision is clearly contrary to a preponderance of the evidence. Particularly where the credibility of witneses appearing before the chancellor is concerned, this Court attaches substantial weight to the chancellor’s findings on material issues of fact. Digby v. Digby, 263 Ark. 813, 567 S.W.2d 290 (1978). The primary consideration in awarding the custody of children is the welfare and best interests of the children involved, and other considerations are secondary. Id. These same standards are applicable in a change of custody case. See Bond v. Rich, 256 Ark. 51, 505 S.W.2d 488 (1974); and Sweat v. Sweat, 9 Ark. App. 326, 659 S.W.2d 516 (1983). From our review of the entire record, we believe the evidence clearly and decidedly preponderates in favor of a change in custody. In this custody case, there is an unusual amount of consistent testimony, at least on an essential factual issue of importance here. Particularly, appellee concedes a style of life since the parties’ divorce that includes entertaining overnight male visitors when her three sons are at home. She admits sexual activity with these men during these visits. In fact, appellee continued such conduct after appellant filed this action and up to one week prior to trial. The evidence in this respect involves appellee’s relationships with two men — a married man, Mark Cress, and Jeffrey Bradbury. She first became acquainted with Bradbury sometime in the fall of 1981. Apparently, they saw each other for five to six months. He said that he had stayed at appellee’s apartment when the children were there and engaged in sexual relations with her during that period of time. He also related occasions when appellee and the children spent the night with him in Little Rock, Arkansas. After Bradbury and appellee stopped seeing each other, she commenced her affair with Cress during the summer of 1982. Cress admitted he had spent the night at appellee’s home when the children were present, and that he had been in her home every day, including weekends. He conceded that he engaged in sexual activity with her when the children were at home, but he could not give an exact number of occasions. He stated that he did not remember observing appellee preparing the children for church, nor did he remember her taking them. Cress also admitted there were occasions when he and appellee left her home in the morning to take the three boys to their babysitter. He explained these were occasions when he had parked his truck somewhere else or when it was “broken down.” Finally, appellee testified that she had engaged in sexual relationships eight or ten times with Mr. Cress at her home when the children were there. The most recent occurrence was a week prior to trial. She stated that “nothing ever happened in front of my children,” but she also indicated, “I’m not saying that they . . . that they don’t know. I’m just saying that I don’t know that they know.” Appellee testified that she did not have any plans “to stop that type activity.” Appellee did indicate that, if she were so instructed by the court, she would refrain from sexual intercourse with males in the home when the children were present. Appellant’s testimony enlarged on that given by appellee, Bradbury and Cress. He enumerated countless times that he had observed Bradbury and Cress at appellee’s home when the children were present. He stated that on one occasion appellee admitted that Bradbury had been staying in her home. Appellant also testified critically about specific matters concerning appellee’s failure to properly clothe and care for the boys. He related that until he discussed the matter with appellee, she had failed to properly treat one son’s case of scabies. Appellant concluded that he would provide more for the boys in the way of clothes and physical things and that they would be brought up in a more moral atmosphere. If given custody of the children, appellant intends to live in a farmhouse located about a half-mile from his parents’ home. His extended family, including his mother and sister-in-law, have volunteered to assist him with the children. The sister-in-law, Mary Scherm, testified that appellant cooks dinner for the boys and that he provides them with a good environment. At the conclusion of trial, the trial judge concluded that the evidence did not justify a change in custody, but he did order that appellee, while a single person, shall not permit any man romantically involved with her to stay overnight at her residence while the children are there. Obviously, in making such order, the chancellor recognized the precarious situation in which the children have been placed. Aside from any moral argument, appellee has had a relationship with three men since her divorce, and the children have experienced contact with at least two of them. Appellee’s amenability to having men in the house on a regular, overnight basis provides the children with an impermanent, unstable situation. Appellee’s actions during the two years preceding this action have been neither wholesome nor in the best interests of her children. Appellee clearly voiced no intention to change her promiscuous lifestyle unless ordered to do so by the court. Obviously, such an order places the court and the appellant in a position to continuously monitor appellee’s conduct, which is a situation we feel is not demanded by the facts in this case. There is no evidence in the record indicating that since the parties’ divorce decree appellant could not provide a good, stable environment for the children. To the contrary, the appellant, with the assistance of his extended family, is in a position to provide not only a good home, but also the physical and moral care these young children require. Of course, all of the evidence in this record is not unfavorable to the appellee. However, considering all circumstances in this case, we believe the greater weight of the evidence compels the conclusion that the children’s best interests will be served by placing them in the custody of the appellant. In reversing and remanding this cause, we direct that the trial court consider, the parties’ present circumstances in establishing visitation rights for the appellee. Reversed and remanded. Mayfield, C.J., and Cooper, J., dissent.