FROM THE LOGAN COUNTY CIRCUIT COURT, SOUTHERN DISTRICT [NO.
42BDR-16-48] HONORABLE DAVID H. MCCORMICK, JUDGE
Stewart, for appellant.
Walters, Gaston, Allison & Parker, by: Derick Allison,
WAYMOND M. BROWN, JUDGE.
appeals from the circuit court's order changing custody
of EA. and AA from appellant to appellee. Appellant's
sole argument on appeal is that the circuit court erred in
not requiring proof of a material change in circumstances
before changing custody. We affirm.
a resident of New Mexico, filed a complaint for paternity and
to establish a visitation schedule on July 7, 2016, seeking
an appropriate visitation schedule and amount of
support-though he had "been voluntarily paying support
for the minor children for some time"-upon a
determination of paternity. Following a March 2, 2017
hearing, the circuit court entered a temporary order on
September 12, 2017, establishing appellee's paternity of
the minor children, giving custody of the children to
appellant, and awarding child support to
filed a verified petition to modify visitation on October 19,
2017, based on a "physical altercation with the oldest
child, [EA], age 14"; appellee's "treatment of
[EA.] during visitation [that was] disrespectful and
offensive"; and because "appellee "yell[ed],
use[d] profanity and call[ed] the child vulgar names."
Appellant sought termination of visitation between appellee
November 1, 2017, appellee filed a motion to modify custody,
asserting that appellant "[had] insisted on a course of
behavior so as to discourage the parties' minor children
from attending school regularly, recognize the value of hard
work, and otherwise applying themselves at whatever task they
may be doing." He went on to assert that appellant had
"created an unwholesome environment wherein her
laziness, inattentiveness, and lack of structure [were]
negatively impacting the minor children." Accordingly,
appellee asserted that appellant had "established a
situation that [was] detrimental to the best interest of the
minor children." He sought custody and child support.
a hearing on April 5, 2018, the circuit court entered an
order on May 29, 2018, in which it found that it was in the
children's best interest to award custody of the children
to appellee with standard visitation awarded to appellant.
Additionally, appellant was ordered to pay child support.
This timely appeal followed.
cases are reviewed de novo, but we will not reverse a circuit
court's findings of fact unless they are clearly
erroneous. A finding of fact is clearly erroneous if,
after reviewing all the evidence, the appellate court is left
with a definite and firm conviction that a mistake has been
made. The question of whether a circuit
court's findings are clearly erroneous turns largely on
the credibility of the witnesses; therefore, we give special
deference to the circuit court's superior position to
evaluate the witnesses, their testimony, and the child's
best interest. There are no cases in which the circuit
court's superior position, ability, and opportunity to
observe the parties carry as great a weight as those
involving minor children. The primary consideration in
child-custody cases is the welfare and best interest of the
children; all other considerations are
argues that the circuit court erred in not requiring proof of
a material change in circumstances before changing custody
from appellant to appellee. She essentially argues that this
matter was a modification of custody instead of an initial
determination of custody, the former of which has the more
stringent standard of requiring a material change in
circumstances. This court is unable to address this argument.
following exchange occurred below between the circuit court,
appellee's counsel, and appellant's counsel:
The Court: All right. Counsel, looking through the file, I
know we let [appellee] go first, but the file, to me,
reflects we had a petition for establishment of paternity, we
had a temporary agreed order that said that they're [sic]
was paternity and set up visitation and other-addressed a lot
of issues. It's pretty much like a final order but it
says temporary order and the petitions after that say file to
modify the ...