Hollinger v. Hollinger

Terry Crabtree, Judge, concurring. I join the majority opinion in this case but write separately to address some of the issues addressed in the dissenting opinions.

I reiterate Judge Robbins’s statement in the majority opinion that on appeal of a chancery decision we review the case de novo, and if the chancellor’s decision can be sustained on grounds other than those he made, we will affirm. In reviewing the record, the following facts would support the chancellor’s decision that a change of circumstances had occurred:

1.The appellant and children moved from Monticello, the childhood home, to Conway, leaving friends and relatives in Monticello.

2.The appellant did not have relatives in the Conway area.

3.When the appellant moved to Conway, she went to work for ACXIOM, where she worked from 8-8:30 a.m. to 5-5:30 p.m. She would take the children home from school, go back to work, then go home again for an hour or two, and then return to work until late at night.

4.The appellant took a second job at Subway where she worked early in the mornings until 3 p.m. on Saturdays and Sundays.

5.During the time the appellant was at work, the children, the oldest being fifteen at the time of the hearing, did most of the domestic chores and helped one another with school work and other things.

6.The conflict between the mother and daughters continued to escalate after they moved to Conway.

7.The appellant started calling the oldest daughter “slut” and “whore” because of her makeup and dress.

8.The appellant called the younger children “idiots” and “stupid” and Christy, “dumb-ass,” for failure to do things as she directed.

9. On at least two occassions, the oldest daughter expressed severe depression in her diary.

10. The oldest and second-oldest daughter testified to several incidents where the appellant hit them in the head, slapped them, or slammed them up against a wall.

The foregoing facts are contained in the record; they are not generalizations but solid facts testified to by the children or the parties. In my opinion, these facts are sufficient to find a material change of circumstances.

The second prong of the analysis is whether a change in custody is in the best interest of the children. Again, we turn to the facts of the case. The dissenting opinions indicate that the conflict between the mother and daughter was a normal mother-daughter relationship during a difficult period of time. Further, Judge Rogers states that custody should not be changed on the whim and fancy of children. While I agree with this statement to a certain degree, I cannot agree that the facts of this case are merely a whim of the children. Two of the children testified to the fact that the appellant had a temper, and she had slapped them and slammed them against a wall. Further, both of the older children testified to the appellant referring to the oldest daughter as a “whore” and “slut” because of her dress or makeup. To me, this is not a minor dispute between parent and child. The words are not innocuous, especially to a young girl the age of the appellant’s oldest child. Further, the oldest child and the appellant evidently engaged in mutual combat on at least two occassions. Christy, the second-oldest daughter, testified that Tia, the oldest daughter, was trying to defend herself and get the appellant off of her. I cannot consider a running battle between parent and child, where the use of force as described in this case is employed, a whim or a fancy. I cannot consider words such as “whore” and “slut” words that are normally used in discourse between mother and daughter. These words are demeaning to the child and uttered with the intent to cause harm to the child. These facts testified to by the children are sufficient, when coupled with those stated above, to justify a change in circumstances. Even though there are other facts testified to in the record, I will not discuss them further for fear that I discard the robe of judicial impartiality and step into the shoes of the advocate. To do so would betray my obligation to the parties and the children and do nothing more than aggravate the wounds that the parties have so ably inflicted upon each other and the children during the course of this litigation. Unfortunately, the children in this case were not represented by counsel, and we do not have an advocate for their position other than the findings of the trial court, which is charged with the obligation of protecting the best interest of the minor children of our state. Unlike Judge Rogers, I am not willing to set aside the chancellor’s determination that evidently was based to a large degree on the testimony of the children. I am not willing to say that all their testimony was false or mistaken. The trial court is in the better position to do that. The trial court has had the witnesses before it and has assessed their credibility. I am not willing to second-guess the chancellor’s determination in that regard and replace it with my own.

The chancellor in this case, as well as many other cases we review, attempted to heal the wounds of the parties after trial in announcing his decision by referring to the parties in a more positive light than the parties referred to each other. Chancellors have tried to be a part of the solution of mending torn families and relationships rather than to be a part of the mechanism of their destruction. We would do well to learn from the trial judges in this state to respect the litigants who appear before them and to start the healing process as soon as possible. Unfortunately, we do not see the effects of our often brutal written comments. One can only imagine the effect they have on children who love both parents. One can only imagine the effect that words in a written opinion that reduce children’s hopes and fears to a whim or fancy have on the children, not to mention the fact that once again, they have no advocate to assert their interest or maintain the integrity of their statements.

For the foregoing reasons, I concur in the majority opinion.