                               Cite as 2014 Ark. App. 134



                ARKANSAS COURT OF APPEALS
                                      DIVISION IV
                                     No.CV-13-660


                                              Opinion Delivered   February 19, 2014

 GINGER LYNN SAMPLEY, now                     APPEAL FROM THE CRAWFORD
 BLACKWELL                                    COUNTY CIRCUIT COURT
                                              [NO. DR-2002-291]
                              APPELLANT

 V.                                           HONORABLE MICHAEL MEDLOCK,
                                              JUDGE
 JAMIE RAY SAMPLEY

                                APPELLEE AFFIRMED

                             RHONDA K. WOOD, Judge


       Appellant Ginger Sampley Blackwell and appellee Jamie Sampley divorced. Since

2008, Jamie has had custody of the parties’ now twelve-year-old daughter.             Ginger

challenges the circuit court’s April 13, 2013 order denying her motion to modify visitation

and motion to modify custody and support. We affirm the circuit court.

      In 2010, Ginger filed several motions seeking, among other things, to modify

visitation, custody, and child support. On July 10, 2012, the circuit court entered an

agreed order that left custody with Jamie and modified Ginger’s visitation schedule. The

following month, Ginger filed another motion to modify child custody, citing

circumstances occurring before the July 10, 2012 order that she alleged amounted to a

material change in circumstance warranting a change in custody to her.
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       A hearing was held on Ginger’s motion on April 1, 2013. At the beginning of the

hearing, Jamie’s attorney made an oral motion to restrict testimony to evidence that had

occurred since the July 2012 order. Ginger did not object, and the circuit court granted

the motion. At the conclusion of the hearing, the circuit court found Ginger failed to

present proof of a material change of circumstances. The court also stated that the parties

should have litigated the evidence presented at the hearing back in July 2012 when

instead, the parties indicated to the court they reached an agreement which resulted in the

agreed order. The court denied Ginger’s motion for change of custody and awarded

attorney’s fees to Jamie.

       We review child-custody cases de novo, but we will not reverse a circuit court’s

findings unless they are clearly erroneous. Taylor v. Taylor, 353 Ark. 69, 110 S.W.3d 731

(2003). Because the question of whether the circuit court’s findings are clearly erroneous

turns largely on the credibility of the witnesses, we give special deference to the superior

position of the trial judge to evaluate the witnesses, their testimony, and the child’s best

interest. Sharp v. Keeler, 99 Ark. App. 42, 256 S.W.3d 528 (2007).

       First, Ginger contends on appeal that the circuit court erred by failing to find a

material change in circumstances. The record reflects that the judge heard testimony from

both parties as well as their witnesses. Ginger’s alleged change of circumstances included a

purported strained relationship between the minor child and her step-mother and the fact

that the minor child, age twelve, was sometimes left at home alone after school for short

periods of time. Our court has repeatedly held that in order to make changes to custody or

visitation, the party seeking modification must first demonstrate that a material change in

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circumstances affecting the best interest of the child has occurred. Byrd v. Vanderpool, 104

Ark. App. 239, 290 S.W.3d 610 (2009). Following evidence on these issues, the court

found that a material change had not occurred. The court admittedly was frustrated that

the appellant filed her motion only one month after entry of the agreed order. Based on

the court being in the best position to assess credibility and weigh the evidence, we hold

that the court’s finding was not clearly erroneous.

       Next, Ginger contends that the circuit court erroneously failed to consider relevant

evidence supporting a modification in custody. The court limited testimony to incidents

occurring after the previous hearing and agreed order. In its ruling from the bench, the

circuit court stated that all of Ginger’s allegations against Jamie could have been litigated at

the July 2012 hearing and that her proof did not rise to the level of a material change in

circumstance. Our supreme court has held that when circumstances affecting the best

interests of the child were not presented to the trial judge at the time the original custody

order was entered, they can be considered in determining whether a material change of

circumstances has occurred. Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d 520 (1999).

This is not the case, however, when the parties were aware of the circumstances and

entered into an agreement that is approved by the court. Orantes v. Orantes, 2011 Ark.

159, 381 S.W.3d 758. Here, as evidenced by her pleadings, Ginger knew of the incidents

prior to the July 2012 agreed order. It thus was not an error for the court to exclude this

evidence.

       Finally, the court awarded attorney’s fees to Jamie following the May 2013 hearing,

and Ginger contends on appeal that if we reverse the circuit court’s other ruling, we

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should also reverse the award of attorney’s fees to Jamie. Because we are affirming the

circuit court on all other points, we also affirm the award of fees.

       Affirmed.

       HARRISON and WHITEAKER, JJ., agree.

       Milligan Law Offices, by: Phillip J. Milligan, for appellant.

       Shannon Foster, for appellee.




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