Leach v. Leach

Marty Ryan LEACH v. Amy Varner LEACH

CA 96-930                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division I
                Opinion delivered April 30, 1997


1.   Marriage -- strong presumption that children born of marriage
     are legitimate. -- A strong legal presumption exists that a
     child born during marriage is the legitimate child of the
     parties to that marriage. 

2.   Marriage -- testimony about child's paternity allowed of
     mother, husband, and putative father under statute --
     presumption of legitimacy overcome only by clear and
     convincing evidence. -- Arkansas Code Annotated  16-43-901
     (Repl. 1993), permits a mother, her husband, and a putative
     father to testify about the paternity of a child; however, the
     strong presumption of the legitimacy of a child born of
     marriage continues to be one of the most powerful presumptions
     in Arkansas law and only upon clear and convincing evidence
     may the court find this presumption overcome.

3.   Marriage -- decision of chancellor clearly contrary to
     preponderance of evidence -- case reversed and remanded for
     reevaluation of custody and visitation issues. -- Where the
     chancellor's determination that the child born of the marriage
     was illegitimate was clearly not in the best interest of the
     child, nor was it a goal of either of her parents, the
     appellate court, upon de novo review, found that this decision
     was clearly contrary to the preponderance of the evidence; the
     case was reversed and remanded so that the chancellor could
     reevaluate the evidence and witnesses with regard to the
     custody, visitation, and support issues; custody and
     visitation should be determined solely on consideration of the
     best interest of the children.


     Appeal from Ouachita Chancery Court; Edward P. Jones,
Chancellor; reversed and remanded.
     Jack W. Barker, for appellant.
     Jeffery C. Rogers, for appellee.

     John B. Robbins, Chief Judge.
     In the divorce proceeding between appellant and appellee,
the chancellor held that no legal relationship existed between
appellant, Marty Ryan Leach, and the daughter of appellee, Amy
Varner Leach.  The effect of his ruling illegitimized the firstborn
child of the marriage.  The chancellor ruled that because of this
finding, appellant could not be considered for custody of the child
and granted custody to the natural mother, appellee.  This appeal
resulted.
     The record reflects that the parties were married on November
15, 1990, well into appellee's pregnancy with the child at issue. 
Neither appellant nor appellee assert that appellant is the natural
father; they knew she was pregnant by another man, but they
married, and the child was born of the marriage in January 1991. 
Appellant had his name placed on her birth certificate, and he
continually represented himself as her father.  The parties agreed
not to raise the issue of paternity with regard to this child. 
However, appellant never legally adopted this child.  Appellee
gave birth to another child, a son, in September 1993, who was
appellant's biological child.  In September 1995, divorce
proceedings were filed, and in a subsequent temporary relief
hearing the appellant was granted temporary custody of both
children and possession of the marital home.  Appellee was granted
visitation privileges at that time.
     A final hearing was held on December 11, 1995, wherein
testimony was taken from both parties.  Both parties sought custody
of the children.  Appellant testified that he claimed the girl as
his own.  At the time of the hearing, she was four years old. 
Appellant stated that he had never alleged that anyone else was the
father of this child.  He knew of no paternity tests ever being
conducted.  Appellant's name was put on the birth certificate, and
the child bears appellant's surname.  Appellee testified that she
and appellant had reached an agreement that appellant would be the
father of the child and that they would never mention in the future
that she was not his biological child.
     At the conclusion of taking testimony, the chancellor brought
up the issue of jurisdiction over custody of the elder child. 
Counsel for the parties responded that they had not intended to
make paternity an issue in this case, but the chancellor said:
          My problem, my question is, whether or not  this
     Court has the jurisdiction, [it] would be the subject
     matter jurisdiction, which I must raise, whether it's
     raised or not by the pleadings, to grant custody to
     Mr. Leach when the record is clear, it's undisputed, that
     he is not the father of this child.

After taking under advisement all issues except the granting of
divorce, the chancellor issued a letter opinion which merged into
the divorce decree.  In it he determined that no legal relationship
existed between the firstborn child and appellant, based upon the
fact that "both parties agree he is not the natural father," and
that although he had treated her as his own since birth, he had not
adopted her and established a legal relationship.  He stressed that
both parties were fit parents; however, the best interests of the
children dictated that they should not be separated, necessitating
a conclusion that appellee be awarded custody.  Appellant father
was granted visitation of both children and ordered to pay support
only for his biological child.
     The chancellor reasoned that Arkansas statutory law requires
that custody of an illegitimate child of an unmarried woman must
be in such woman unless a court of competent jurisdiction places
custody in another.  Ark. Code Ann.  9-10-113 (Repl. 1993).  Upon
this statute, the chancellor felt compelled to give appellee
custody of the children.  However, as the emphasized terms of the
statute make clear, this mandatory grant of custody is not required
as to a married woman.   We need not reach the issue of correct or
incorrect application of that statute. 
     It is apparent to this court that the chancellor erroneously
determined that the elder child was illegitimate, although neither
party raised the issue.  At issue is a child born within the bonds
of marriage, and this state has always held sacred the legitimacy
of children:
     Marriage is still considered an honorable institution;
     children born during marriage should be deemed
     legitimate, and legal efforts to declare such children
     illegitimate are not and should not be made easy.  Belief
     in that principle is so great that we   have created a
     legal presumption to protect it.  This presumption, that
     a child born during marriage is the legitimate child of
     the parties to that marriage, is one of the strongest
     presumptions recognized by the law.

Thomas v. Pacheco, 293 Ark. 564, 567-568, 740 S.W.2d 123, 125
(1987).
     Act 657 of 1989, codified at Ark. Code Ann.  16-43-901 (Repl.
1993), abolished Lord Mansfield's Rule.  The commonlaw rule,
articulated in 1777, states the declarations of husband and wife
cannot be admitted to bastardize a child born after marriage.  The
statute now permits a mother, her husband, and a putative father
to testify about the paternity of a child.  However, the strong
presumption of the legitimacy of a child born of marriage continues
to be one of the most powerful presumptions in Arkansas law.  Only
upon clear and convincing evidence may the court find this
presumption overcome.  This statute also provides:
     The court shall consider foremost the interest of the
     child in making any determination hereunder and consider
     only testimony and evidence which will serve the best
     interest of the child in its findings pursuant to this
     section.
Id. at subsection (g)(2).  Illegitimizing the elder child was not
in her best interest, nor was it a goal of either of her parents.
     We recognize that appellate review is performed de novo,
and we reverse only if the decision is clearly contrary to the
preponderance of the evidence.  Johns v. Johns, 53 Ark. App. 90,
918 S.W.2d 728 (1996).  Furthermore, special deference is shown
to rulings regarding child custody because of the special care
required and the unique opportunity to evaluate evidence and judge
credibility of witnesses.  Id.  Upon the facts of this case we must
reverse and remand so that the chancellor may reevaluate the
evidence and witnesses with regard to the custody, visitation, and
support  issues.  Custody and visitation should be determined
solely on consideration of the best interest of the children.
     Reversed and remanded.
     Stroud and Crabtree, JJ., agree.