Darlene Byrd v. David Byrd

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

DARLENE BYRD

APPELLANT

V.

DAVID BYRD

APPELLEE

CA05-361

NOVEMBER16, 2005

APPEAL FROM THE BOONE COUNTY CIRCUIT COURT

[NO. DR 2002-297-4]

HON. GORDON WEBB,

CIRCUIT JUDGE

AFFIRMED IN PART; REVERSED IN PART AND REMANDED

Josephine Linker Hart, Judge

Darlene Byrd appeals from an order of the Boone County Circuit Court granting joint custody for the parties' two minor children, pending the trial court's "long-term decision" regarding custody. On appeal, Darlene argues that the trial court's award of joint custody was clearly erroneous and that there is no justification for giving appellee David Byrd a credit against the Family Support Chart amount of child support for providing medical insurance. We reverse the award of joint custody and affirm the trial court's calculation of child support.

Darlene and David were married on May 12, 2001. On July 31, 2001, the first child, Victoria (Torie), was born. On June 3, 2002, the parties separated, and two days later, Darlene filed for divorce. The parties reconciled, and Darlene's complaint was dismissed by agreed order filed on December 18, 2002. In December 2002, Darlene again filed for divorce and that complaint was also dismissed by agreed order filed on February 11, 2003. On May 20, 2003, Darlene again filed for divorce; however, this time she finally pursued

the case to a decree that was filed for record on March 29, 2004. The trial judge, however, reserved ruling on the issue of the custody of the parties' two minor children.

Testimony relating to custody was first taken at a December 15, 2003, temporary hearing. At the time, only the oldest child, Torie, had been born. David testified that from the very beginning, he had been very involved in parenting his child. He asserted that he "changed her first seven, eight, ten diapers in the hospital," supplemented Darlene's breast feeding by giving the child formula, and administered the child's medication. He also claimed that he spent every minute that he was not working or attending college classes with his child, rocked her to sleep at night, and got up in the middle of the night when the baby cried.

David stated, however, that after Darlene filed for divorce in May of 2002, she had him evicted from the marital home on July 23, 2002. The three weeks prior to that, Darlene had denied him contact with Torie even though he begged Darlene to let him see his daughter. Pursuant to a July 25, 2002, temporary hearing, he was awarded visitation and exercised every visit he was awarded except for one when he had agreed to switch days with Darlene but "chickened out" because it was not approved by the court. Later the parties reconciled. After the case had been dismissed, David picked up Torie from Darlene and took her to his father's residence in eastern Arkansas. According to David, after he left with the child, Darlene inquired how long he intended to keep Torie, and he told her that "three weeks sounds like a good term." However, he only kept Torie until January 4, 2003, because Darlene "filed a protection order." The ex parte order was subsequently dismissed after a hearing on January 10, 2003. Nonetheless, Darlene did not allow him visitation with Torie until February 8, 2003. Darlene's second divorce petition was dismissed a few days later. The parties continued to live apart, he in Springdale and Darlene in Harrison, but they spent weekends together and agreed that Torie would spend half her time with each of them.

On April 19, 2003, however, David put a deposit on a rent house where he proposed that the couple would live together. When he told Darlene about it, she "got very belligerent" because he spent money on a house. According to David, at the time of their argument, he was rocking Torie, because she was "fussy." After he and Darlene exchanged harsh words, he got up to leave, and as he walked by Darlene's chair, she reached up and grabbed Torie by the waist and tried to "drag" the child away from him. David admitted that he "resisted, naturally," and he "reached and grabbed Darlene around the neck trying to hold her to me to keep her from pulling Torie." He claimed that when he realized that he was not going to win the tug-of-war, he released Darlene, and she fell. Darlene told her son to call the police, claiming that David hit her. David stayed until the police arrived, and asked them to check Torie. When the police arrived, David was arrested on a warrant that Darlene had sworn out on December 7, 2002, when she complained about "harassing phone calls." David asserted that since that incident, he had made numerous requests of Darlene to allow him to see Torie, but she refused until they got "something on paper." According to David, in the ensuing eight months, Darlene kept him from seeing Torie except for two days in October and two days in November. He claimed that Darlene conditioned visitation on his signing an agreement giving her custody and accepting visitation for one weekend every other week.

Regarding the fact that Darlene was pregnant at the time of the hearing, David admitted that they were having sexual relations, but requested that the court order DNA testing. On cross-examination, David admitted that he wrote several letters that disparaged Darlene, including letters that he addressed to Torie, who was less than two years old at the time they were written.

Darlene testified that she was the primary caretaker of Torie. She also stated that Torie has seen "a lot of yelling and screaming" between her and David. Regarding the incident in April, she claimed that she was holding Torie and "he took her from me, I took her back. He took her back again, so I went ahead and took her back, and then at that time he pushed us both down." According to Darlene, Torie "heard all of this yelling and screaming and she was very terrified." Darlene stated that since the latest separation, David has not provided her with any support and that she had to rely on public assistance. She denied saying any "negative things" about David. She admitted that she allowed David only two visits since April, but claimed that he said that "if he couldn't keep her half the time, then he didn't want to see her," and that she "got tired of arguing with him." Regarding the quantity of visitation that she thought would be appropriate, Darlene opined that "every other weekend is quite a bit for a two year old girl that has not been away from home quite a bit." She conceded that while she was attempting to reconcile with David, she allowed him to have more time with Torie, but because she decided that they would not get back together, "stability" was more important for the child than extended visitation with David.

At what was termed the "final hearing," held on March 8, 2004, the trial court combined the testimony taken at that proceeding with the evidence taken at the December 15, 2003, temporary hearing. At the final hearing, Darlene testified that a second child, Andrea, was born of the marriage. She stated that she was currently breast feeding the child and supplementing that with formula. Darlene admitted that she did not breast feed her first three children, but intended to breast feed Andrea for about a year, and therefore, the baby could not be gone overnight. She opined that it would interfere with "the bonding process."

In her testimony, Darlene acknowledged that Torie stayed with David for six weeks, beginning eleven days after Andrea was born. She conceded that the visitation went "prettygood" except for "the complaining of me breast-feeding." Darlene stated that she still had not received any child support from David. She also claimed that when David would bring Torie to visit, the child would just "lay on the floor and say I'm not going." On cross-examination, however, she conceded that Torie usually did not object to leaving with her father. She also conceded that David was a "good father." Darlene introduced into evidence a printout from David's website that had pictures of the parties' two children. Over it was an inscription that expressed his doubt as to the paternity of Andrea.1 However, she steadfastly insisted that David not have extensive visitation because the two little girls "need a motherly instinct."

Darlene called Zebbie Taylor, a friend of twenty years, who testified that Darlene was a good mother and the primary caretaker of Torie and Andrea. She also called Deborah Jonak, a friend of eight years, who testified that Darlene's primary entertainment was playing in the park with her children and that Darlene was "extremely strapped financially" because she was not receiving financial assistance from David.

David called his mother, Hazel Kitchens, who testified that she saw Torie frequently before the parties separated, but found Darlene much less willing to let her see her grandchildren since the last separation. Kitchens stated that she heard Darlene state that David was a "real good father." She described David's home as a "nice, clean, well-cared for" two bedroom apartment in a "safe neighborhood." Kitchens also stated that in her observations, Darlene was "not responsive" to Torie, but David was. She also stated that she did not observe Darlene breast-feed Andrea, although she did see her give the child twobottles. Kitchens also stated that David was very involved with his grandchildren2. Additionally, while she had no concerns about David's parenting ability, she had safety concerns about Darlene, noting that she observed Darlene give Torie a pork chop, bone and all, when the child was only eight months old. David also called his daughter, Laura Byrd, who testified that David helped her by babysitting her children, sometimes three or four times a week. She stated that he was totally involved with their care.

David denied that he ever refused to spend time with Torie. He asserted that he wanted full custody of both children, that he was fully capable of caring for them, and if he was given custody, he would encourage both children to visit their mother. Regarding his work situation, David stated that his hours were very flexible and that he could access his office computer from home, needing only to be physically present at work for a few hours a day. David asserted that he could put his child's best interest "at heart," but conceded that he was "not capable of getting along with Darlene."

The hearing concluded with the guardian ad litem's report. He concluded that both parents could adequately provide for the children. However, he believed that "there is a bond between the child and the mother." As far as David was concerned, he recommended that David receive extended visitation every other week from Thursday until Sunday and extended visitation whenever Torie was not in school. He also recommended accommodating Darlene's breast-feeding. He also expressed "concern" over David's posting the pictures of his children on the internet, which, along with the other letters that David wrote to Torie, raised doubts about David's "parenting ability overall." He opined that Darlene's parenting ability was "better."

The trial judge took the matter under advisement, and on September 16, 2004, finally issued a letter opinion. In it, he awarded "joint custody" for alternating six month periods, with David's period commencing on November 15, 2004, and ending on May 15, 2005. The court stated that the "situation" was subject to review on June 12, 2006. The court stated that alternating custody in this fashion would "remedy" the "inequity" of the children having been in the custody of Darlene for a "majority of the time." However, once Torie started school, primary custody would be transferred to Darlene.

As a threshold issue, we must first address David's contention that the order appealed from is not final, and therefore not appealable. David argues that to be appealable, the order must (1) dismiss the parties from the court, (2) discharge them from the action, or (3) conclude their rights to the subject matter in controversy, and here, none of those conditions have been met. He points to the fact that the parties were directed to return to court for a review hearing on June 12, 2006, at which time a final custody determination will be made by the trial court. We disagree.

Arkansas Rule of Appellate Procedure-Civil 2(d) states in pertinent part: "All final orders awarding custody are appealable final orders." In custody matters the supreme court has liberally interpreted Rule 2(d) to permit "an appeal from any order that is final as to the issue of custody, regardless of whether the order resolves all other issues." Lewellyn v. Lewellyn, 351 Ark. 346, 93 S.W.3d 681 (2002)(citing Ford v. Ford, 347 Ark. 485, 65 S.W.3d 432 (2002)). We are mindful that the order expressly scheduled a review hearing; however, we hold it is of no moment. Under Arkansas Code Annotated §9-12-314(b) (Repl. 1993) the trial court has continuing jurisdiction to modify child support and custody orders, however,its power to modify such orders arises only when the moving party has demonstrated a change in circumstances requiring modification. Slaton v. Slaton,

330 Ark. 287, 956 S.W.2d 150 (1997). We therefore address Darlene's arguments on appeal.

For her first point, she argues that the trial court's award of joint custody was clearly erroneous because custody should not be divided merely because both parents were found to be fit, it would provide "parity or equity" for either parent, and because the parties manifestly could not exhibit the degree of cooperation necessary to justify such an arrangement. We agree.

In child-custody cases, the primary consideration is the welfare and best interests of the child involved; all other considerations are secondary. Walker v. Torres, 83 Ark. App. 135, 118 S.W.3d 148 (2003). We review the case de novo, but we will not reverse a trial judge's findings in this regard unless they are clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been made. Id. Because the question of whether the trial 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 interests. Id.

We are mindful that Arkansas Code Annotated § 9-13-101(b)(1)(A)(ii) was amended in 2003 to specifically permit a court to consider the award of joint custody. However, joint custody or equally divided custody of minor children is not favored in Arkansas. Thompson v. Thompson, 63 Ark. App. 89, 974 S.W.2d 494 (1998). Moreover, the mutual ability of the parties to cooperate in reaching shared decisions in matters affecting the child's welfare is a crucial factor bearing on the propriety of joint custody. See Hansen v. Hansen, 11 Ark. App. 104, 666 S.W.2d 726 (1984). It is this latter element, the ability of David and Darleneto cooperate in reaching shared decisions affecting the welfare of Torie and Andrea, that is glaringly absent in this case. For example, the parties could not agree on things as fundamental as how and what to feed Andrea, the importance of maintaining contact with the other parent, and even whether Torie should not be used in a tug-of -war, physically as well as metaphorically.

Furthermore, it is settled law that custody awards are not made or changed to punish or reward or gratify the desires of either parent. Calhoun v. Calhoun, 84 Ark. App. 158, 138 S.W.3d 689 (2003). While it is essential that a child receive the benefit of having both parents play a meaningful role in his or her life, we believe that, in this case, the trial court's award of divided custody on six-month increments for a year and a half in the lives of an infant and a toddler was just an attempt by the trial court to give David equal time. Although we acknowledge that Darlene's efforts to deny David visitation with the parties' minor children were reprehensible, her conduct does not form the basis to support the trial court's joint-custody award. As a final note, we are mindful that Arkansas Code Annotated § 9-13-101 (b)(1)(A)(I) states: "When in the best interests of a child, custody shall be awarded in such a way so as to assure the frequent and continuing contact of the child with both parents." However, we do not find that David's conduct in this area, when he was given the opportunity, was appreciably better than Darlene's, and we do not believe that the trial court's order effectuates the stated goal of the statute. It is clear that at the time custody was awarded, joint custody was not in the best interest of the children. Accordingly, we reverse the trial court's award of joint custody and remand this case for further proceedings consistent with this opinion.

For her second main point, Darlene argues that there is no justification for giving David a credit against his child support arrearage in the amount that he had paid forDarlene's medical insurance. She asserts that child support is solely for the benefit of the child, and not for any other person, and therefore, the trial court's decision was not authorized by the factors listed in Administrative Order Number 10. Furthermore, she contends that Child Support Enforcement never had an opportunity to present their arguments on this issue because they were not notified that David had objected to the Temporary Order, despite the fact that they had been made a party in this case.

Regarding this latter point, David asserts that Darlene lacks standing to assert this claim because she assigned her rights to child support to the Office of Child Support Enforcement, and the State has become the real party in interest. We reject David's argument on this issue. This case falls within the purview of Rule 17 of the Arkansas Rules of Civil Procedure. See Harvill v. Bevans, 52 Ark. App. 57, 914 S.W.2d 784 (1996). Rule 17 mandates that every action shall be prosecuted in the name of the real party in interest. Subsection (a) of the rule, however, further provides that:

No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification or commencement of the action by, or joinder of, the real party in interest; and such ratification, joinder or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.

Dismissal of an action requires that the defendant raise the issue of real party in interest, or it may be waived. Gladden v. Bucy, 299 Ark. 523, 772 S.W.2d 612 (1989). Because David did not raise the issue to the trial court in a motion to dismiss, we will proceed to the merits of Darlene's argument.

As a rule, when the amount of child support is at issue, we will not reverse the trial judge absent an abuse of discretion. Scroggins v. Scroggins, 302 Ark. 362, 790 S.W.2d 157(1990). However, a trial judge's conclusion of law is given no deference on appeal. City of Lowell v. M & N Mobile Home Park, Inc., 323 Ark. 332, 916 S.W.2d 95 (1996).

We find no error in the trial court's calculation of support. The order recites that David was obligated to pay for Darlene's health insurance by previous orders of the court. We hold that the trial court's allowance of a credit for the court-ordered health insurance constitutes a permissible departure from the chart amount of child support that is well within the sound discretion of the trial court.

Affirmed in part; reversed in part and remanded.

Crabtree, J., agrees.

Glover, J., concurs.

David M. Glover, Judge, concurring. I concur. Custody decisions cannot be made in a vacuum. Here, circumstances may well have changed, for the better or for the worse, since the final custody hearing that was held in this case in March 2004. I write separately to demonstrate my agreement with the general sentiment expressed by Chief Judge John Stroud's concurrence in Hobbs v. Hobbs, 75 Ark. App. 186, 55 S.W.3d 331 (2001). That is, it is my opinion that upon remand the trial court will be free to re-examine the custody issue in light of the current situation between the parties. Depending upon those circumstances upon rehearing, the trial court may award custody to the mother, to the father, or again to both if the trial court determines that the parties are now communicating and can now work in concert to raise the children. The polestar, of course, remains the best interest of the children.

1 "On January the 11th of 2004, I got to meet what Darlene claims is my daughter. Although Darlene objects to me having a DNA test done, she still tells me this is my daughter. She was took on December 30th 2003 by C-Section, I was informed I had a child and that I would be expected to pay child support but was not allowed to see it till January 11th. Such is being a father for a child in Arkansas."

2 From a daughter born of a previous marriage.