Jessica Leann Harmon v. Frank Douglas Wells
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ARKANSAS COURT OF APPEALS
LARRY D. VAUGHT, JUDGE
DIVISION IV
CA06-913
April 11, 2007
JESSICA LEANN HARMON
APPELLANT
APPEAL FROM THE FRANKLIN
COUNTY CIRCUIT COURT
[DR-2004-11]
V.
HON. DENNIS C. SUTTERFIELD,
CIRCUIT JUDGE
FRANK DOUGLAS WELLS
APPELLEES
AFFIRMED
On appeal, appellant Jessica Harmon argues that the trial court erred by entering an
order of custody in favor of appellee Frank Wells without requiring him to demonstrate that
a material change in circumstances had occurred. Alternatively, Harmon argues that the trial
court’s findings relating to Wells’s fitness to parent the child are clearly erroneous, arbitrary
and groundless, and against the preponderance of the evidence. We affirm.
On January 21, 2004, Wells initiated an action to establish paternity and to gain
custody of his minor son, who was born out of wedlock on December 20, 2002. On April
5, 2005, an order bearing the title “Temporary Order” was entered establishing Wells as the
child’s biological father and awarding Wells visitation. On February 7, 2006, a final custody
hearing was conducted. In its final order, the trial court reasoned that “if there has been an
order of paternity [that] also made a final adjudication as to the primary care and custody then
the father is required to prove a material change in circumstances ... if there has been no such
order, then the father is not required to prove a material change in circumstances.” The court
noted that because it had not previously resolved the custody issue, Wells was only required
to prove that he was a fit parent and that it was in the child’s interest to be placed in Wells’s
custody.
At the outset, the court found that Wells was a fit parent despite Harmon’s allegations
otherwise. The court’s finding of fitness specifically addressed Harmon’s most serious
allegation—that she had been raped by Wells on April 11, 2004. The court found Harmon’s
“testimony in this regard not to be credible.” Instead, the trial court believed Wells’s
explanation—that the intercourse was consensual—noting that Harmon had made contact
with Wells several times after the alleged rape and that her charge of rape came after he filed
his petition for custody. Further, the trial court credited Wells’s testimony that the parties had
previously engaged in deviate sexual activity where Harmon had requested that Wells tie her
up during intercourse. The court noted that Harmon had a motive to fabricate and exaggerate
her claims against Wells in order to “damage or destroy his claim for custody and possibly
result in his [long-term] incarceration.” Wells had eventually pleaded guilty to false
imprisonment, but he testified that he never abused Harmon in any way during their time
together. The judge noted that there “was no other evidence indicating that [Wells was]
violent or abusive.”
As to Harmon, the court found that she had subjected the child to “severe neglect” and
“unacceptable parental behavior” based—at least in part—on an incident that occurred when
the child was one year old and in his mother’s care. Wells testified that he came home from
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work and found empty whiskey bottles and condom wrappers in a room, with his child
sleeping under a bed. Wells testified that it was after this event that he petitioned for custody.
Finally, the court found that Harmon had engaged in several sexual relationships with other
men during the time she lived with Wells and that one of her paramours had a criminal
history.
According to the custody order, the evidence also established that Wells’s employment
history was far more stable than Harmon’s. The trial court found that she had “held at least
fourteen different jobs in 2003,” yet Wells had held the same job “since the minor’s birth.”
The court concluded that Wells had a “greater individual discipline toward earning an income
to support and care for the minor child.” The court also acknowledged Wells’s “extensive
involvement in the minor child’s life since birth in both providing monetary and nonmonetary parental support.” Finally, the court expressed concern that at one point, Harmon
attempted to get Wells to pay her money in exchange for time with the child. The court’s
order admonished Harmon’s by stating that a “child’s access to see the other parent should not
be considered something to barter or bargain with like some form of perverse currency.”
The court ultimately concluded that the “totality of the evidence establishes that
[Wells] is more stable than [Harmon] financially, emotionally[,] and in the moral sense.” The
court found that Wells “and his new wife are sincerely concerned with the child’s well being
and [Wells] has demonstrated by his past conduct that he is capable of providing for the minor
child’s ... needs in a stable environment.” Then, the court ordered that the minor child be
placed in Wells’s physical and legal custody. It is from this decision that Harmon appeals.
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We first consider whether the trial court erred by not requiring that Wells prove a
material change of circumstances prior to the entry of the custody order in his favor. We
begin our analysis with an examination of the two controlling cases: Sheppard v. Speir, 85 Ark.
App. 481, 157 S.W.3d 583 (2004), and Norwood v. Robinson, 315 Ark 255, 866 S.W.2d 398
(1993). These cases attempted to clarify Arkansas Code Annotated § 9-10-113 (Supp. 2003),
which provides that an illegitimate child shall be in the custody of its mother unless a court
of competent jurisdiction enters an order placing the child in the custody of another party.
Freshour v. West, 334 Ark. 100, 971 S.W.2d 263 (1998). However, according to the statute,
a biological father may petition the court for custody if he has established paternity in a court
of competent jurisdiction. Id. Following a three-part finding—that the father is fit, that he
assumed financial and supervisory support for the child, and that it is in the child’s best
interest—custody will be awarded to the biological father. Ark. Code Ann. § 9-10-113.
In Norwood, our supreme court added to these three requirements by requiring that a
father attempting to gain custody of a previously identified “illegitimate child” also show a
“material change of circumstances” warranting a change of custody. The court reasoned that
an order establishing paternity and visitation “gave the statutory determination the effect of
a judicial determination. Implicit in the order of paternity establishing visitation was a
determination that custody should continue to rest in the mother.” Norwood, 315 Ark. at 259,
866 S.W.2d at 401. In other words, an award of visitation to the father was tantamount to a
finding that he was not entitled to custody and that the custody of the child should be with
the mother—by order, not statute. Therefore, the father was prohibited from gaining custody
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of the child absent a showing of changed circumstances.
Our court further developed the law relating to the illegitimate-child statute in the
Speir case. We distinguished Norwood by noting that its resolution turned on the fact that the
paternity order “granted appellant reasonable visitation and set the amount of child support.
Two years following the entry of the paternity order, the appellant in Norwood sought to
change custody.” Speir, 85 Ark. App. at 490, 157 S.W.3d at 589. However, in Speir the
appellant petitioned for custody prior to the entry of the paternity order (these petitions were
eventually consolidated), and we noted that the visitation order entered was temporary in
nature, as it specifically reserved the determination of custody for a future date. We then
concluded that “because the issue of custody was not resolved in the paternity order, Speir
was not required to show a material change of circumstances.” Id.
Here, Harmon concedes that the order was titled “Temporary Order” but points out
that unlike the order analyzed in Speir, this order did not set a final hearing date and ended
with the words, “this Court retains jurisdiction of this case for such further orders as may be
appropriate for the enforcement of this Temporary Order and for all matters relating to
custody, visitation and support of the minor child.” She argues that “these are not the words
of a temporary order.” She also notes that “ten months later, a custody hearing [was] held.”
She also points out that a biological father may petition the circuit court for custody
only when “he has established paternity in a competent jurisdiction.” Ark. Code Ann. § 9-10113(b). According to her position, because Wells’s petitions for custody and paternity were
filed at the same time, the order awarding Wells visitation (which was entered with the order
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establishing paternity) “was not a temporary order but a permanent order since the petition
for custody cannot be filed or considered until paternity is established.”
Contrary to Harmon’s assertion otherwise, the law does not prohibit a trial court from
entering a temporary order of visitation in favor of the father at the same time that he is found
to be the father and reserving the issue of custody for a later time. Speir, 85 Ark. App. at 490,
157 S.W.3d at 589. Therefore, the resolution of the issue before us rests entirely on whether
the visitation order was permanent or temporary. If it was permanent, the trial court should
have followed Norwood and required a change of circumstances. If it was temporary, the trial
court should have followed Speir and should have concluded that there was no need for the
father to prove changed circumstances. Although the order did not set a future date for a
custody hearing, we conclude that the order was temporary in nature because it did not
resolve the issue of custody. As such, the trial court was correct in not requiring a showing
of changed circumstances.
We next consider Harmon’s alternative argument that the trial court’s findings relating
to Wells’s fitness to parent the child were clearly erroneous. If the court’s best-interest finding
was supported by a preponderance of the evidence, it is not clearly erroneous. See Cole v.
Cole, 82 Ark. App. 47, 110 S.W.3d 310 (2003). Although we review this determination de
novo, we will not reverse unless we are left with a definite and firm conviction that a mistake
has been committed. Id. Further, because the preponderance of the evidence turns largely on
the credibility of the witnesses, we defer to the superior position of the trial court to evaluate
the witnesses, their testimony, and the child’s best interest. Word v. Remick, 75 Ark. App. 390,
58 S.W.3d 422 (2001).
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Although we are troubled by the fact that during the pendency of the custody dispute
Wells was accused of raping—and pleaded guilty to falsely imprisoning—Harmon, the trial
court’s factual findings made it clear that it found Harmon to be incredible. Based on our
review standard and the specific findings of the trial court relating to Harmon’s motive,
untimeliness in reporting the rape, and contact with Wells following the alleged assault, we
defer to the trial court on the resolution of this serious charge. Further, the bulk of the
remaining evidence strongly supports the trial court’s decision to place custody of the parties’
child with Wells. Therefore, we affirm on this point as well.
Affirmed.
G LADWIN and B IRD, JJ., agree.
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