Cite as 2011 Ark. App. 201
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CA10-827
Opinion Delivered
CHRISTOPHER GEORGE STOUT
APPELLANT
MARCH 9, 2011
V.
APPEAL FROM THE SEBASTIAN
COUNTY CIRCUIT COURT, FORT
SMITH DISTRICT
[NO. DR-09-923]
PHETH STOUT
HONORABLE JIM D. SPEARS,
JUDGE
APPELLEE
AFFIRMED IN PART; REVERSED
AND REMANDED IN PART
RAYMOND R. ABRAMSON, Judge
Christopher and Pheth Stout were married on January 10, 2004. The parties have one
child, D.S., born October 7, 2003, and Pheth has a child from a previous relationship, K.P.
On July 16, 2009, Christopher filed for divorce, seeking joint custody of D.S. Pheth filed an
answer and counterclaim for divorce, seeking custody of D.S., child support, and spousal
support. Both parties subsequently amended their pleadings twice.
Pheth’s second amended counterclaim, filed on February 9, 2010, requested, in part,
custody of D.S., subject to reasonable visitation by Christopher and that Christopher pay the
transportation costs associated with visitation;1 spousal support; equitable division of the
1
During the pendency of these proceedings, Christopher was temporarily in California for
work and was awaiting transfer back to Arkansas. Pheth resides in Ft. Smith, Arkansas.
Cite as 2011 Ark. App. 201
property; the return of some separate personal property; and permission to move to Aland,
Finland.
On February 11, 2010, Christopher filed his second amended and substituted
complaint for divorce, seeking custody of D.S. This complaint alleged that he should be
awarded custody of D.S. because Pheth (1) had refused him any meaningful visitation with
D.S. since the separation; (2) had refused to allow visitation via telephone; (3) had refused to
communicate with him regarding the child and refused to answer his telephone calls; (4) had
refused to keep him apprised of her current contact information; (5) did not have the
resources to provide for the primary care of the minor child; and (6) had requested authority
to move the child to Finland, which would prevent him from exercising visitation.
A hearing was held on March 11, 2010. After hearing the testimony of Christopher
and Pheth, as well as Christopher’s mother, the trial court awarded Christopher the divorce
but awarded Pheth custody of D.S.
Christopher was ordered to assume the cost of
transportation for purposes of visitation. Christopher was also ordered to pay child support
retroactive to the date the initial complaint was filed. The trial court denied Pheth’s request
for alimony. The trial court then awarded each party the personal property currently in their
possession. Christopher was awarded possession of a Mercedes titled in his name and the
responsibility to pay the debt thereon. Pheth was found to be responsible for a debt owed on
the vehicle she had purchased after the separation, her student loan debt, a debt owed to
World Acceptance Corp., and a debt owed to her mother. Christopher was ordered to pay
-2-
Cite as 2011 Ark. App. 201
the remaining California debt as well as the personal debt he had listed in an exhibit.
Christopher was further ordered to pay Pheth $500 for her one-half portion of marital
property he sold after their separation. Finally, the trial court awarded Pheth attorney’s fees
in the amount of $2,000. Christopher timely appealed the decree of divorce.
For Christopher’s first point on appeal, he argues that the trial court erred in awarding
custody of D.S. to Pheth because doing so was not in the best interest of the child. He points
to several facts to support his assertion: (1) that Pheth admittedly allowed D.S. unsupervised
visits with an ex-boyfriend who had been physically violent towards her in the past; (2) that
Pheth failed to provide him with her telephone number so that he could maintain contact
with D.S.; (3) that she moved without informing him of her new address; (4) that Pheth
believed six-year-old D.S. should decide if he wanted to visit his father; (5) that Pheth lived
in a two-bedroom home with her two children and her mother; (6) that Pheth had previously
requested permission, and would like in the future, to move to Finland; (7) that Pheth had
not had stable employment until shortly before the hearing; (8) that there was evidence that
Pheth and her mother had tempers and had been involved in physical altercations; (9) that
there was evidence that Pheth had asked her ex-boyfriend to kill him; (10) that Pheth had
slapped him during an altercation; (11) that Pheth had had three children by three different
men, one of which she gave up for adoption; (12) that Pheth intended for her mother to keep
the children even though her mother spoke limited English and would not be able to
-3-
Cite as 2011 Ark. App. 201
effectively call for help in cases of emergency; and (13) that Pheth had failed to facilitate any
in-person visitation since the separation.
Additionally, Christopher asserts that he is in a better position to have custody of D.S.
because (1) he lives alone in a three-bedroom house; (2) he has had steady employment,
which permits him to work from home at times; (3) he has family and friends who would be
willing to care for D.S. in the event he had to go into the office; (4) he had taken an active
role in D.S.’s life up until the date of separation; (5) he would be willing to work with Pheth
to have additional contact with D.S.; and (6) Pheth believes he should bear the greater
economic burden in the divorce.
Pheth, on the other hand, contends that the trial court’s award was correct. She
questions Christopher’s concern for the well-being of his child, as the evidence showed that
he failed to provide any support for the child since he filed for divorce in July 2009. She also
asserts that Christopher has a temper. She further notes that she is with the children all the
time, and that she works nights so that she can be at home when the children are at home.
When she is working, the children are cared for by her mother. Additionally, Pheth points
to D.S.’s attachment to his half-sister and his stellar performance in school as supporting the
court’s determination that she should retain custody of the child. Finally, Pheth denies many
of Christopher’s allegations, including the allegations of physical altercations with her mother
and gambling.
-4-
Cite as 2011 Ark. App. 201
We review child-custody cases de novo, but we will not reverse a circuit court’s findings
unless they are clearly erroneous. Ross v. Ross, 2010 Ark. App. 497. A finding is clearly
erroneous when the reviewing court, on the entire evidence, is left with the definite and firm
conviction that a mistake has been committed. Ford v. Ford, 347 Ark. 485, 65 S.W.3d 432
(2002). 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). There are no cases in
which the superior position, ability, and opportunity of the trial judge to observe the parties
carry as great a weight as those involving minor children. Bailey v. Bailey, 97 Ark. App. 96,
244 S.W.3d 712 (2006). The primary consideration in child-custody cases is the welfare and
best interests of the child involved; all other considerations are secondary. Hicks v. Cook, 103
Ark. App. 207, 288 S.W.3d 244 (2008).
We note that the trial court did not make specific findings of fact in this case and that
Christopher did not specifically request such findings pursuant to Rule 52 of the Arkansas
Rules of Civil Procedure. While it is true that our review is de novo, the lack of specific
findings, particularly in regard to the disputed points and the credibility of witnesses, makes
our review more difficult. It should be noted that absent specific findings, we presume that
the trial court acted properly and made the findings necessary to support its judgment. Tillery
-5-
Cite as 2011 Ark. App. 201
v. Evans, 67 Ark. App. 43, 991 S.W.2d 644 (1999); Jocon, Inc. v. Hoover, 61 Ark. App. 10, 964
S .W.2d 213 (1998).
Here, the trial court heard all the evidence (including the evidence recited by
Christopher for reversal), assessed the credibility of the witnesses, and determined that
allowing Pheth to retain custody of the child was in D.S.’s best interest. Even if we might
have decided this case differently, given our presumption that the trial court acted
appropriately absent any specific findings and based on the record before us, the trial court’s
decision awarding custody to Pheth is not clearly erroneous.
Christopher next argues that the trial court erred when it established an unreasonable
visitation schedule given his current residence in California. Again, our review is de novo and
we will not reverse the trial court’s findings unless they are clearly erroneous or clearly against
the preponderance of the evidence. Brown v. Brown, 76 Ark. App. 494, 68 S.W.3d 316
(2002). The main consideration in making judicial determinations concerning visitation is the
best interest of the child. Id. Important factors to be considered in determining reasonable
visitation are the wishes of the child, the capacity of the party desiring visitation to supervise
and care for the child, problems of transportation and prior conduct in abusing visitation, the
work schedule or stability of the parties, and the relationship with siblings and other relatives.
Marler v. Binkley, 29 Ark. App. 73, 776 S.W.2d 839 (1989). The fixing of visitation rights is
a matter that lies within the sound discretion of the trial court. Davis v. Davis, 248 Ark. 195,
451 S.W.2d 214 (1970).
-6-
Cite as 2011 Ark. App. 201
Here, the trial court entered a standard visitation order even though Christopher
currently resides in California. Doing so was an abuse of discretion. Although it appears the
visitation schedule was set under the assumption that Christopher’s stay in California was only
temporary, there was no evidence presented regarding if or when he would actually obtain
a transfer. Given Christopher’s current residence, there is no conceivable way the visitation
order can be followed as set and denies Christopher and D.S. any meaningful opportunity for
visitation to maintain their relationship, such as by telephone or extended summer visitation.
There was no evidence presented that visitation would, in any way, be harmful to D.S. To
essentially deny D.S. reasonable visitation with his father when there is no reason to do so
would be contrary to the child’s best interest. Thus, this matter must be remanded to the trial
court for entry of a revised order of visitation.
Christopher also complains that the trial court erred in charging him with the cost and
responsibility for transporting D.S. during visitation. Again, absent specific findings, we must
presume that the trial court acted properly and made the findings necessary to support its
judgment. In light of the existing economic differences between the parties, there is no clear
error in the trial court’s determination that, on the whole, Christopher should be responsible
for the transportation costs of visitation.
Christopher’s third argument is that the trial court erred when it divided the parties’
assets and split the parties’ debts unequally. As for the inequitable property distribution,
Christopher takes issue with the trial court’s disposition of their Mercedes (and its
-7-
Cite as 2011 Ark. App. 201
corresponding debt) and its order compelling him to reimburse Pheth for half of the money
he received for selling some of their furniture.
As for his argument regarding the car, the testimony at the hearing revealed that the
Mercedes was titled in Christopher’s name. He stopped making payments and paying for
insurance on that vehicle in November 2009. He contended that he was willing to sign the
car over to Pheth but that she would have to take the car to California to pass an emissions
test before he could do so. Instead of taking the Mercedes, Pheth purchased another vehicle.
The trial court awarded the Mercedes to Christopher and the other vehicle to Pheth. Both
parties were ordered to pay the respective debts on those vehicles.
As for the court’s order regarding the proceeds from the sale of furniture acquired
during the marriage, Christopher argues that he sold the property because he could not afford
the storage costs. He further argues that the court should have given him credit for the
storage fees he would have owed if he had not sold the furniture. However, the fact remains
that he did not expend those funds and the furniture was clearly marital property.
We will affirm a trial court’s division of property and allocation of debt unless the
decision is clearly erroneous. Farrell v. Farrell, 365 Ark. 465, 469, 231 S.W.3d 619, 622 (2006);
Evtimov v. Milanova, 2009 Ark. App. 208, at 10, 300 S.W.3d 110, 117. A finding is clearly
erroneous when, after reviewing the entire evidence, the appellate court is left with the firm
conviction that a mistake has been made. Farrell, 365 Ark. at 469, 231 S.W.3d at 622. We
give due deference to the trial court’s superior position to weigh the evidence and determine
the credibility of the witnesses before it. Id.
-8-
Cite as 2011 Ark. App. 201
In reviewing this decision, we also note that Ark. Code Ann. § 9-12-315 does not
compel mathematical precision in the distribution of property; it simply requires that marital
property be distributed equitably. Creson v. Creson, 53 Ark. App. 41, 917 S.W.2d 553 (1996).
Rather, the statute vests the trial court with a measure of flexibility and broad powers in
apportioning property, nonmarital as well as marital, in order to achieve an equitable
distribution; the critical inquiry is how the total assets are divided. Id. This court will not
substitute its judgment on appeal as to the exact interest each party should have but will only
decide whether the order is clearly wrong. Williams v. Williams, 82 Ark. App. 294, 108
S.W.3d 629 (2003). On our review of the record in this case, we cannot say that the trial
court’s order as to the division of property is clearly wrong.
Christopher’s primary argument regarding the trial court’s “inequitable division”
revolves around the trial court’s allocation of debt. He first argues that the trial court
inequitably divided the marital debts without providing findings under Ark. Code Ann. § 912-315(a)(1)(A) (Repl. 2009). However, section 9-12-315 does not apply to the division of
marital debts; hence, in Arkansas, there is no presumption that an equal division of debts must
occur, nor is there a requirement to make findings explaining an unequal division. Ellis v.
Ellis, 75 Ark. App. 173, 57 S.W.3d 220 (2001). In Ellis, the trial judge divided the marital
property equally and ordered the husband to pay seventy percent of the marital debts. There,
we affirmed the judge’s unequal division of the marital debts due to the disparity between the
parties’ incomes and their relative abilities to pay the debts.
-9-
Cite as 2011 Ark. App. 201
Although the division of marital debt is not addressed in Ark. Code Ann. § 9-12-315
(Repl. 2009), the trial judge has authority to consider the allocation of debt in a divorce case.
Williams v. Williams, 82 Ark. App. 294, 108 S.W.3d 629 (2003). In fact, an allocation of the
parties’ debt is an essential item to be resolved in a divorce dispute. Id. It must be considered
in the context of the distribution of all of the parties’ property. Id. A judge’s decision to
allocate debt to a particular party or in a particular manner is a question of fact and will not
be reversed on appeal unless clearly erroneous. Id. When considering the allocation of debt,
it is also appropriate that the judge consider who should equitably be required to pay it. Id.
In fact, it is not error to determine that debts should be allocated between the parties in a
divorce case on the basis of their relative ability to pay. Id.
Here, the trial court had before it evidence of the parties’ incomes and their respective
abilities to pay. After considering the evidence, the trial court divided the debt as set forth
in the decree. We give due deference to the trial court’s superior position to weigh the
evidence before it, and, on this record, we cannot say that the trial court’s award was clearly
erroneous. Finally, Christopher contends that the trial court erred in awarding attorney’s fees
to Pheth. The circuit court has the inherent power to award attorney’s fees in domesticrelations proceedings, and whether the circuit court should award fees and the amount thereof
are matters within the discretion of the circuit court. See Miller v. Miller, 70 Ark. App. 64, 14
S.W.3d 903 (2000). In making this determination, the circuit court must consider the relative
financial positions of the parties. Jablonski v. Jablonski, 71 Ark. App. 33, 25 S.W.3d 433 (2000).
-10-
Cite as 2011 Ark. App. 201
But while disparity in incomes is a relevant factor for the circuit court to consider, standing
alone, it will not justify an award of attorney’s fees. Davis v. Williamson, 359 Ark. 33, 194
S.W.3d 197 (2004).
In awarding attorneys’ fees, the circuit court may use its own experience as a guide and
can consider the types of factors set forth in Chrisco v. Sun Industries, Inc., 304 Ark. 227, 800
S.W.2d 717 (1990);2 but, it need not conduct an exhaustive hearing on the amount of
attorney’s fees because it has presided over the proceedings and gained familiarity with the
case and the services rendered by the attorney. See Paulson v. Paulson, 8 Ark. App. 306, 652
S.W.2d 46 (1983). Further, this court has not strictly required documentation of time and
expense in a divorce case where the circuit court has the opportunity to observe the parties,
their level of cooperation, and their obedience to court orders. See Deaton v. Deaton, 11 Ark.
App. 165, 668 S.W.2d 49 (1984).
However, in the case at bar, the trial court awarded attorney’s fees without any
discussion whatsoever and without providing any pertinent analysis of the Chrisco factors. If
a trial court fails to consider the Chrisco factors when awarding the attorney’s fees, we reverse
and remand for the trial court to make such an analysis. See Bailey v. Rahe, 355 Ark. 560, 142
2
The Chrisco factors to be considered by the trial court are: (1) the experience and ability of
the attorney; (2) the time and labor required to perform the legal services properly; (3) the
amount involved in the case and the results obtained; (4) the novelty and difficulty of the
issues involved; (5) the fee customarily charged in the locality for similar legal services; (6)
whether the fee is fixed or contingent; (7) the time limitations imposed upon the client or by
the circumstances; and (8) the likelihood, if apparent to the client, that the acceptance of the
particular employment will preclude other employment by the lawyer.
-11-
Cite as 2011 Ark. App. 201
S.W.3d 634 (2004); South Beach Beverage Co. v. Harris Brands, Inc., 355 Ark. 347, 138 S.W.3d
102 (2003); see also Lake View Sch. Dist. No. 25 v. Huckabee, 351 Ark. 31, 91 S.W.3d 472
(2002). Because there is no evidence that any such analysis took place in this case, we reverse
and remand the fee award for proper consideration of the Chrisco factors.
Affirmed in part; reversed and remanded in part.
G LOVER and H OOFMAN, JJ., agree.
-12-
