Mitchell Mark Benge, Sr. v. Nicole Batte

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN MAUZY PITTMAN, JUDGE

DIVISION II

MITCHELL MARK BENGE, SR.

APPELLANT

V.

NICOLE BATTE

APPELLEE

CA00-103

December 20, 2000

APPEAL FROM THE MILLER COUNTY PROBATE COURT

[NO. P-99-068-2]

HON. JAMES SCOTT HUDSON, JR.,

PROBATE JUDGE

AFFIRMED

This probate case involves appellee's petition to be appointed guardian of her two minor nephews, M.B. and D.M. Appellant, who is M.B.'s father, opposed the petition and argued that he was fit and qualified to have care and custody of M.B. The probate judge granted appellee's petition and appointed her as guardian of both boys. From that decision, comes this appeal.

For reversal, appellant contends that the probate judge erred in failing to give preference to him as father for guardianship of M.B. He also contends that the probate judge erred in failing to consider M.B.'s preference as to who should be appointed his guardian. We find no error, and we affirm.

Although probate proceedings are reviewed de novo on the record, the decision of the probate judge will not be disturbed unless it is clearly erroneous, and in making that determination, we give due regard to the opportunity and superior position of the trial judge to judge the credibility of the witnesses. Hooks v. Pratte, 53 Ark. App. 161, 920 S.W.2d 24 (1996). At the hearing, there was evidence that the two boys, ages nine and twelve, are half-brothers who had always lived together with their mother until her suicide on March 2, 1999. Appellee, the boys' maternal aunt, lived next door to the boys and their mother in Texarkana, Arkansas. Before their mother's death, appellee helped with the boys by picking them up from school and keeping them when their mother was at work. She saw the boys almost every day, and she has a four-year-old son who gets along well with his cousins.

After their mother died, both boys spent two weeks with appellant at his home in Oklahoma, and then returned to Texarkana where they lived with appellee and returned to their schools. The boys would continue in Texarkana public schools, living together next door to their former home, if appellee's guardianship is affirmed. Appellee testified that the boys are very close to one another, that they need each other, and that her greatest concern is that they not be separated. The grandfather of D.S. testified that he also believes that the boys should not be separated, and that he agreed that appellee should be appointed guardian of D.S. so long as the boys are allowed to stay together.

Appellant testified that he is M.B.'s father, and that he loves M.B. very much. Appellant lived with the boy until he and M.B.'s mother separated and divorced in 1995. He has since lived in Fort Worth and Oklahoma. He presently resides in Oklahoma with hisgirlfriend and her children. Appellant has known his girlfriend for almost a year and has no definite plans to marry. He admitted that he was convicted of second-degree battery and incarcerated in 1984, but stated that was the only time he had ever been in trouble. He testified that he is a carpenter, that he is now employed full-time, and that he is financially able to take care of M.B. However, although appellant testified that he had been consistently employed, and that he was ordered to pay child support through the registry of the court at the time of his divorce, the chancery court records introduced into evidence showed that appellant never paid any child support through the court registry, and appellant conceded that he had not a single receipt, check stub, or piece of paper to show that he had ever paid any child support since the divorce in 1994. He stated that he nevertheless did pay some support to M.B.'s mother, but that he did so by mailing cash.

Appellant argues he was not expressly found to be unfit or unsuitable as a custodian for M.B., and that his rights as parent are therefore paramount. We do not agree. First, the trial judge was not required to make specific findings in the absence of a request to do so by the parties, see Ark. R. Civ. P. 52, and no such request appears in the record. Second, parental rights are not the paramount factor in cases involving the guardianship of a minor; any inclination to appoint a relative must be subservient to the principle that the child's interest is of paramount consideration. Blunt v. Cartwell, ___ Ark. ___, ___ S.W.3d ___ (November 16, 2000).

Arkansas Code Annotated § 28-65-210 (1987) requires that the person appointed guardian of a minor must be qualified and suitable to act as such. Section 28-65-204(a)(Supp. 1999) provides that the parent of an unmarried minor shall be preferred over all others for appointment as guardian if qualified and, in the opinion of the court, suitable. Although the probate judge remarked from the bench that appellant cared for his son and was able to meet some of his needs, that does not compel a conclusion that the chancellor believed appellant to be a qualified and suitable guardian. Despite appellant's testimony that he sporadically paid child support by mailing cash, clearly there was evidence to support a finding that appellant had totally failed to perform his parental duty of providing financial support for M.B. See Blunt v. Cartwell, supra.

Although, all things being equal, the law will favor a natural parent over all others, this rule is premised on the assumption that the parent is in fact contributing to the care and support of his children to the best of his abilities.

It is well settled that parental rights are not proprietary ones and are subject to the faithful performance of the correlated duties and the obligations of a parent to care for and protect the child. The law will protect the preferential right of a parent only so long as that parent discharges these correlated duties, and this preference should not be continued beyond the point where those duties and obligations are ignored or have been shifted to others. Watkins v. Dudgeon, 270 Ark. 516, 606 S.W.2d 78 (Ark. App. 1980); Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979). It has been stated that this preference for natural parents is based on the presumption that they will take care of their children, bring them up properly, and treat them with kindness and affection, but when that presumption has been dissipated the courts will interfere and place the child where those duties will be discharged by someone more willing and able to do so.

Manuel v. McCorkle, 24 Ark. App. 92, 98-99, 749 S.W.2d 341, 344 (1988). In addition to the absence of any record, receipt, notation, or other evidence that appellant had ever supported M.B. since the divorce despite being steadily employed, appellee testified that appellant provided no support for M.B. even while she was caring for him after his mother's death. The question is one of credibility and, giving due deference to the probate judge's superior position to determine the credibility of the witnesses, we cannot say the probate judge clearly erred in finding that appellant was not a suitable custodian. See Blunt v. Cartwell, supra; see also Hooks v. Pratte, supra.

Appellant also argues that the probate judge erred in failing to consider M.B.'s preference as to who should be appointed his guardian. However, although M.B. was present on the day of the hearing, neither party inquired as to his preference or presented any other evidence regarding the issue. Arkansas Code Annotated § 28-65-204(c) requires the probate judge to take into consideration any request made by the incapacitated person concerning his preference regarding the person to be appointed guardian; it also provides that the incapacitated person need not appear before the court for the purpose of indicating his preference. Here, there was no evidence regarding M.B.'s preference of guardian and, despite appellant's argument to the contrary, the probate judge was not required to investigate the question sua sponte.

Affirmed.

Griffin and roaf, JJ., agree.