Rebecca Hodges v. Garfield Hodges, III

ca00-661

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

CHIEF JUDGE JOHN F. STROUD, JR.

DIVISION III

REBECCA HODGES

APPELLANT

V.

GARFIELD HODGES, III

APPELLEE

CA 00-661

May 16, 2001

APPEAL FROM THE CRAWFORD

COUNTY CHANCERY COURT

[CR-99-730]

HONORABLE GARY R.

COTTRELL,CIRCUIT/CHANCERY

JUDGE

REVERSED AND REMANDED

Appellant, Rebecca Hodges, and appellee, Garfield "Trey" Hodges, III, were married on June 18, 1994. After numerous separations, the parties separated permanently in May 1998. One child, a daughter, Breann LaJean Hodges, was born of this marriage on December 15, 1995. At the time of the separation in May 1998, allegedly unbeknownst to Rebecca, Trey took Breann to Mississippi, where he was living with his mother. On July 24, 1998, Rebecca filed a complaint for divorce in Crawford County, alleging that she was the proper person to have custody of Breann. On November 2, 1998, an ex parte order was entered that awarded Rebecca custody of Breann. On November 10, 1998, Trey filed his answer to Rebecca's complaint, stating that he and Breann had been living in Mississippi since May 31, 1998; that Rebecca had agreed to let Breann move with him to Mississippi;that he was the fit and proper person to have custody of Breann; and that although Rebecca knew where Breann was residing, she made no attempt to contact him to inquire about her welfare. At the time he filed his answer, Trey also filed a motion to set aside the ex parte order granting Rebecca custody of Breann.

A hearing was held on the motion to set aside the ex parte order on November 24, 1998. Trey presented evidence that Rebecca would regularly go out at night to clubs and drink, once even leaving Breann and Breann's half-brother, Colby, with a fifteen-year-old babysitter when Trey was working. He also testified that Rebecca had told him that she was smoking marijuana, and that he could smell it on her when she came home. He said that he found out Rebecca was involved in relationships with other men in the spring of 1998, and she went to Texas with one of the men for two weeks during that time. Trey testified that he was the person who cared for the children. Rebecca denied all of these allegations. Trey also presented evidence that during the time she was in Mississippi with him, he potty-trained Breann and weaned her from her bottle and pacifier. He admitted that he had not told Rebecca how to contact him in Mississippi. Shawn Layman, a licensed private investigator, testified in Trey's behalf regarding the dilapidated condition of Rebecca's residence, including a collapsing back porch and items such as gas cans strewn in the yard. At the close of the November 24, 1998, hearing, the following colloquy occurred:

Court:

The Court having heard the testimony, is of the opinion that the custody, subject to the conditions outlined herein will go to the father of the child. Subject to the home conditions of the father being investigated by DHS to satisfy the Court that there'ssome suitable location - some suitable person to assist in the care of this child, subject further to the mother of the child having custody until January - temporary custody until January of next year.

The Court believes that there's evidence here to indicate that the traditional notions about values have not been demonstrated by the mother in that there's evidence that simply the proper conduct to have care and to set an example for care has not been demonstrated.

. . .

Are there any questions about the Order of the Court?

Counsel for Appellant:

Just a few, Your Honor. I'm not arguing, I just want to make sure I understand . . . . My client, the mother has temporary custody until January?

Court:

Yes.

Counsel for Appellant:

`99, at that time permanent custody will be awarded to . . .

Court:

. . . subject to the home conditions report being back. I would expect that forthwith - the - the DHS, and if we need to go through our local DHS office to have the Mississippi DHS do a home investigation, the father needs to make that address wherever he is gonna be keeping this child available to DHS so that they can locate the property and have the DHS in the State of Mississippi make a home investigation report.

Counsel for Appellant:

What are the visitation arrangements of the father during the time that my client has the child, which is about a month and a half?

Court:

I'm gonna simply let the mother have the child during that time. I mean I think that she's been deprived since May. The Court feels it is appropriate and that's one of the reasons the Court's granting her this visitation at this time.

Counsel for Appellant:

Your Honor, seeing as how we're in the middle of a divorce proceeding, I would assume that temporary custody would go from my client to him after January of 1998?

Court:

That's correct.

Counsel for Appellee:

January `99?

Court:

It is subject to the home conditions of the report being favorable . . . .

Temporary custody of Breann was placed with Trey in January 1999. At the final divorce hearing, held on April 5, 1999, and continued on August 27, 1999, the parties presented additional evidence on the issue of custody. The Mississippi home evaluation of Trey's residence was entered into evidence, stating that it was the recommendation of the Winston County Department of Human Services that Trey could and would provide a "good, loving and appropriate home" for Breann.

Rebecca stated that she has had custody of Colby all of his life, and that he and Breann were close. She said that during the time she had custody of Breann before Trey'stemporary custody, Trey called Breann, but since Trey gained temporary custody, she had not phoned Breann because she did not have a phone number for Trey. Rebecca testified that she believed she should have custody of Breann because she loved her and because Colby loved her.

Carol Ann Hodges, Trey's mother, testified with regard to the residence in which she, Trey, and Breann resided, and she presented photographs of the inside and the outside of the townhouse. She said that she took Breann to daycare, but Trey normally picked her up unless he had to work late. She also stated that Trey was Breann's primary caregiver; that he gave her all of his attention when he was at home; that he took her to the doctor; that he potty-trained Breann; that he read to her and prayed with her at night; and that they went to church together on Sundays. She said that there were no plans for Trey and Breann to move out of the townhouse.

Trey testified that Rebecca had brought her boyfriend to pick Breann up for visitation, and he expressed his concern that Rebecca was spending the night with people to whom she was not married. Trey said that he was the person who took care of Breann's needs, except when he had to work overtime, and his mother would bathe her and fix her supper. He also stated that he took Breann to church. Trey testified that during the marriage, Colby stayed with Rebecca's parents ninety percent of the time. He also reiterated his concern about whom Rebecca had previously left the children with while they were still living together; herlifestyle of going to bars and drinking; the allegations that she was seeing several men; and Rebecca's alleged drug use.

On rebuttal, Rebecca testified that she had remarried her current husband, Charles Holmes, after dating him for six months, and she now lived with him in Stuttgart. She said that she did not work, that she was a homemaker and cared for Colby. She testified that she was the person who had taken care of the children during her marriage to Trey, and she did not "pawn the children off" as Trey suggested. She admitted that her current husband had gone with her to get Breann for visitation, but denied that a lot of men had gone with her to get Breann. She denied using any type of illegal drugs. She testified that she should have custody of Breann because she loved her and missed her; Colby loved and missed her; she was available to care for Breann full time because she was not working; Trey could not take care of her; and Trey's mother was the person who took care of Breann.

Charles Holmes testified that he and Rebecca had been married since July 16, 1999, and he was supportive of Rebecca's desire to have custody of Breann. He stated that he had never seen Rebecca use any illegal drugs. He said that he had been divorced for about a year and had two children from that marriage; however, he only saw them once a year because that was all the visitation he had been granted and they lived in Virginia. He said that although Rebecca was not working at this time, he did intend for her to work.

On appeal, Rebecca contends: (1) the chancellor erred when there was no finding of what was in the best interests of the child in the final order, in a letter opinion, or commentsfrom the bench when he granted custody to Trey; (2) the chancellor erred in finding that there was no substantial change in circumstances for a change in custody when the application of that standard was not appropriate because a previous permanent custody order had not been entered; and (3) the chancellor's ruling was clearly against the preponderance of the evidence when he granted custody of Breann to Trey.

The appellate courts review chancery cases de novo and will not reverse a finding of fact by the chancery court unless it is clearly erroneous. Kelly v. Kelly, 341 Ark. 596, 19 S.W.3d 1 (2000). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. O'Fallon v. O'Fallon, 341 Ark. 138, 14 S.W.3d 506 (2000). However, we do not defer to a chancery court's conclusion on a question of law; if the chancery court erroneously applied the law and the appellant suffered prejudice as a result, we will reverse the chancery court's erroneous ruling on the legal issue. Oliver v. Oliver, 70 Ark. App. 403, 19 S.W.3d 630 (2000).

Points one and three are intertwined; therefore, we discuss them together. Rebecca argues that the chancellor's decision to award permanent custody of Breann to Trey was clearly against the preponderance of the evidence, and she further contends that the chancellor failed to make any findings of what was in the best interest of Breann when permanent custody was vested in Trey. We must disagree.

In child-custody cases, the chancellor has a heavy burden of evaluating the witnesses and their testimony and determining what is in the child's best interest; there are no cases in which the superior position, ability, and opportunity of the chancellor to observe the parties carry as great a weight as those involving child custody. Rector v. Rector, 58 Ark. App. 132, 947 S.W.2d 389 (1997). Where testimony conflicts, the issue of credibility is a matter in which this court defers to the chancellor. Id.

At the conclusion of the final hearing, the chancellor made the following ruling:

Based upon the testimony, the exhibits, and other matters before the Court, the Court is going to keep the custody the way it is. But I'm going to say, based on the marriage of [Rebecca], she's greatly helped her situation. And getting to hear the testimony of her husband, I'm impressed by him.

The circumstances are this, is that, basically, I'm not making a change. I'm entering a permanent order. I'm not making a change because of two circumstances. Their history hasn't been long, and the child is young, and moving her around, right now, I think would do damage, would not be good for her at this moment.

So, the Court is going to leave the custody with the father at this time or make an order that the custody be with the father and remain there.

In the present case, the testimony of the parties was often in direct conflict on subjects such as who was Breann's primary caregiver, how the parties conducted themselves during the last months of the marriage, and whether Rebecca's other child, Colby, lived with the parties during the marriage. Given the chancellor's decision, it is apparent that he believed Trey's testimony, and this court is bound by that decision. From a review of these findings and comments, it is apparent that the chancellor considered what was in the best interest ofBreann at the time he made his decision on permanent custody, and he determined that it would be in her best interest to vest permanent custody with Trey. He noted that Rebecca had improved her situation from the time of the temporary hearing to the permanent hearing; however, he opined that Breann was young and that moving her around would not be good for her at this time. Given the extensive evidence the chancellor had before him regarding both parties' conduct in the months following the separation, both positive and negative, we cannot say that his decision to vest permanent custody with Trey is clearly erroneous.

Rebecca also argues that the chancellor erred in separating Breann from her half-brother Colby, citing Freshour v. West, 334 Ark. 100, 971 S.W.2d 263 (1998); Johnston v. Johnston, 225 Ark. 453, 283 S.W.2d 151 (1955); and Ketron v. Aguirre, 15 Ark. App. 325, 692 S.W.2d 261 (1985), for the proposition that unless exceptional circumstances are involved, young siblings should not be separated from each other by dividing their custody. However, all of these cases are distinguishable from the case at bar.

In the Johnston case, our supreme court reversed the change of custody of one of three children from the father to the mother; however, the reason for reversal was because the mother had not shown a change in circumstances to justify a modification of custody. Our case concerns the initial permanent award of custody, not a change in custody. In Freshour and Ketron, the appellate courts affirmed the decisions of the chancellors to keep custody of the siblings together, while Rebecca is asking us to reverse the chancellor's decision that separated the siblings.

Furthermore, this court recently held that a party cannot use a finding that it is in one child's best interest for custody to be awarded to a parent to infer that it is in the best interest of another child for custody to be awarded to the same parent; such inferences would allow child custody to be determined based on a presumption. Atkinson v. Atkinson, 72 Ark. App. 15, 32 S.W.3d 41 (2000). We also held that to allow an award of child custody based upon such a presumption would be contrary to Act 278 of 1979, codified at Ark. Code Ann. § 9-13-101(a) (Supp. 1999), which mandates that custody shall be determined based upon the welfare and best interests of the child. Id.

In the present case, we must note that there was conflicting testimony as to whether Colby actually lived with Rebecca or if he spent the majority of his time with his maternal grandparents. Other than Rebecca's self-serving testimony, there was no evidence presented that Colby and Breann had established a close relationship. Simply because half-siblings exist does not mandate that they must be placed together; the best interest of the child in question is the polestar for custody decisions.

However, we find merit in Rebecca's last point on appeal -- that the chancellor erred in finding that there was no substantial change in circumstances for a change in custody when the application of that standard was not appropriate because a previous permanent custody order had not been entered. In support of this argument, she cites Fitzgerald v. Fitzgerald, 63 Ark. App. 254, 976 S.W.2d 956 (1998), and Milum v. Milum, 49 Ark. App. 3, 894 S.W.2d 611 (1995).

Milum was affirmed by this court in a split vote of three to three, and "an affirmance by an equally divided court is not entitled to precedential weight." France v. Nelson, 292 Ark. 219, 221, 729 S.W.2d 161, 163 (1987). However, in Fitzgerald, this court held that "because there had been no prior final decree or final adjudication of custody, the chancellor erred in requiring sufficient evidence to justify a change of custody." 63 Ark. App. at 260, 976 S.W.2d at 959.

In the present case, the chancellor made the following finding in the order entered on November 15, 1999:

The Court finds that there was one (1) minor child born to this marriage, namely, Breann LaJean Hodges, whose date of birth is December 15, 1995. The Court finds that the Plaintiff has improved her circumstances, however, the Court does not find a substantial change in circumstances and finds that the Defendant/father shall is [sic] awarded permanent care, custody, and control of the parties' minor child, subject to that visitation with the Defendant [sic] as previously set forth by the Court . . . . (Emphasis added.)

We find the holding in Fitzgerald to be controlling in this case. Although the chancellor's comments from the bench do not reflect what was recorded in the order, such comments cannot be construed by us to overcome his specific finding made in the written order. We therefore reverse and remand this case for entry of an order consistent with this opinion.

Reversed and remanded.

Jennings and Neal, JJ., agree.