Renita Kay Lisenby v. Joe R. Lisenby

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISION III

RENITA KAY LISENBY

APPELLANT

V.

JOE R. LISENBY

APPELLEE

CA 01-307

OCTOBER 31, 2001

APPEAL FROM THE LITTLE RIVER

COUNTY CHANCERY COURT

[NO. E-2000-99]

HONORABLE TED C. CAPEHEART,

CHANCERY JUDGE

AFFIRMED

Appellant Renita Kay Lisenby appeals the October 17, 2000, divorce decree, issued by the Little River County Chancery Court that granted custody of the parties' minor children to appellee Joe R. Lisenby, arguing that the chancellor's decision is clearly erroneous. We disagree and affirm.

Chancery cases are tried de novo on appeal. Hollinger v. Hollinger, 65 Ark. App. 110, 986 S.W.2d 105 (1999). The findings by a chancellor will not be disturbed unless they are clearly erroneous or clearly against the preponderance of the evidence. Stone v. Steed, 54 Ark. App. 11, 923 S.W.2d 282 (1996). 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 committed. Fonken v. Fonken, 334 Ark. 637, 976 S.W.2d 952 (1998); Marler v. Binkley, 29 Ark. App. 73, 776 S.W.2d 839 (1989). Because there are no cases in

which the superior position, ability, and opportunity of the chancellor to observethe parties and their witnesses carry as great a weight as one involving the custody of children, the appellate court defers to the chancellor's determination as to the credibility of the witnesses. Lumpkin v. Gregory, 262 Ark. 561, 559 S.W.2d 151 (1977); Riddle v. Riddle, 28 Ark. App. 344, 775 S.W.2d 513 (1989); Anderson v. Anderson, 18 Ark. App. 284, 715 S.W.2d 218 (1986).

The polestar consideration concerning custody and visitation is the best interest of the child; all other considerations are secondary. Digby v. Digby, 263 Ark. 813, 567 S.W.2d 290 (1978). Factors a court may consider in determining what is in the best interest of the child include the psychological relationship between the parents and the child, the need for stability and continuity in the child's relationship with parents and siblings, the past conduct of the parents toward the child, and the reasonable preference of a child. Rector v. Rector, 58 Ark. App. 132, 947 S.W.2d 389 (1997); Anderson v. Anderson, 43 Ark. App. 194, 863 S.W.2d 325 (1993). Custody is not awarded as a reward to, or punishment of, either parent. Ketron v. Ketron, 15 Ark.App. 325, 692 S.W.2d 261 (1985). Young children should not be separated from one another by dividing their custody in the absence of exceptional circumstances. Id.

With these legal principles and the standard of review in mind, we examine the evidence presented to the chancellor in this divorce case. Two children were born to the parties' marriage: Tara Lynn Lisenby, born on November 27, 1986, and James Tyler Lisenby, born on May 23, 1989. During the marriage, Renita was a stay-at-home mother for the most part, though she took part-time jobs occasionally, while Joe worked to support hisfamily through employment with the local paper mill, where he had worked for about twenty years.

Joe filed a complaint for divorce from Renita on June 9, 2000, basing his cause of action upon general indignities offered him by Renita and seeking custody of the children. However, the children remained in Renita's custody pending divorce pursuant to a temporary hearing conducted on June 13, 2000, and the resulting order of July 25, 2000. Renita was given the use and enjoyment of the marital home, was awarded temporary alimony, and was to receive temporary child support. A final hearing was conducted on October 7, 2000, on the issues of grounds, custody, and property division. The chancellor took the case under advisement at the conclusion. The divorce decree and custody determination was rendered by an order filed of record on October 17, 2000. At the time of the divorce, the children were thirteen (Tera) and eleven (Tyler). A subsequent motion for new trial was deemed denied by operation of law, and a timely notice of appeal to the October 17, 2000, decree was filed. The property division and child support issues were decided in later orders, from which appeal was not taken. We affirm the chancellor's decision.

The evidence received at the hearing provided the following facts. The children, by all accounts, were pretty well adjusted and high academic achievers. The real contention between the parties pertained to Joe's uneven temper and anger outbursts at Renita due to alleged infidelities, a matter of proof regarding Joe's grounds for divorce. Both parties admitted to past drug use, and Joe admitted to drinking excessively in the past. Each tookissue with the other's fitness as a parent. Joe thought that Renita was morally unfit, based upon her staying out at night and cavorting with other men. Renita thought that his paranoia about her having affairs and resulting rage at her made him unfit to care for the children. Moreover, she suggested that she had been the children's primary caretaker all of their lives, and Joe did not have enough time to care for them due to his work schedule. Renita had secured a job with an insurance company to commence after the divorce, and she believed she would have enough flexibility to meet the children's need for her presence at home and at school activities. However, there was agreement that both children loved their parents, and the parents loved their children. Each party had otherwise fulfilled his or her role in the family unit as a homemaker or a provider.

The parties had built a log home on land owned by Renita's family, and she was awarded the use and enjoyment of the marital home. Joe planned to build another log home on land owned by his family, and Joe's parents agreed to move out of their mobile home so that Joe and the children could live there while Joe built a new home. Both parties' parents were available to each of them to assist with the children, as they were all retired.

The children were taken into chambers where they conferenced with the chancellor and the attorneys. Tera confirmed that the man with whom their mother admittedly had an affair, Mr. Dossett, came to their home on occasion and that she did not like him. Tyler also stated that he did not like Mr. Dossett. The children stated that they had lived with their mother up to that point and visited their father, but that if custody was changed, they would not have to change schools. Tera voiced a preference to live with her father because she gotalong better with him than her mother. Tyler stated that he thought about where he wanted to live but could not come up with an answer. While a child's preference is not binding, it is a factor to be considered by the chancellor. Turner v. Benson, 59 Ark. App. 108, 953 S.W.2d 596 (1997).

The chancellor took the case under advisement, and he rendered an order that granted custody to Joe. The chancellor found that the children should remain together and that Tera's preference to live with her father was sincere and reasonable. He also noted Renita's ongoing affair with a convicted felon and the children's knowledge of it.

Renita's contention on appeal is that the chancellor clearly erred in granting custody to Joe because the chancellor placed undue weight on the fact that she engaged in an extramarital affair with a convicted felon. She asserts that, though this may be the case, the chancellor ignored the fact that her then-husband was not without imperfection in that he had abused alcohol and drugs, and he had convictions for possession of marijuana and driving while intoxicated. Appellant stated further that Joe's use of methamphetamine was the primary cause of the marriage breakup, though she admitted to using the drug herself. She testified that over the course of the marriage, the children had observed their father drinking and "on his hands and knees." She also stated that Joe was controlling and verbally abusive to her. On one occasion near the end of their marriage, he fired a rifle at the flowerbed surrounding their home while she was present because he was angry at her for staying out all night. Renita acknowledges that Tera voiced a preference to live with her father at the final hearing, but that this is because her father is too permissive and does not set boundaries. In sum, Renita argues that Joe is not the better custodial parent for the children and that the chancellor clearly erred in deciding otherwise, especially in light of the fact that she had been their primary caretaker all of their lives.

On these facts, we cannot say that the chancellor clearly erred in awarding custody to appellee. Both parties have had their personal problems, particularly as the divorce became imminent, but the only concern regarding custody is the best interests of the children. The chancellor was faced with the difficult and daunting task of choosing in whose custody the children's best interests would be served. In such cases, we will not substitute our judgment for that of the trial court, unless it is arbitrary or clearly against the preponderance of the evidence. See Bonds v. Lloyd, 261 Ark. 272, 547 S.W.2d 431 (1977); Standridge v. Standridge, 248 Ark. 392, 451 S.W.2d 726 (1970); Crawford v. Hopper, 186 Ark. 1098, 57 S.W.2d 1048 (1933). We are not convinced that the chancellor clearly erred, and therefore we affirm.

Baker and Roaf, JJ., agree.