Johnny Robertson v. Kathy Robertson

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JUDGE KAREN R. BAKER

DIVISIONS IV

JOHNNY ROBERTSON

APPELLANT

V.

KATHY ROBERTSON

APPELLEE

CA02-225

OCTOBER 2, 2002

APPEAL FROM THE WOODRUFF COUNTY CIRCUIT COURT

[CR2000-160]

HON. BENTLEY EARL STORY, CIRCUIT JUDGE

AFFIRMED IN PART; REVERSED AND REMANDED IN PART

Appellant challenges the trial court's change of custody from a joint arrangement, which had been entered into by the parties and incorporated into the decree, to placing sole custody of the parties' son with appellee and ordering appellant to pay child support. Appellant, Johnny Robertson, and appellee, Kathy Robertson, were divorced on November 27, 2000. The parties shared joint custody with physical custody of the son being placed with his mother. The physical custody of the parties' daughter was placed with the appellant; however, the daughter was living in Germany with another relative at the time of these proceedings and custody of her was not at issue. On June 20, 2001, appellant filed a petition for a change of custody and asked that custody of the children be placed exclusively with him. Appellee filed a counter-petition for sole custody of the parties' children. On August 28, 2001, the court conducted a hearing on the two petitions. After hearing testimony from the parties, appellant's mother, and appellee's parents, the court awarded custody of the son to appellee and ordered appellant to pay child support in the amount of $65.00 a week. We affirm the trial court's award of custody to appellee, but reverse and remand on the order of

child support because the order fails to reference the family support chart.

A modification of the joint custody arrangement in this case was supported by the evidence. Testimony established that in the short period between the entry of the parties' decree and appellant's petition for a change of custody, the parties were unable to adequately communicate and cooperate in the raising of the son. Testimony indicated that appellee was scared of appellant because of his cursing her in front of the children and previously beating her. A restraining order was still in place against appellant, which was relaxed only for purposes of facilitating exchange of the children for visitation. Because the parties' son would split his time during the week between the two households, the exchanges between the parties were more frequent. In addition, the child would leave necessary items at one place or the other which interfered with his school work and preparation.

The primary focus of a court in making a custody determination is on the best interest and welfare of the child. Our laws do not favor joint custody, unless it is clear that the parties have demonstrated a mutual ability to cooperate in reaching shared decisions concerning the child's welfare. Hobbs v. Hobbs, 75 Ark.App. 186, 190, 55 S.W.3d 331, 334 (2001); see also Thompson v. Thompson, 63 Ark.App. 89, 974 S.W.2d 494 (1998). Although the parties had agreed at the time of the divorce to share custody, it is clear that at the time of the hearing on appellant's petition and appellee's cross-petition for a change of custody that the parties were not demonstrating such an ability to cooperate. The child's splitting of time between the households was creating difficulties for him. Therefore, the trial court did not err in finding that a change from the joint custody arrangement was in the child's best interest.

Neither did the court err in placing custody of the child with appellee. Under the parties' original agreement, the child was to reside with appellee. Testimony established that despite thedifficulties between the parties, appellee accommodated appellant for visitation. Other evidence suggested that it would be more difficult for appellee to maintain visitation with the child if he were in appellant's custody. In custody cases, special deference is given to a judge's finding because of the judge's superior position to determine witness credibility, testimony, and the best interest of the child. Hobbs, 75 Ark. App. at 190, 55 S.W.3d at 334. We afford this special deference here and affirm on this point.

However, we must reverse and remand on the issue of child support. The trial court failed to reference the child support chart in determining the amount of child support awarded to appellee. The order itself states that the court set child support based upon appellant's "assumed" income. While we recognize the difficulty faced by judges when a party fails to properly set forth income and assets as required by our procedural rules, a finding of income and reference to the child support chart is mandatory. Black v. Black, 306 Ark. 209, 214, 812 S.W.2d 480 (1991). Ordinarily, the amount of child support lies within the sound discretion of the chancellor. Irvin v. Irvin, 47 Ark.App. 48, 52, 883 S.W.2d 862 (1994). Factors affecting child support and its modification do not lend themselves to hard and fast rules, and the discretion of the chancellor plays a significant role in these determinations. Carlton v. Carlton, 316 Ark. 618, 622, 873 S.W.2d 801 (1994). Accord Kimbrell v. Kimbrell, 47 Ark.App. 56, 59, 884 S.W.2d 268 (1994); Waldon v. Waldon, 34 Ark.App. 118, 122, 806 S.W.2d 387 (1991). Nevertheless, the reference to the child support chart must be made. Accordingly, we reverse and remand on the issue of child support.

Affirmed in part; reversed and remanded in part.

Stroud, C.J., agrees.

Crabtree, J., concurs.