Steven Nickell v. William R. Simone

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

DIVISION II

STEVEN NICKELL

APPELLANT

V.

WILLIAM R. SIMONE

APPELLEE

CA 02-355

SEPTEMBER 25, 2002

APPEAL FROM THE FAULKNER COUNTY PROBATE COURT

[NO. PR 2001-21]

HONORABLE CHARLES EDWARD CLAWSON JR., JUDGE

AFFIRMED

The appellant, Steven Nickell, appeals the decision of the Faulkner County Probate Court, which denied his petition to adopt his step-daughter, K.S. On appeal, appellant claims that the probate court's decision should be reversed because (1) the trial court erred in finding that Ark. Code Ann. § 9-9-207(a)(2) (Supp. 1999) did not control whether the biological father's consent to the adoption was necessary, (2) the trial court used an incorrect definition of abandonment, and (3) the trial court erred in finding that it was not in the child's best interest to grant the adoption. We affirm.

The appellee, William Simone, married Kandice Nickell and had one daughter K.S., born on April 15, 1997. The couple divorced on May 8, 1998. According to the divorce decree, the couple had joint custody of the child, with Kandice maintaining primary physical custody and appellee having visitation. Appellee was ordered to pay child support.

Appellee was found in contempt of court on December 6, 1999, for failure to pay child support, failure to pay his share of medical expenses, and failure to pay marital debts as required by the couples' property settlement agreement. On June 19, 1999, appellant married Kandice. On January 16, 2001, appellant filed a petition to adopt K.S. In the petition, appellant argued that appellee's consent to the adoption was not required because he failed to provide financial support for his daughter for over one year. After a hearing, the Faulkner County Probate Court denied appellant's petition and found that appellee had not abandoned his daughter and that it was not in the child's best interest to grant the adoption.

We note that appellant's addendum fails to contain the notice of appeal and designation of the record. A review of the notice of appeal filed by an appellant is necessary in determining whether we have jurisdiction over a matter. See Ark. Sup. Ct. R. 4-2(a)(8) (2002); Ballard v. Garrett, 349 Ark. 29, 75 S.W.3d 688 (2002). Supreme Court Rule 4-2(a)(8) provides in relevant part:

Following the signature and certificate of service, the appellant's brief shall contain an addendum which shall include true and legible photocopies of the order, judgment, decree, ruling, letter opinion, or Workers' Compensation Commission opinion from which the appeal is taken, along with any other relevant pleadings, documents, or exhibits essential to an understanding of the case and the court's jurisdiction on appeal. In the case of lengthy, pleadings or documents, only relevant excerpts in context need to be included in the addendum. Depending upon the issues on appeal, the addendum may include such materials as the following: a contract, will, lease, or any other document; proffers of evidence; jury instructions or proffered jury instructions; the court's findings and conclusions of law; orders; administrative law judge's opinion; discovery; documents; requests for admissions; and relevant pleadings or documents essential to an understanding of the court's jurisdiction on appeal such as the notice of appeal.

Id. Although appellant failed to include in his addendum the notice of appeal and designation of the record, we have reviewed the transcript and note that it was filed on October 31, 2001. We have the authority to go to the record to affirm a trial court's decision, and we do so here. Hosey v. Burgess, 319 Ark. 183, 890 S.W.2d 262 (1995).

We agree with appellant that the trial court failed to properly apply Ark. Code Ann. § 9-9-207(a)(2) to the facts of this case. Rather, the court relied on Ark. Code Ann. § 9-9-220 (Supp. 1999). Appellant also argues that the court used the wrong definition of abandonment in reaching its decision. We need not consider the definition of abandonment because Ark. Code Ann. § 9-9-207(a)(2) does not contemplate abandonment. Abandonment need only be considered under the terms of Ark. Code Ann. § 9-9-220, which does not apply in this instance. Ark. Code Ann. § 9-9-207(a)(2) provides that consent to adoption is not required of:

[a] parent of a child in the custody of another, if the parent for a period of at least one (1) year has failed significantly without justifiable cause (i) to communicate with the child or (ii) to provide for the care and support of the child as required by law or judicial decree.

The trial court stated in its order, "Respondent has failed to pay child support as previously ordered, without just cause, for a period of more than two (2) years." The evidence at the hearing clearly established that appellee failed to support K.S. for at least one year. Therefore, pursuant to Ark. Code Ann. § 9-9-207(a)(2), appellee's consent was not necessary for the adoption to be granted.

Nonetheless, we affirm the trial court's decision not to grant the adoption because thetrial judge found that it would not be in K.S.'s best interest to do so. We review probate proceedings de novo, and the decision of the probate court will not be disturbed unless clearly erroneous, giving due regard to the opportunity and superior position of the trial judge to determine the credibility of the witnesses. Dale v. Franklin, 22 Ark. App. 98, 733 S.W.2d 747 (1987). When minor children are involved, a heavier burden is placed on the court to exercise all its powers of perception in viewing the witnesses and their testimony when determining the best interest of the children. In the Matter of the Adoption of J.L.T., 31 Ark. App. 85, 788 S.W.2d 494 (1990).

Before granting an adoption, the probate court must find by clear and convincing evidence that the adoption is in the best interest of the child. Apel v. Cummings, 76 Ark. App. 93, 61 S.W.3d 214 (2001). Although appellee failed to exercise his court-ordered visitation with K.S. for a period of more than two years, appellee maintained regular contact with his daughter during his parents' visitation periods. The trial court found that K.S. knew her father, his parents, and her extended family, and that it would not be in the child's best interest to terminate those relationships. No evidence was presented that appellee or his extended family was "unkind or hurtful to [K.S.], either physically or emotionally." In the instant case, giving due regard to the trial court's assessment of the credibility of the witnesses, we find its decision that the appellant failed to meet his burden by clear and convincing evidence was not clearly erroneous.

Affirmed.

Jennings and Vaught, JJ., agree.