Patricia L. Langston v. Donald Lee Langston, Jr.

DIVISION IV

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

ANDREE LAYTON ROAF, JUDGE

CA02-928

FEBRUARY 19, 2003

PATRICIA L. LANGSTON

APPELLANT

v.

DONALD LEE LANGSTON JR. APPELLEE

APPEAL FROM PERRY COUNTY CIRCUIT COURT

[NO. E2001-83]

HONORABLE MACKIE PIERCE, CIRCUIT JUDGE

AFFIRMED

This is a child custody case. Appellant, Patricia Langston, and appellee, Donald Langston, separated on June 10, 2001. After a temporary custody hearing held September 12, 2001, the trial court awarded the parties joint custody of their two sons, ages eleven and eight. The court ordered that the two children alternate one-week periods with their parents. Following a hearing on March 21, 2002, the trial court awarded custody of the minor children to Donald and ordered Patricia to pay child support. On appeal, Patricia argues that the trial court erred in awarding custody of the children to Donald and in giving weight to the testimony of the children. We disagree and affirm.

In child custody cases, we review the evidence de novo, but we do not reverse the findings of the court unless it is shown that they are clearly contrary to the preponderance of the evidence. Thompson v. Thompson, 63 Ark. App. 89, 974 S.W.2d 494 (1998). Wealso give special deference to the superior position of the trial court to evaluate and judge the credibility of the witnesses in child custody cases. Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d 520 (1999). We have often stated that we know of no cases in which the superior position, ability, and opportunity of the trial court to observe the parties carry as great a weight as those involving children. Watts v. Watts, 17 Ark. App. 253, 707 S.W.2d 177 (1986). A finding is clearly against the preponderance of the evidence, when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Hollinger v. Hollinger, 65 Ark. App. 110, 986 S.W.2d 105 (1999). Patricia argues that the court's findings are clearly contrary to the preponderance of the evidence. In other words, Patricia claims that there was insufficient evidence to find that it was in the best interest of the children to be placed with Donald. In custody cases, the primary consideration is the welfare and best interests of the child involved, while other considerations are merely secondary. Drewry v. Drewry, 3 Ark. App. 97, 622 S.W.2d 206 (1981). See Ark. Code Ann. § 9-13-101(a) (Supp. 1999); see also Ark. Code Ann. § 9-13-101(a) (Repl. 1998).

In Patricia's first point on appeal, she argues that the trial court erred in awarding custody of the children to Donald. To support this contention she highlights her role prior to separation as the primary care giver, notes her job stability, comments on Donald's alleged "sexual immorality," and contends that Conway, where she resides, is the "social home" of the children.

"Although the fact that a parent had been the child's primary caretaker is relevant and worthy of consideration in determining which parent should be granted custody," see Thompson v. Thompson, 63 Ark. App. at 92, 974 S.W.2d at 496 (1998); Milum v. Milum, 49 Ark. App. 3, 894 S.W.2d 611 (1995), "it is not in and of itself determinative: the unyielding consideration in determining child custody is the welfare and best interest of the child." Brown v. Cleveland, 328 Ark. 73, 940 S.W.2d 876 (1997). Patricia contends that prior to the separation she handled the majority of the morning preparation and after school duties. She testified that Donald's role before the separation had been primarily that of assisting with the children's recreational activities. However, during the nearly year of joint custody of the children, this distinction no longer prevailed. Following the separation, Donald served as caregiver by timely getting the children to and from school, preparing meals, and helping with the boys' homework during his periods of custody. After assessing this evidence, we are not left with a "definite and firm conviction that a mistake has been made." Hollinger v. Hollinger, supra.

Patricia also contends that her superior position to care for the children based on her financial security was established by her accumulated thirteen-year employment with the same company. At trial, there was evidence that Donald had changed jobs eight to nine times over their thirteen-year marriage. While economic stability is important, there was no evidence presented that Donald is not financially stable or that the trial judge failed to consider his financial condition. Patricia further argues that the trial court erred by dismissing Donald's alleged "sexual immorality." Donald acknowledged making a crasscomment to at least one of his children regarding Patricia. Patricia also points out Donald's practice of taking photos of and keeping graphic adult material on the family computer which the children use regularly. However, there was testimony at trial that Patricia had participated in making such photos with Donald during their marriage. Moreover, there is

no proof that the boys were ever exposed to the pornographic material or that the trial judge failed to weigh this evidence in his decision.

Finally, Patricia argues that Conway, where she now resides, not Bigelow, where Donald resides, was the social home of the boys. Before the separation, the parties lived together in Bigelow in the home where Donald still resides, but the children attended school, church and Boy Scouts in Conway and participated in organized sports in Conway, which is only minutes away from Bigelow. Patricia offered no evidence that the boys' lives will change substantially or be adversely disrupted by living with Donald.

Patricia's second point on appeal is that the court erred in giving weight to the testimony of the children. She argues that the children's decision to request the court's permission to live with their father was influenced by Donald. She contends that promises of a swimming pool, a horse, and the opportunity to play football in Bigelow swayed the boys' decision. We are mindful of the settled rule that the attitudes and wishes of the child, although not controlling, are proper for the consideration of the chancellor in making an award of custody. Campbell v. Campbell, 336 Ark. 379, 387, 985 S.W.2d 724 (1999); Moore v. Smith, 255 Ark. 249, 499 S.W.2d 634 (1973). Both Patricia and Donald testifiedat trial that they wanted the court to consider the boys' wishes. Further, the trial court stated that the boys' testimony "was not the crucial or deciding factor for this Court." The court looked at the "totality of the testimony and at the overall situation" to determine custody of the children.

Giving deference to the trial court's superior position to evaluate the credibility of the witnesses and evidence, we cannot say that the decision to award custody to Donald was clearly erroneous.

Affirmed.

Crabtree and Baker, JJ., agree.