Scott Dewayne Schantz v. Darline Marie Schantz

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION ROBERT J. GLADWIN, JUDGE

DIVISION III

SCOTT DEWAYNE SCHANTZ

APPELLANT

V.

DARLINE MARIE SCHANTZ

APPELLEE

CA02-966

April 2, 2003

APPEAL FROM THE SCOTT COUNTY CIRCUIT COURT

[NO. DR 2001-184]

HON. VAN B. TAYLOR,

JUDGE

AFFIRMED

Appellant, Scott Schantz, appeals from an order of the Scott County Circuit Court granting appellee, Darline Schantz, custody of the parties' minor child. Appellant argues on appeal that the trial court erred in awarding custody of their minor child to appellee because she could not provide a wholesome and moral environment that would promote their child's health, safety, and welfare. We affirm.

In cases involving child custody and related matters, we review the case de novo, but we do not reverse the findings of the trial court unless it is shown that they are clearly erroneous or clearly against the preponderance of the evidence. Deluca v. Stapleton, 79 Ark. App. 138, 84 S.W.3d 892 (2002). 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. Buckley v. Buckley, 73 Ark. App. 410, 43 S.W.3d 212

(2001). In child custody cases, we give special deference to the superior position of the trial judge to evaluate the witnesses, their testimony, and the child's best interest. Thompson v. Thompson, 63 Ark. App. 89, 974 S.W.2d 494 (1998). In fact, we have often recognized that there is no case in which greater deference should be given to the trial court's position, ability, and opportunity to see and evaluate the evidence than those involving the welfare of minor children. Hickman v. Culberson, 78 Ark. App. 96, 78 S.W.3d 738 (2002).

In the case now before us, there was testimony that appellee smoked marijuana two or more times a week and that the minor child was in a different room of the house when this occurred. The appellee lived with a man not her husband. This man, a bail bondsman, was also appellee's boss and she would often accompany him on "bail jumps" while the child was left with a babysitter. Finally, there was testimony that there were guns and knives present in the home where the child lived. On the other hand, there was testimony that appellant had used methamphetamine in the past; that he was an alcoholic; that he had been convicted of public drunkenness and driving while under the influence of alcohol; that he had been in rehabilitation treatment for alcohol abuse; and that he was on probation until October 2004 in the state of California. In addition, there was testimony by appellant's sister to the effect that she thought both appellant and appellee were basically good parents.

Personal observation is of great value to a court that is called upon to choose between mother and father in a custody case. See Thompson, supra. There was no ideal solution available to the trial court in this case. See Eaton v. Dixon, 69 Ark. App. 9, 9 S.W.3d 535 (2000). The trial court cannot always provide flawless solutions to unsolvable problems,especially where only limited options are available. See id., citing Respalie v. Respalie, 25 Ark. App. 254, 756 S.W.2d 928 (1988). Determining the best interest of the child often turns largely upon the credibility and demeanor of the witnesses, and the trial court must utilize, to the fullest extent, all its powers of perception in evaluating the witnesses. See Thompson, supra; Turner v. Benson, 59 Ark. App. 108, 953 S.W.2d 596 (1997). Under the circumstances, we cannot say that the decision to award custody to appellee was clearly erroneous.

Affirmed.

Baker and Neal, jj., agree.