Donna G. Dobbins v. Bryan Dobbins

ca03-210

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

DONNA G. DOBBINS,

APPELLANT

v.

BRYAN DOBBINS,

APPELLEE

CA03-210

JANUARY 21, 2004

APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT,

NO. E-2001-528 (III),

HON. JIM D. SPEARS, JUDGE

AFFIRMED IN PART; REVERSED AND REMANDED IN PART

Sam Bird, Judge

In this divorce case from Sebastian County, appellant Donna Dobbins challenges the trial court's award of child custody to appellee Bryan Dobbins and the trial court's division of the couple's personal property. We affirm the custody award and most aspects of the property division. We reverse and remand that portion of the property division in which the trial court ruled that a baseball card collection was appellee's separate property.

Child Custody

Donna and Bryan Dobbins were married in 1989, and they have three minor children: Ashley, born in 1990; Aaron, born in 1993; and Amber, born in 1996. The trial court awarded custody of the children to Bryan primarily based on concerns relating to Donna's relationship with a man named Tommy Scamardo. Donna argues that she should have been awarded custody because she was the children's primary care-giver throughout the marriage; she was actively involved in their schooling and extracurricular activities and provided structure for them; the children excelled academically under her care; and the children expressed a preference to live with her. She also contends that the trial court improperly assessed fault to her for her post-separation relationship with Scamardo but did not assess fault to Bryan for his post-separation relationship with a woman named Carry Harrell.

The evidence at trial reveals that both Donna and Bryan have been caring and involved parents. Shortly after the middle child, Aaron, was born, Donna became a full-time homemaker. According to her, she picked up the children from school, helped them with their homework, and took them to their activities while Bryan worked outside the home. She also testified that she cooked the meals and did the majority of the grocery shopping and that she was a home-room mother and a "paint mom," helping out with the painting activities in her younger children's classes. The two older children have made average to above average grades in school, but the youngest, who was in kindergarten, was somewhat behind her classmates. The children were seldom absent or tardy. Donna testified that the children had a routine of doing homework after school, starting their showers at 7:45 p.m. to 8:00 p.m., and being in bed by 8:30 p.m. She also testified that she has had a close relationship with all the children and that she and Ashley, the older girl, are very close. She said that, because Ashley is twelve years old, she will need her mother to help her through the upcoming changes in her life. She further testified that all of the children were involved or planning to be involved in sports and other activities. Donna's attentiveness as a mother and her closeness to the children was corroborated by her mother and other witnesses.

Bryan testified that he has spent a lot of time with the children, giving them emotional support and providing a positive atmosphere during the separation. In the summer of 2002, he took the oldest child, Ashley, to work with him at the outdoor store of which he is part owner. She learned various computer tasks and assisted in waiting on customers. He has involved all the children in outdoor activities such as fly-fishing, hiking, and swimming, and he has supported their sporting activities. Although he has lived in the lower level of a friend's home during the separation, he stated that, if he were given custody, he would immediately rent or purchase appropriate housing. He also said that, should he be awarded custody, his parents, who are in their fifties and in good health, would be available to assist with the children.

Despite the above positive testimony, there was also negative testimony regarding Bryan and Donna. Maryann Meyerriezks, who lived next door to the couple, testified that, shortly after the separation, Bryan asked if he could use her yard to view his former residence, where he suspected that Donna was having an affair. Donna testified about an incident during the marriage when Bryan went out with friends and returned home too inebriated to walk without assistance. She also said that Bryan watched pornographic films and subscribed to pornographic magazines, although she introduced no evidence of this other than two catalogs used for ordering such materials. She also said that Bryan was "obsessed with the idea of swinging" and was "getting on the internet going to swingers chatrooms and trying to find couples close by to do this type thing with."

Bryan testified that Donna had a drinking problem and was a daily marijuana user. He said that Donna would leave the children with her mother "a tremendous amount of time." A neighbor, Carla Nuckles, testified that, during the summer of 2000, Donna would drop the children off at Carla's house on the days Carla was off work (three days a week) and that Donna would be away four to eight hours without checking in. On a few occasions, Donna merely dropped the children off at Carla's house and left them to knock on her door without having made prior arrangements for the visit. However, the one factor by far that, in the mind of the trial court, cast the most negative light on Donna was her relationship with Tommy Scamardo.

Donna began seeing Scamardo in the spring or summer of 2001. She and the children spent time with him and his two sons, age eight and ten, on a regular basis. One of the boys played baseball in a church baseball league with the parties' son, Aaron. The league commissioner, Bodie Hickey, testified that, in the summer of 2002, he had a confrontation with Donna and Scamardo during which they both cursed at him using, as he described it, the "F" word, within earshot of team members and parents. According to Hickey, Scamardo was asked to leave the ball park. Hickey also said that, on several occasions, he had detected the odor of alcohol on Donna and Scamardo after ball games. Further, he testified regarding an incident in June of 2001 when Scamardo called him at 9:00 p.m. and asked if he could park his truck in Hickey's driveway, which was located three houses over from Donna's, and walk through Hickey's backyard to spend the night with Donna. When Hickey said no, Scamardo, while drinking, telephoned Hickey several times, calling him names and berating him for his refusal.

Another witness, Joanna May, a neighbor of Scamardo, testified that she had been around Donna and Scamardo with the children several times. She said that Scamardo drank every day and Donna drank almost every day and in the presence of the children. She said that Donna and Scamardo would rebuke the children with cursing and hateful language: "they would say fucking car or goddam car or get your ass back in the goddam house or, you know, it was always just this hateful tone of voice ... tons of cussing." May described the situation as "not a loving situation" and "not a happy situation." She also testified about a particularly disturbing incident in which Donna and Scamardo tried to encourage Ashley and May's nine-year-old son to hold hands and kiss.

Bryan testified regarding an incident that occurred during the separation when he drove to the marital residence to pick up some clothes and sporting equipment for the children. As he and the children sat in the car, Scamardo told him, "If you ever ... come back to this house, I'm going to have you thrown in jail. Do you understand me?" Scamardo also told Bryan that he had family in the police department and that he could "take care" of Bryan. These incidents were either denied by Donna or described by her in a different manner.

Before the trial was held, the trial court appointed Paul Post as guardian ad litem for the children. Between January and June of 2002, Post conducted several interviews with the parties and with the children. In his report, he expressed concern about "Ms. Dobbins's decision to interject Tommy Scamardo into this matter." He stated that Ashley and Aaron said that they did not like Scamardo, that he was "mean and cusse[d] a lot," and that he smoked around them. They said he was present almost every day when they were with their mother, and they also said that, when they told their mother they did not like Scamardo, she told Scamardo, and he took them into the garage and questioned them about why they did not like him. The ad litem recommended that custody be placed with Bryan.

Just prior to trial, on July 15, 2002, the court interviewed the three children with the parents not present. During this interview, Ashley and Aaron told the court that they would prefer to live with their mother and that they thought Scamardo was "nice." They said they had told their mother they did not like Scamardo but that was before they really knew him. They admitted that he was sometimes like the man they had previously described as "mean" and "cussing a lot" and that he drank now and then. Additionally, Ashley said that Scamardo frequently directed the "F" word and similar language toward the children. Nevertheless, they expressed a preference to stay with their mother.

Following a three-day trial, the court sent a letter ruling to the parties, which contained the following ruling on the custody issue:

This is the overriding issue in this divorce. It is a difficult question with which the court has to deal. There is little doubt that each parent is a good parent and can provide for the children. In fact there is testimony that each parent has been involved in the children's lives and that the children love their parents very much. There has been testimony that each parent has been involved in conduct during the divorce that would not be conducive to good parenting and good examples for the children .... The court appointed Mr. Paul Post, a local attorney for whom the court has a great deal of respect, to serve as guardian ad litem for the children. Mr. Post reported to the court his concerns in regard to Mrs. Dobbins's boyfriend Tommy Scamardo. According to Mr. Post, the children do not like Mr. Scamardo and complained that he was mean and cussed a lot. They told Mr. Post that they have told their mother this. In the face of this custody dispute and the children's complaints she has maintained her relationship with Mr. Scamardo. This causes the court some concern as to her judgment. There was also testimony that Mrs. Dobbins and Mr. Scamardo have become loud and abusive at Church League ball parks and that they were asked to leave and not come back. There was also the allegation that they had been drinking. There was testimony that Mr. Scamardo has been confrontational with Mr. Dobbins in the presence of his children. This was corroborated by independent witnesses but was contradicted by others. Mr. Post, as the guardian ad litem, recommended that custody be placed with the father. This was in large part because of Mr. Scamardo. The children, in conference with the court and in the presence of the attorneys for the parties, expressed a desire to stay with the mother. Ashley, the oldest, when asked why she had that preference, stated that she was getting to the age when she would need a woman's advice and that her mother cooked the right kind of food for them. This seemed to the court to be a coached response. These children have really been torn and pressured by the parties. For this reason, the court feels that the interview with the guardian ad litem is of more value than the court's interview with the children. Mainly because of the presence of Mr. Scamardo in the situation and the recommendation of the guardian ad litem, the court is awarding custody of the minor children to the father Mr. Dobbins subject to the standard order of visitation and medical care.

On October 14, 2002, a decree was entered, finding that it was in the best interest of the children that custody be awarded to Bryan. Following the court's denial of Donna's motion for a new trial, she filed a timely notice of appeal.

The primary consideration in child-custody cases is the welfare and best interest of the children; all other considerations are secondary. Taylor v. Taylor, 353 Ark. 69, 110 S.W.3d 731 (2003). We review the evidence in child-custody cases de novo, but we will not reverse the findings of the court unless it is shown that they are clearly contrary to the preponderance of the evidence. Mason v. Mason, 82 Ark. App. 133, 111 S.W.3d 855 (2003). We also give special deference to the superior position of the trial court to evaluate and judge the credibility of the witnesses in child-custody cases. Id. 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. Id. 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. Id.

We hold that the trial court's award of custody to Bryan was not clearly erroneous. The fact that a parent has been a child's primary caretaker over the years is a factor that a court may take into consideration in a custody determination, but it is not in itself determinative in awarding custody. See Thompson v. Thompson, 63 Ark. App. 89, 974 S.W.2d 494 (1998). In any event, while Donna, as a full-time homemaker, had the majority of the day-to-day responsibility and interaction with the children, Bryan was also active in the children's lives and capable of caring for them. As for the children's preference to live with their mother, their preference is to be considered by the court but is not binding on the court. Campbell v. Campbell, 336 Ark. 379, 985 S.W.2d 724 (1999); Hepp v. Hepp, 61 Ark. App. 240, 968 S.W.2d 62 (1998). Further, the court was of the opinion that the children's expression of that preference was "coached." As stated earlier, the appellate courts give due deference to the superior position of the trial judge to view and judge the credibility of the witnesses. Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d 520 (1999). This deference is even greater in cases involving child custody, as a heavier burden is placed on the trial judge to utilize to the fullest extent his or her powers of perception in evaluating the witnesses, their testimony, and the best interest of the children. Id.

The primary basis for the court's award of custody to Bryan was Donna's relationship with Scamardo. Donna argues that the court's ruling employs a double standard, i.e., punishes her for the fact that she was having a dating relationship while not similarly considering that Bryan was also involved in a dating relationship. This is a mis-characterization of the trial court's ruling. The court was not concerned with the fact that Donna was having a relationship but with her choice of companion. The record is replete with evidence, some of it contradicted, that Scamardo was a habitual drinker, was around the children almost every day, directed extremely foul language toward the children, had berated and cursed other persons, and had threatened Bryan in the children's presence. In custody cases, we have considered it a relevant factor when a parent allows a person of questionable reputation and character to be around his or her children. See Stone v. Steed, 54 Ark. App. 11, 923 S.W.2d 282 (1996) (holding that custody was properly awarded to the father where the man that the mother was living with and others who visited the home had prior misdemeanor convictions); Marsh v. Hoff, 15 Ark. App. 272, 275, 692 S.W.2d 270, 271 (1985) (considering, as a factor in not awarding custody to the father, that the father's live-in girlfriend "was dirty, cursed [the child] frequently, and threatened her on occasion").

Given the above evidence and affording due deference to the trial judge's assessment of the witnesses' credibility, we uphold the award of custody to Bryan and affirm that portion of the decree.

We turn now to the various arguments regarding the trial court's division of the couple's property. Donna contends that the trial court erred in its valuation of the parties' seven-percent stock ownership in The Woodsman Company; in its valuation of the parties' twenty-percent stock ownership in Movietown, Inc.; in finding that a baseball card collection was Bryan's non-marital property; and in ordering that items of tangible personal property other than those mentioned in the decree be sold at auction unless the parties could agree on a division.

Valuation of The Woodsman Company Stock

Bryan owned twenty-six shares of stock in the Woodsman Company, an outdoor-equipment store where he is employed. Seven of those shares were purchased during the marriage in 1999 for $7,500, and the value of those shares is at issue in this case. At trial, Donna contended that the stock should be valued at least at $7,500 for property division purposes because 1) Bryan purchased it in 1999 for $7,500; 2) Bryan had valued the twenty-six shares on a loan application at $60,000, which would correspond to $16,153 for seven shares; and 3) in 1999, Bryan's father sold fourteen shares to another man for $15,000. The trial court determined that the stock was worthless, and Donna now challenges that valuation.

Valuation for purposes of property division is not reversed unless it is clearly erroneous. Hoover v. Hoover, 70 Ark. App. 215, 16 S.W.3d 560 (2000). We defer to a trial court's determination of the credibility and weight to be given a valuation expert's testimony. See Skokos v. Skokos, 344 Ark. 420, 40 S.W.3d 768 (2001).

At trial, Kimberly O'Dell, a CPA and certified valuation analyst, testified that the seven shares were worth $1,000. She explained that the company was heavily in debt, to the extent that it had virtually no worth. Her report showed that the company's $395,976 in assets was offset by $515,475 in liabilities. Another CPA, Richard Beauchamp, who did the accounting for the company, testified that the stock had no positive value. The trial court's decision to value the stock based on the testimony of these experts rather than on the purchase price of the stock in 1999 or Bryan's estimation of its value was not clearly erroneous. The experts' opinions were based on their analyses of the company's books and on their particular expertise. Thus, we do not agree with Donna that the court's valuation of the stock was clearly erroneous.

Valuation of Shares in Movietown, Inc.

During the marriage, the parties purchased a twenty-percent ownership in Movietown, Inc., a video rental company. The trial court valued their interest at $137,000, and divided it equally between them. Donna argues that the court should have valued their interest at $150,200.

At trial, CPA Kimberley O'Dell valued the shares at $137,000; Donna's expert valued them at $150,200. The trial court chose to accept O'Dell's valuation, as it was entitled to do. Skokos v. Skokos, supra. Donna has not convinced us that the trial court should have rejected O'Dell's valuation outright. We therefore affirm on this point.

Baseball Card Collection

Bryan possessed a baseball card collection that he estimated as being worth about $15,000. He testified that the cards were collected in his childhood, with the exception of a few cards that were collected early in the marriage. He said that "at least 95 percent of that collection was from when I was a kid." The trial court ruled that the collection was Bryan's separate property. Donna argues that, on the basis of Bryan's testimony, at least five percent of the collection is marital property.

Property acquired for consideration paid in part out of marital funds and in part out of separate funds is in part marital property and part separate property. See Potter v. Potter, 280 Ark. 38, 655 S.W.2d 382 (1983); Wright v. Wright, 29 Ark. App. 20, 779 S.W.2d 183 (1989). According to Bryan's testimony, at least a few cards were purchased during the marriage. The evidence does not reveal the value of these particular cards; as a result, we do not know if they form a large or a de minimus portion of the collection's overall value. Therefore, we reverse and remand this portion of the decree to allow the trial court to determine what part of the collection is marital. See Thomas v. Thomas, 68 Ark. App. 196,4 S.W.3d 517 (1999) (remanding to determine what part of the increase in the value of a pension plan was marital and what part was non-marital).

Court's Order That Certain Personal Property Be Sold

An exhibit was admitted at trial that listed all the parties' tangible personal property. It contained several items under the heading "Personal Property to be awarded to [Bryan]" and several items under the heading "Marital Personal Property to be awarded to [Donna]." Beside each item was a dollar value that Donna had assigned to it and, beside that, a dollar value that Bryan had assigned to the item. On many of the items, the parties disagreed as to the values. There were also a few items on which the parties disagreed as to their marital or non-marital status.

During trial, Bryan testified as follows regarding the exhibit:

Question: Now the next segment of this personal property is property she wants to be awarded to her?

Answer: Yes, sir.

Question: And let me ask you this, Bryan: Do you have any objection to her having these items that she wants?

Answer: No, not really.

Question: All right. But you do take exception to the values of some of them. Is that correct?

Answer: I do. Yes, sir.

....

Question: At any rate, you don't have any objection to the division of the property?

Answer: I don't.

Question: But you want these values adjusted?

Answer: Absolutely. The values are wrong.

In the divorce decree, the trial court declared some of the items on the exhibit to be marital property and some non-marital; the court then ordered that all other items of tangible property not labeled in the decree as non-marital be sold at auction, unless the parties could otherwise agree on a division. Donna argues that the court should not have ordered the personal property sold because, as shown by Bryan's above-quoted testimony, the parties had agreed on a division of property.

First, we note that Bryan's testimony does not evidence an unequivocal agreement to divide the property as shown in the exhibit. He disagreed with the values assigned to several items, as did Donna. Second, a trial court is not required to accept an agreement regarding the division of marital property; the court may, in its discretion, reject the agreement and divide the property itself. See Rutherford v. Rutherford, 81 Ark. App. 122, 98 S.W.3d 842 (2003). In light of these factors, we decline to reverse the trial court on this point.

For the reasons stated, the trial court is affirmed in all aspects other than its ruling that the baseball card collection is Bryan's non-marital property. We remand in part to allow the trial court to determine what portion of the collection is marital and what portion is non-marital and, upon that determination, to effect the appropriate division.

Affirmed in part; reversed and remanded in part.

Griffen and Crabtree, JJ., agree.