Steven Harbour v. Amber HarbourAnnotate this Case
ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
JUNE 2, 2004
APPEAL FROM THE UNION COUNTY CIRCUIT COURT
[NO. DR 2002-32-6]
HON. DAVID F. GUTHRIE,
Josephine Linker Hart, Judge
Steven Harbour appeals from an order of the Union County Circuit Court denying his post-hearing motion to submit newly discovered evidence and from that portion of a divorce decree that awarded custody of the parties' minor children, Logan and Lane Harbour, to Amber Harbour, the appellee. Steven raises four arguments in support of his contention that the trial court erred in denying his request to reopen the case to allow him to submit additional evidence some six weeks after both sides had rested, but before the trial judge entered his decree. He argues that the trial judge erred because: A) there had been no final order entered at the time of the request to admit the additional evidence, so that there was no substantial prejudice to finality or judicial economy in hearing the "highly relevant" evidence that he had offered; B) the rules of civil procedure recognize that additional relevant evidence may arise after a trial, and clearly establish that it is proper to consider such evidence, if it was not available at the time of trial; C) he had a due process right to have all of the relevant evidence presented to the court for its consideration and the trial court's refusal to hear the additional "highly relevant" evidence placed administrative convenience above his right to due process; D) the trial court's refusal to hear the additional "highly relevant" evidence placed administrative convenience above the best interest of the children.
For reversal of the award of custody of the minor children to Amber, Steven argues that: A) the finding that Amber was the primary caregiver as a reason for justifying the award of custody to her was contradictory to and defeated by the other reasons given by the trial court to justify the award of custody; B) the evidence showed that the presumption of the primary caregiver doctrine, as applied to Amber in this matter, was rebutted; C) the trial court relied on two erroneous findings of fact in its final decree; D) the finding that Amber was the primary caregiver, as a reason for justifying the award of custody to her was, in essence, an improper application of the now overruled tender years doctrine; E) the trial court failed to consider that it was Amber who originally abandoned the children and failed to address the issue of continuity in its decree, and thus it was against the best interests of the children to award custody of the children to Amber; F) the trial court's use of financial resources as a basis for determining the custody of the children was erroneous as his financial resources were greater than Amber's; G) the trial court specified no basis for its conclusion that he was less credible than Amber; H) the trial court failed to make any findings concerning the credibility of the other witnesses; I) the award of custody of the children to Amber was against the best interests of the children as Amber was living with a man in an unmarried state; J) the award of custody to Amber was clearly erroneous and against the best interests of the children, as the trial court failed to consider the strong psychological relationship between the father and the children. We affirm.
Steven and Amber were married on December 16, 1995. Two children were born of the marriage: Logan and Lane. At the time of the final-merits hearing, they were four and one-and-a-half years old, respectively. On January 8, 2002, Amber left the marital home after a birthday party that the Harbours hosted for James Bishop, where Steven engaged in behavior that may fairly be characterized as humiliating for Amber. Three days later, Steven filed an ex parte petition for legal separation, and, based on an assertion that Amber was a risk to remove the children from the jurisdiction, obtained temporary custody of the children. An order entered on March 27, 2002, dissolved the ex parte order, and Amber was awarded temporary custody. Amber filed a counterclaim for divorce and sought permanent custody.
At the start of what was to be a two-day trial on the issue of custody, Steven dismissed his petition for legal separation, giving Amber the burden of going forward on the divorce. The first witness to testify was Veronica Harper, assistant preschool ministry director at the Westside Baptist Church in El Dorado. She stated that she personally knew both parties and thought they were "a perfect family." Harper noted that Steven would stay and help with the children during preschool ministry. She also testified that on New Year's Eve, prior to the separation, she had seen Amber and James Bishop at a club dancing very close, fondling each other, and kissing.
Amber called Steven in her case-in-chief. He testified that, since January, he had been employed with an insurance company having taken the position to obtain more flexibility, which would allow him to care for the children. Steven confessed that he had left the same job three-and-a-half-years earlier because he did not make enough money. However, he blamed Amber for his failure, claiming that she did not let him work enough hours. Currently, Steven claimed that his take-home pay was $481.85 per week for March, but$182.00 in April. He admitted that his job required him to travel during the week and would require him, on occasion, to stay overnight one night a week.
Amber presented evidence that Steven had an extramarital relationship with a woman who at the time was named T. J. Swanner.1 Steven admitted that T. J. Swanner had ridden with him in his patrol car when he had worked as a Junction City police officer and that he had parked his police cruiser at Swanner's house while he was on duty. However, he denied that he had violated department rules in doing so, claimed that he and Swanner were only "friends," and postulated that his patrol car was observed at the Swanner residence because he was contacting T. J.'s then husband, who was a reserve police officer.
Amber also attempted to use Steven's testimony to defuse the effect of her extramarital activities involving one of Steven's friends, James Bishop. Steven admitted that it was possible that he asked his former close friend to take Amber out on New Year's Eve, but excused his request as concern over the fact that she drank too much, and he did not want her to drive. Regarding the January 7, 2002, birthday party, Steven admitted that he was "sloppy drunk," but claimed he did not remember trying to pull Amber's blouse down in front of other people, trying to fondle Lisa Nichols's breast, or trying to press Nichols's hand to his crotch. He did remember vomiting, but insisted that it was very unusual for him to get drunk at his house. Steven confessed that he had told a close friend, Shannon Lee, and/or James Bishop that he had contemplated suicide after Amber left. He stated that, although he did not seek professional help, the situation resolved itself.
James Bishop testified that he was formerly a friend of Steven and had accompanied him with others to clubs on three occasions. According to Bishop, Steven drank on one of those occasions. Bishop admitted to being intimate with Amber in the middle of February, but claimed the children were not present. Bishop also admitted that he spent the night at Amber's house in mid-February, but denied engaging in any immoral activity in their presence. According to Bishop, Amber had agreed to keep his children over midwinter break, because his regular babysitter was away on vacation. However, on the night in question, Bishop claimed that one of his children had an ear infection and "threw a fit" when he went to leave. He claimed that he did not sleep in the same bed with Amber and that both of his children slept with him. Regarding the New Year's Eve that he spent with Amber, Bishop admitted that he danced with Amber, but not in a way that was different from how he had danced with her when Steven was present.
Bishop confirmed that Steven had told him about contemplating suicide. Bishop also recounted the infamous birthday party and stated that he saw Steven attempt to raise Amber's shirt and heard Steven say that Amber had "nice titties." He stated that he missed seeing Steven grab Lisa Nichols's breast, but claimed that he saw Nichols swat Steven's hand away. He then saw Steven lay his head on the table and vomit.
According to Bishop, when they were still friends, Steven called him every weekend, and when he was doing things with Steven, Amber took care of the children. He also claimed that Amber was "always" in charge of the children when she was home. He admitted, however, that he did see Steven bathe the children on one occasion, "do sports and play with the children," put them to bed, make hunting outfits for them, and on one occasion attend to Logan when he bumped his head while playing on a neighbor's trampoline.
Junction City Police Chief Loyd Falcon testified that Steven left the department because of his pending divorce and his desire to spend time with his children. However, he confirmed that Steven was the subject of a report that had been forwarded to the mayor regarding dereliction of duty and dishonesty in covering up this conduct, but he refuted suggestions from Amber's trial counsel that Steven was forced to leave the department over that matter as Steven's resignation made it "moot." Chief Falcon also admitted the possibility of an innocent explanation for Steven's cruiser being parked at T. J. Swanner's house because Swanner's husband was a police officer. Chief Falcon confirmed that Steven regularly had people riding in the patrol car with him, including T. J. Swanner, but stated that it was not a violation of department policy. According to Chief Falcon, Swanner's husband stopped her from riding with Steven. However, he also testified that he saw Swanner with Steven after Steven left the department.
Lisa Nichols, an acquaintance of both Amber and Steven, stated that she met Amber through James Bishop, because she babysat Bishop's children. She admitted that she and Amber were good friends, and recently, she had seen Amber often. Nichols testified that her one and only visit to the Harbour house was on the night of the infamous birthday party. She stated that the men, including Bishop and Steven, were drunk. She confirmed that Steven grabbed her breast, tried to force her hand into his crotch, and "kept messing" with Amber's breasts. Nichols also confirmed that Steven vomited and that Amber had to clean him up. Nichols claimed that she saw Steven drinking on one other night and on that occasion Steven tried to kiss her. According to Nichols, Amber just told her on that occasion not to worry about it because "he does that to everybody." Nichols stated that Amber was almost always with the children and put the children to bed the night of the party.
Lance Swearengin, a longtime friend of Steven, who was also dating Lisa Nichols, claimed that he was a "drinking buddy" of Steven and James "Bull" Bishop. He stated that he was at the January 7 birthday party. According to Swearengin, when Steven drinks, he gets "wild and flirty" with other women. He claimed he saw Steven try to pull Amber's shirtup to "show her titties." Swearengin admitted that except for two times, Amber was present when Steven went clubbing.
Kathy Goode testified that she was the caretaker for the children between 7:00 a.m. and 5:00 p.m. after March 25, 2002, when Amber began to work. According to Goode, when Amber could not pick up the children, Amber's mother did, and the children were always brought to her "clean, happy, and with the needed supplies to care for them." She noted that when she observed Amber with her children, Lane was "clingy." Goode stated that she charged $125 each week to care for the children. She conducted her daycare in her mobile home, where she lived with her children.
Cindy Neal, Amber's mother, testified that she was a frequent visitor to the Harbour home and that never saw Steven prepare meals, but did see him play with the children. Neal claimed she supported Amber and the children after the separation and was currently paying for the mobile home in which they resided. She stated that she saw Steven drink on the weekends and that he did "not always go to church with Amber and the children." Neal said there is "no down side to my daughter," that she kept an immaculate house and took care of the children. She asserted that the children loved their mother very much and that Amber fed them, bathed them, played with them, and put them to bed. According to Neal, Steven could not provide for the family and she helped them financially, and Steven was responsible for Amber staying home with the children. She also claimed that she had "counseled" Steven on his drinking.
Amber concluded her case-in-chief with her own testimony. She stated her life with Steven was "intolerable." She claimed that she quit work at Steven's insistence, well before she had the children, and that she was currently employed at BancCorp South where her take-home pay was $213.79 per week. She recounted that Steven had several jobs in the course of the marriage and that her mother had helped them financially. According to Amber, although Steven had "started to learn about taking care of the children," and he did occasionally help, she took care of the children "most of the time." She admitted, however, that the reason Steven did not help more was that he was at work. Amber also admitted that she had "no problems" with Steven as a father and judged the relative contribution of her and Steven in regard to child care to be 75/25.
Amber confirmed the sordid details about the January 7 birthday party. She conceded that Steven did not drink daily or even every weekend, but when he did drink, he got drunk. Amber admitted that she went to clubs without Steven, and that she entertained Bishop overnight with the children present, but denied that she and Bishop slept together. She also denied that she and Bishop "fondled" each other when they were dancing.
Amber described Steven's father as "very dominating" and predicted that if Steven got custody, Steven's parents or sister would raise the children. She confirmed that Steven's extended family lived nearby and that the Harbours were very involved in the children's lives. According to Amber, the Harbour grandparents contacted them daily, would bring the children snacks, play with them, and take them to Bible study, and that the children would visit the Harbour grandparents "at least every other day." She confirmed that she could not care for the children while she was working and that child care cost her $100 per week. She stated that she "had a problem" with Steven's mother taking care of the children.
Amber testified that Steven told her that he was contemplating suicide after the separation. She also claimed that Steven "flipped her off" when he would pick up the children. Amber stated that her behavior was better than Steven's when she drank. She, however, testified that she stopped attending Bible study and singing in the choir after she separated from Steven.
Ricky Bever, Amber's father, testified that Amber would visit without the children and Steven would care for them in her absence. When he visited the Harbour home, Bever noted that he saw both Steven and Amber caring for the children, with Steven changing diapers "most of the time," and Steven playing with the children "every time." Bever thought Steven would be the better parent. He also stated that his ex-wife, Cindy Neal, was a bad influence on Amber. Bever stated that Neal had committed adultery when he was married to her, and Amber's affair with James Bishop concerned him as a "moral problem." Bever claimed he never saw Steven drink alcohol. However, on cross examination, he stated that if Steven had exhibited the conduct that was attributed to him at the January 7 birthday party, he would conclude that Amber should have custody.
Union County Deputy Sheriff Brandon Brumbley testified that he knew Amber, Steven, and Bishop. On the night of the police academy graduation, he observed Steven drinking only bottled water while Amber was drinking alcohol and Cindy Neal got intoxicated. Brumbley also claimed he spoke to Amber about her "closeness" with Bishop and she claimed that Steven did not care. Donnie Thurman, also a Union County Deputy Sheriff, testified that he saw James Bishop's car outside Amber's residence at night on three of four occasions in the previous six months, but also admitted that he did not know if Amber was present.
Steven's sister, Lisa Craig, testified that she had seen Steven caring for the children and tending to their needs including feeding, changing their diapers, and disciplining them. She stated that when Steven was not working, he was with the children. Craig also related that when Steven came home from work, Amber stated that it was her turn for time off as she had cared for the children during the day. Craig opined that the children would be better off with Steven because he was the one who took care of them most of the time. Craig admitted that she was not present all the time, but stated that she did visit almost daily. She also testified that she would be willing to keep the children while Steven was at work if he got custody.
Rebecca Wagnon, who worked in the parties' Sunday School, testified that she observed Steven help with the other children in Sunday school. She also stated that she noticed a change in Logan when custody was changed from Steven to Amber in that Logan became more quiet and did not interact with the other children as well. Wagnon described the children as smart and well-mannered and concluded that they had been well raised. She, however, admitted that she did not know who raised the children.
Shannon Lee, Steven's friend, testified that three or so years earlier he had lived with Steven and Amber for about six months, when Logan was an infant. Lee stated that Steven was equally involved in the day-to-day aspects of child care, and he observed Steven feeding, bathing, and putting Logan to bed. He also testified that in the six months prior to the parties' separation, he was a frequent visitor in the Harbours' home and that Steven continued to help care for the children. Lee indicated that Steven willingly accepted childcare tasks while Amber regarded such tasks as a "chore."
Laura Jones, Steven's cousin who lived one house away, testified that she visited the home one or two days a week. She characterized Amber as short-tempered with the children. She also stated that she observed Steven care for the children, feeding, bathing, and playing with them. According to Jones, when Steven was at home, he "always" had the children with him.
Brian Craig, a patrolman with the El Dorado Police Department and who was also married to Steven's sister Lisa Craig, testified that he would visit Steven about two or three times a week. He stated that every time he saw Steven outside, Steven at least had Logan with him, and sometimes Lane as well. Craig said that he observed Steven and Amber at family gatherings and that Steven usually tended to the children's needs. Craig also testified that he and Steven had previously worked together selling health insurance and that although Steven was more successful than he, neither of them made much money.
Wanda Harbour, Steven's mother, testified that she lived just across Loftin Road from Steven and Amber. She stated that her maiden name was Loftin and most of the neighbors were related. Wanda stated that Amber had told her that she did not want to follow Cindy Neal's lifestyle of drinking and clubbing, but now Amber was indeed doing that very thing. Concerning care for the children, Wanda testified that both Steve and Amber seemed to share the activities like feeding, changing, dressing, and bathing them. However, she only observed Steven taking the children outside because Amber was not an "outdoorsy kind of person." Wanda stated that she believed that it would be in the best interest of the children for them to be placed with Steven because otherwise, there would be no "male figure" in the family. She also opined that Steven enjoyed being with the children more than Amber did.
Randy Harbour, Steven's father, testified that he was regional manager for the health insurance company where Steven was currently working. He stated that Steven, as part of his job, would travel throughout the state, except for the northwest corner around Fort Smith. According to Randy, Steven was not required to spend the night away from home, but sometimes, depending on the calls he made, he did so. Randy also confirmed that Steven had previously worked for his company and had resigned because he was not making enough money. Randy stated that Steven came back because "he wanted to be with his boys" and as a "contract employee," Steven could set his own hours. He also stated that he knew from statistical data the best days to sell insurance were Wednesdays, Tuesdays, and Thursdays. He noted that this data explained why Steven's take-home income varied from one month to the next because Amber's unilateral decision to change Steven's visitation from Tuesday to Wednesday deprived him of the opportunity to go out of town on the "best day of the sales week." Regarding care of the children, Randy stated that both Amber and Steven shared responsibilities, but he personally saw Steven change, cook for, feed, bathe, discipline, play with, pray with, make clothing for, and brush the teeth of the children.
Terry Jo Brown, who had previously been referred to as T. J. Swanner, testified unequivocally that she had never had sex with Steven. She did, however, admit that she did kiss Steven "several" times, that Steven visited her home while she was still married and her husband Jimmy Swanner was not present, and that she was "interested" in Steven. Nonetheless, she only characterized their relationship as friendship.
Steven testified in his case-in-chief that he had a well-furnished residence for his children to live in. He stated that he believed that it would be in the children's best interest for him to have custody because Amber had not bonded with the boys like he had. Steven admitted that Amber loved the children, but he claimed that he took care of them "more than she did." He denied consuming alcohol in the presence of the children, and reiterated that he could not recall raising Amber's blouse at the January 7 birthday party. Steven did, however, admit that if he did become so intoxicated that he vomited and attempted to expose Amber's breasts, it was not "appropriate" conduct. When Steven was questioned about only allowing Amber to have one night per week visitation when he had temporary custody, he replied, "I do know for a fact that James Bishop was spending the night at that house and that is the reason why. I didn't want my kids in that atmosphere." Steven asserted that he had pictures of James Bishop's truck parked behind the house next to Amber's car; however, he admitted that they were taken by his father and they were never admitted into evidence.
The hearing concluded on May 30, 2002. The trial judge ordered the parties to submit briefs in lieu of closing arguments. Briefing was completed on July 11, 2002, the date Steven submitted his reply brief. On July 18, 2002, Steven filed a motion seeking permission of the court to submit a videotape purportedly obtained after the close of evidence that he believed would prove that Amber and James Bishop were living together in the presence of the parties' minor children. On August 6, 2002, the trial judge denied the motion and in his order found that admission of the videotape would "require another hearing to allow movant to be cross-examined about the video" and that "the hearing would constitute a piecemeal approach to the introduction of evidence and is inconsistent with judicial economy and the need for finality in judicial proceedings."
Following the trial judge's entry of a letter ruling on August 27, 2002, the final decree was entered on November 5, 2002. It granted Amber a divorce on the ground of personal indignities and awarded custody to Amber. The trial judge made several findings of fact. He found that Amber was the primary care giver for the children, although Steven "helped" with the care of the children and spent time with them as "an involved father should." He also found that Amber had re-entered the workforce and had regular hours and a steady paycheck and with the marital mobile home moved onto the lot next to Amber's mother, the children will be able to remain in the home that they have known. The order acknowledged that Steven had changed jobs "again," which was an "improvement" over night shift work, but the income was not steady and the job entailed traveling across the state during the week. The trial court specifically found Amber "has greater credibility in general on all issues." He also found that both parties had "third party relationships," that Amber "became intimate" with James Bishop "only after the separation caused by the inappropriate behavior of Steven." The trial judge specifically found that neither Steven's relationship with T. J. Brown nor Amber's "intimacy" with Bishop was "in the presence of the children."
I. Whether the Trial Court's Order Denying Steven's Request to Submit Additional Highly Relevant Evidence was Erroneous.
Steven first argues that because a final order had not been entered at the time of his request, there would have been no improper prejudice to the opposing party and no substantial prejudice to finality or judicial economy to have heard the "highly relevant" evidence offered. Steven cites Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d 520 (1999), for the proposition that the tape was highly relevant because it demonstrated that Amber was living with James Bishop, "in the presence of the children in an unmarried state," and that evidence would "contradict and undermine" Amber's testimony and show that the best interest of the children would not be served by granting custody to her. This argument is unpersuasive.
In a non-jury trial the latitude of the court's discretion to hear further evidence when the court has the case under submission after trial but before any judgment has been entered is quite broad. Pulaski County v. Horton, 224 Ark. 864, 276 S.W.2d 706 (1955). We will not reverse an order denying a motion to reopen the evidence absent a manifest abuse of discretion. Sanders v. Jackson, 252 Ark. 1109, 482 S.W.2d 621 (1972).
We cannot find a manifest abuse of discretion in the trial judge's refusal to reopen the evidence in this case. The fact that Amber was engaged in an extramarital sexual relationship with James Bishop was clearly established in the hearing; indeed Amber admitted it. Further, it was beyond dispute that Bishop had spent the night in her house on at least one occasion. Ultimately, however, that conduct was found by the trial court to be of no moment, in no small part because the trial judge found that Steven had engaged in his own extramarital indiscretions. Moreover, it is apparent to us that the videotape that Steven sought to have admitted would merely be cumulative to other evidence, including Steven's own testimony, regarding Amber's relationship with Bishop in the presence of the minor children. Accordingly, we believe this situation is analogous to Lawson v. Lawson, 226 Ark. 643, 291 S.W.2d 518(1956)(holding that where the proof sought to be admitted was merely cumulative, no abuse of discretion can be found in a trial court's decision not to reopen the evidence after the case was submitted), and therefore the trial court's decision not to reopen the evidence cannot be held to be an abuse of discretion. As a final note, we observe that the supreme court held in Guyot v. Fletcher, 219 Ark. 561, 243 S.W.2d 639 (1951), that denying a motion to reopen the evidence that alleged newly discovered evidence, which went largely to issue of credibility and would probably not have affected results in the case, was not an abuse of discretion. We apply the same reasoning in the instant case and similarly find no abuse of discretion.
Steven next argues that the rules of civil procedure recognize that additional relevant evidence may arise after a trial and that the rules clearly allow that it is proper to consider such evidence, if it was not available at the time of trial. He states that Rule 59 and Rule 60 of the Arkansas Rules of Civil Procedure provide for the setting aside of a judgment on the grounds of newly discovered evidence, and while he acknowledges that those rules do not address the current situation because no judgment had actually been entered, he nonetheless asserts that these rules should suggest to us that a "lesser standard" should have been applied when considering his request to reopen the evidence. Further, citing H & M Realty Co. v. Union Mechanical Corp., 268 Ark. 592, 595 S.W.2d 521 (Ark. App. 1980), Steven argues that the court of appeals has held that it may be an abuse of discretion for a trial court to refuse to reopen a matter and accept new evidence where the moving party acted in good faith and there is no prejudice to the opposing party. He contends that the new evidence was "highly relevant" and went to the "very heart" of the key issue in this case, i.e., what was the best interest of the children. Steven also asserts that the evidence would have directly undermined the testimony of Amber concerning her relationship with James Bishop. Finally, he contends that there is no evidence that he acted in bad faith in offering this new evidence to the court and that there would be no improper prejudice to Amber if the court had to consider the new evidence. We find this argument unpersuasive.
First, as Steven himself acknowledges, Rules 59 and 60 of the Arkansas Rules of Civil Procedure have no bearing on his motion to reopen the evidence, and we see no need to analogize the instant situation to one where a judgment has already been rendered. Furthermore, given the exceptionally broad discretion of a trial court to reopen the evidence in a non-jury setting, see Midwest Lime Co. v. Independence County Chancery Court, 261 Ark. 695, 551 S.W.2d 537 (1977), we are of the mind that the "lesser standard" that Steven advocates is already in existence. In Midwest Lime Co., the supreme court stated:
A chancellor has the power to allow defects in proof to be supplied at any time. Such action is in his discretion and is not subject to review here except where his action is arbitrary, and the rights of some of the parties are improperly affected. When, in the judgment of the chancellor, the ends of justice will be served, this Court has said that it is his plain duty to allow further proof to come in.
Id. at 706, 551 S.W.2d at 542. Regarding the balance of Steven's argument under this point, we believe that Steven is simply restating his first point under this section, and we do not believe that it is any more meritorious in its restatement.
Steven next argues that he has a due process right to have all the relevant evidence presented to the court for its consideration, and the trial court's refusal to hear the additional "highly relevant" evidence placed administrative convenience above the father's right to due process. We do not reach this argument as it was not raised below. Failure to raise the challenge below is fatal to the appellate court's consideration of it on appeal. Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992). Even constitutional issues will not be considered when raised for the first time on appeal. Id.
Finally, Steven argues that the trial court's refusal to hear the additional "highly relevant" evidence placed administrative convenience above the best interest of the children. We believe this argument inaccurately characterizes the trial court's motivation and reasoning in this matter. The evidence had been closed for more than six weeks when Steven filed his motion. As noted previously, the evidence he sought to introduce was essentially cumulative of other proof. Accordingly, we hold that the trial judge did not abuse his discretion in refusing to reopen the evidence.
II. Whether the Decree Awarding Custody of the Children to Amber was Erroneous
Because Steven raises numerous points under this rubric, we will first state the standard of review that we will use in considering his arguments. In reviewing a circuit court exercising its equity jurisdiction, we consider the evidence de novo, but will not reverse a trial judge's findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767 (1996). We give due deference to the superior position of the trial judge to view and judge the credibility of the witnesses. Noland v. Noland, 330 Ark. 660, 956 S.W.2d 173 (1997). This deference to the trial judge 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. Anderson v. Anderson, 18 Ark. App. 284, 715 S.W.2d 218 (1986).
Steven first argues that the finding that Amber was the primary caregiver as a reason for justifying the award of custody to the mother was contradictory to and defeated by the other reasons given by the trial court to justify the award of custody. He contends that the subsequent finding that Amber had re-entered the workforce was inconsistent with the justification afforded by the primary caregiver finding in that if she is working full time, she can no longer be the primary caregiver. We disagree.
In the first place, we do not consider the roles of primary caregiver and working parent to necessarily be mutually exclusive, and we do not believe that the trial court's findings suggest that the trial judge harbored such an interpretation. Secondly, we believe that this argument founders on a fundamental misinterpretation of the nature of findings of fact. All findings of fact are necessarily historical in nature. In deciding the weighty issue of custody, a trial judge does not have a crystal ball with which he can gaze into the future. He or she has only the evidence of the parents' past performance as a guide to predict future performance as a single parent.
Although Steven was shown to be an attentive and loving parent, it was also demonstrated that Amber spent the majority of the time with the children and was the primary caregiver of the children. This finding by the trial judge is not clearly against the preponderance of the evidence and is properly made in this case. As Steven himself notes, 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 Milum v. Milum, 49 Ark. App. 3, 894 S.W.2d 611 (1995). We hold that the trial judge gave due consideration of this fact.
Of course, it almost goes without saying that it is physically impossible for a single working mother to devote the same number of hours to her children as she was able to when she did not work outside the home. It also is a given in this case that both Amber and Steven will have to work outside the home, no matter who was awarded custody. We believe that it was for this reason that the trial judge made the second finding regarding Amber's employment, particularly in regard to steady hours. While Steven and his father Randy Harbour testified that Steven had a "flexible" work schedule, there was also ample testimony from Steven, Amber, and Jerry Craig that failure to put enough hours into the job had previously resulted in his inability to make a living. It was also proven that Steven's job involved traveling widely across the State of Arkansas and that he would be out-of-town at least one day per week. This finding was not clearly against the preponderance of the evidence, and it was a proper consideration of the trial judge in this case.
Steven next argues that the evidence showed that the presumption of the primary caregiver doctrine, as applied to the mother in this matter was rebutted, primarily because Amber "abandoned the children." We disagree that Steven proved that Amber "abandoned" the children. Also, pursuant to a hearing on temporary custody, the trial court made no finding that Amber abandoned the children and restored custody to Amber. Moreover, contrary to Steven's representations to the trial court in his ex parte motion for custody, Amber had not left the jurisdiction, nor even intend to, and did she did not manifest an intention to abandon her children. Indeed, there was testimony from Steven himself that he attempted to keep Amber away from the children when he had temporary custody, ostensibly because he disapproved of Amber's relationship with James Bishop. We believe that a fair reading of the evidence was that Amber fled a particularly humiliating situation orchestrated by Steven. Under those circumstances, we cannot agree that Steven presented sufficient evidence to rebut the primary caregiver doctrine. Lastly, and most importantly, we do not believe that the trial judge made his custody determination based solely on his finding that Amber was the primary caregiver, so whether or not it was "rebutted" as Steven suggests is of no moment.
Steven next argues that the trial court relied on two erroneous findings of fact in its final decree: that Steven had an affair during the marriage and that Amber left the workforce to be a "stay-at-home mom." We disagree that these findings are clearly against the preponderance of the evidence. Despite denials by Steven and T. J. Brown that they were having an affair, there was proof that Steven carried a picture of Brown in his patrol car, Steven's patrol car was observed at Brown's residence, Brown was observed riding with Steven while he was on duty, and that Steven admitted to kissing Brown on numerous occasions. Moreover, because the trial judge specifically found Steven not to be credible regarding his behavior, his self-serving denials count for naught. Accordingly, we cannot conclude that the finding regarding the affair was clearly against the preponderance of the evidence.
As far as Steven's contention that the finding concerning Amber's status as a "stay at home mom," we find his argument that it was erroneous to be of no consequence. Regardless of when she left the workforce, for most of the marriage, and at all times relevant to the question of custody, she did serve as a stay-at-home mom. Accordingly, we find no reversible error in the trial court's findings.
Steven next argues that the finding that Amber was the primary caregiver, as a reason for justifying the award of custody to the mother was, in essence, an improper application of the now overruled tender-years doctrine. We disagree. This same argument was made, and rejected, in Milum v. Milum, supra. We find the instant case distinguishable only in that the record for supporting such a contention is even less compelling here. Steven directs us to no evidence in the record, except for his spurious contention that Amber abandoned the children, to suggest that the trial judge resorted to the now abandoned tender-years doctrine.
Steven next argues that because the trial court failed to consider that it was Amber who originally abandoned the children and failed to address the issue of continuity in its decree, it was against the best interests of the children to award custody of the children to Amber. We disagree. Because there is compelling evidence in the record that Amber fled the humiliation that Steven subjected her to at the infamous birthday party, we reject Steven's bald assertion that the trial court erred in failing to interpret her actions as abandoning her children. In light of the amount of testimony that was devoted to that event, we cannot conclude that the trial court did not properly consider the relevance of and the motivation for Amber's flight from the marital home.
Steven next argues that the trial court's use of financial resources as a basis for determining the custody of the children was erroneous, as his financial resources were greater than Amber's. He asserts that the trial court's finding that Amber's income was steady and his "unsteady," which was one justification for awarding custody to Amber, was erroneous because the relative financial condition of the parties weighed in his favor. Steven asserts that the facts showed that Amber's take-home pay was $213 per week and, even taking into account the fluctuations in his income, his take home pay was found to be $398 per week. He contends that "if anything" this factor supported an award of custody to him. We disagree.
In the letter ruling, the judge stated: "Amber Harbour has reentered the work force as a bank teller with regular hours and a steady paycheck. . . . Steven Harbour has changed jobs again and returned to the insurance business with his father and his brother-in-law. Although this is an improvement over night shift work, the income is not steady and he will be traveling across the state during the week." We believe that the trial court's findings are factual in nature and well-supported by the evidence. In particular, Steven's income-earning potential as an insurance agent was the subject of a portion of the testimony of several witnesses. Steven himself stated that the amount he was likely to earn could vary significantly from week to week, and his support affidavit substantiated his testimony. Additionally, both Steven and his brother-in-law Jerry Craig testified that Steven's first attempt at selling insurance resulted in his not being able to support his family. Additionally, we note that in the course of the marriage, Steven had changed jobs several times, which would support a reasonable inference that his employment was less than steady. Furthermore, the testimony of Steven, Craig, and Steven's father Randy Harbour was consistent in its proof that Steven would have to travel across the state to visit "leads." Accordingly, we cannot conclude that the trial judge erred in his findings or in determining that Amber's employment situation was more stable.
Steven next argues that the trial court specified no basis for its conclusion that he was less credible than Amber. He suggests that the trial judge's finding was not supported and should be reversed on appeal. Finally, he also asserts that the so-called new evidence that he attempted to submit some six weeks after the parties had rested would have undermined Amber's credibility. This argument is without merit.
It is well-settled law that we defer to the trial court on issues of credibility in child custody cases. Anderson v. Anderson, supra. This deference is not lightly bestowed. We recognize that the trial judge is in a superior position to observe the witnesses and gauge their demeanor. Skokos v. Skokos, 332 Ark. 520, 968 S.W.2d 26 (1998). We assume that a credibility determination by a trial judge sitting as the finder of fact in a child custody case necessarily flows from his or her observations of the witnesses, and therefore, we do not require formal findings on the issue of credibility. It is therefore not remarkable that Steven has not supported with authority his contention that the trial judge was required to state his basis for the determination that he was less credible than Amber, and we are aware of no such requirement. For this reason alone, we could affirm the trial court on this point. Wye Community Club, Inc. v. Harmon, 26 Ark. App. 247, 764 S.W.2d 55 (1989).
However, as an additional basis for rejecting Steven's argument, based on our de novo review, we hold that there is ample basis in the record to support the trial court's finding. At the very outset of this case, Steven's credibility became suspect when he filed an ex parte motion alleging grounds that were subsequently not substantiated. Steven's credibility was further damaged by the testimony of Chief Falcon, who directly contradicted Steven's testimony concerning the incident in which he could not be located while he was on duty. Steven undoubtedly seemed less than completely candid when he conveniently claimed he could not remember his conduct toward Amber and Nichols at the infamous January 7 birthday party, even though he was able to remember a subsequent incident - his vomiting. As noted above, Steven denied having an affair with T. J. Brown, even though there was strong circumstantial evidence to the contrary. Conversely, Amber admitted that she had a sexual relationship with James Bishop, a fact that she knew would likely weigh against her in the custody determination. Accordingly we hold that the trial court was not clearly erroneous in its credibility determination.
Steven next argues that the trial court erred because it failed to make any findings concerning the credibility of the other witnesses. Without citation of authority, Steven asserts that this "raises a serious issue as to the overall validity of the trial court's final decree." He contends that the witnesses he presented created an "overwhelming" weight of the evidence in favor of finding that he should have been awarded custody of his children. As noted previously, there is no requirement for the trial judge to do so. Moreover, this argument is without merit, and because it is unsupported by authority or persuasive reasoning, we will not consider it. Thompson v. Sanford, 281 Ark. 365, 663 S.W.2d 932 (1984).
Steven next argues that the award of custody of the children to Amber was against the best interests of the children as Amber was living with a man in an unmarried state. Steven contends that his mere request to have additional proof admitted well after the close of the evidence "advised" the trial court that Amber was "cohabiting in a manner that was against the best interests of the children," which made the trial court's award of custody clearly erroneous and an abuse of discretion. We hold that this argument is contrary to an express finding by the trial judge that is not clearly against the preponderance of the evidence as it exists in the record of this case. As to Steven's contention that being "advised" by a motion of any alleged fact was in anyway binding upon a trial court, we note that he has not supported this novel proposition with authority, and therefore we will not consider it. Id.
Finally, Steven asserts that the award of custody of the children to Amber was clearly erroneous and against the best interests of the children, as the trial court failed to consider the strong psychological relationship between the father and the children. Steven cites Rector v. Rector, 58 Ark. App. 132, 947 S.W.2d 389 (1997), for the proposition that the most important factors to be considered when determining the best interests of the child are: psychological relationships, the need for stability and continuity, the past conduct of the parents and the preference of the child, and baldly asserts that the evidence clearly showed that he had a "much stronger psychological relationship" with the children than Amber did. As support for this statement, Steven merely lists page references to the transcript. This argument is without merit.
In the first place, we are unable to find that Steven even mentioned to the trial court the so-called "psychological relationships" that he now claims to have with his children, much less that he argued the children's psychological relationships with him were somehow stronger than they were with their mother. It is well settled that this court will not consider arguments raised for the first time on appeal. McWhorter v. McWhorter, 351 Ark. 622, 97 S.W.3d 408 (2003).
Griffen, J., agrees
Roaf, J., concurs
1 By the time of the hearing, Swanner was divorced and had taken back her maiden name of Brown.