Brian T. Jesson v. Barbara Lisa Jesson

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March 10, 2004


[NO. DF-2002-81-4]




John Mauzy Pittman, Judge

The parties in this child custody case were divorced by a decree entered on March 18, 2003. In the decree, the trial court awarded custody of the parties' son to appellee. For reversal, appellant contends that the trial court erred in granting custody of the child to appellee. We affirm.

We review equity cases de novo, but will only reverse if the trial court's findings were clearly erroneous or clearly against the preponderance of the evidence. Ford v. Ford, 347 Ark. 485, 65 S.W.3d 432 (2002). A finding is clearly erroneous when the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Id. We give due deference to the trial judge's superior position to determine the credibility of the witnesses and the weight to be given their testimony. Id. Since the question of the preponderance of the evidence turns largely upon the credibility of the witnesses, we defer to the superior position of the trial judge to evaluate the witnesses, their testimony, and

the child's best interest. Word v. Remick, 75 Ark. App. 390, 58 S.W.3d 422 (2001). Because there are no cases in which the superior position, ability, and opportunity of the trial judge to observe the parties carry as much weight as in those involving child custody, our deference to the trial judge is correspondingly greater in such cases. Id. The best interest of the child is of paramount importance in deciding the question of custody; all other considerations are secondary. Ford v. Ford, supra.

In the present case, there was evidence that the parties are the parents of a nine-year-old son, and that both parents were fit and capable of meeting the needs of the child. The trial court's award of custody to the appellee appears largely to have been based on evidence that appellant worked for a railroad and that his schedule required him to work from 7:00 in the evening to 7:00 in the morning four nights per week. Although appellant's parents lived across the street from him and were available to help with the child, we think the trial judge could properly have found that appellant's schedule is not an ideal one for a parent raising a nine-year-old boy, and that the child's best interest would be better served by placing him in the custody of the appellee.

Appellant also argues that there is no evidence to support the trial court's conclusion that overnight weekday visits were harmful to the child, and that we should reverse on that basis. We do not agree. There was evidence at trial to show that the child previously had difficulty completing his school work, and we think that the trial court could reasonably conclude that it is better for the child to be in the same place every school night so as not to disrupt his study habits.

Given the standard of review and the deference given to the trial judge's findings in child custody cases, we affirm the trial judge's award of custody to appellee. Nevertheless, we are concerned by evidence indicating that appellee might intend to curtail appellant's access to the child and interfere in their relationship. Although it appears that the trial judge did not give much credence to this evidence, we nevertheless note that intentional alienation of a child from the other parent is contrary to the best interest of the child and will not be tolerated. We have held that, because a caring relationship with both parents is important to a healthy upbringing, evidence that one parent is alienating a child from the other is an important factor to be considered in deciding whether custody should be changed. Carver v. May, 81 Ark. App. 292, 101 S.W.3d 256 (2003).


Gladwin and Baker, JJ., agree.