Larry Todd McLaughlin v. Danielle McLaughlin

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ca03-971

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

LARRY TODD MCLAUGHLIN

APPELLANT

V.

DANIELLE MCLAUGHLIN

APPELLEE

CA 03-971

APRIL 14, 2004

APPEAL FROM THE GREENE

COUNTY CIRCUIT COURT

[NO. E99-436]

HONORABLE WILLIAM LEE

FERGUS, JUDGE

AFFIRMED

John B. Robbins, Judge

Appellant Larry Todd McLaughlin and appellee Danielle McLaughlin were married on August 20, 1994, and were divorced on October 5, 1999. The divorce decree provided for joint custody of the parties' son, Logan, who was born on November 18, 1998. The decree named Ms. McLaughlin the primary custodian and ordered Mr. McLaughlin to pay $240.00 per month in child support, but provided that Mr. McLaughlin shall have visitation as equal to fifty-percent of the time as could be arranged between the parties.

Subsequent to the divorce, various petitions were filed by the parties regarding visitation, custody, and child support. Thereafter, on February 21, 2001, the trial court entered an agreed order. The agreed order modified the original decree and provided that the parties are entitled to joint custody, with neither party paying child support.

On October 17, 2001, Ms. McLaughlin filed a petition to modify the previous order. In her petition she asked for an award of child support, citing the fact that she had recently undergone surgery and was unemployed, and that Mr. McLaughlin's income had increased.

In Mr. McLaughlin's response, he requested that Ms. McLaughlin's petition be dismissed. In addition, Mr. McLaughlin filed a motion for modification, alleging that there had been a material change in circumstances, and asking that he be awarded full custody and Ms. McLaughlin ordered to pay child support. Ms. McLaughlin then filed an amended petition, wherein she requested full custody of the child.

A hearing was held on April 16, 2003, and on June 12, 2003, the trial court entered an order awarding custody to Ms. McLaughlin, and ordering child support. The order recites that there has been a material change in circumstances as a result of the increased age of the child and the fact that he will soon be entering public schools. Mr. McLaughlin was ordered to pay $350 per month in child support through August 1, 2004, and $480 per month thereafter. The current visitation schedule was to continue until August 1, 2004. After that date, a standard visitation schedule was to be implemented to accommodate Logan's enrollment in school.

Mr. McLaughlin now appeals from the order entered June 12, 2003. He argues that the trial court failed to consider the best interest of the child, and that the trial court erred in failing to award him custody and child support. We affirm.

A change in circumstances affecting the best interest of the child must be shown before a court may modify an order regarding child custody. Thompson v. Thompson, 63 Ark. App. 89, 974 S.W.2d 494 (1998). A heavier burden is placed on a trial judge in child-custody cases to utilize, to the fullest extent, all of his powers of perception in evaluating the witnesses, their testimony, and the child's best interests. Swadley v. Krugler, 67 Ark. App. 297, 999 S.W.2d 209 (1999). In reviewing equity cases, we consider the evidence de novo, but will not reverse a trial court's findings unless they are clearly erroneous. See Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767 (1996).

Ms. McLaughlin testified at the hearing. She stated that she is currently single and lives in a two-bedroom house in Jonesboro owned by Don Latourette. Ms. Laughlin stated that she planned to marry Mr. Latourette in September 2003. Mr. Latourette lives in a three-bedroom home in Jonesboro, and they plan to live there when they get married. Ms. McLaughlin testified that Logan has a loving relationship with Mr. Latourette.

Ms. McLaughlin stated that it will be in Logan's best interest to be in her custody on a permanent basis because the current visitation arrangement is not working well. She stated that she will soon be working a telemarketing job with flexible hours, which will allow her to care for her son. Ms. McLaughlin testified that she has custody of Logan more than half of the time under the current visitation schedule, and that they swim, play, and read books together. Ms. McLaughlin indicated that, when he starts kindergarten, she would like to enroll Logan in the Jonesboro School System. She stated that she thinks Mr. McLaughlin does not want custody as much as his mother wants him to have it, because his mother is the one who usually cares for Logan during his visitation.

On cross-examination, Ms. McLaughlin acknowledged that she has moved several times since the divorce. She was engaged to Matt Garrett and lived with him for two to three weeks around October 2001. She then married John Hawkins on October 27, 2001, and lived with him until December 2001. Ms. McLaughlin stated that she separated from Mr. Hawkins and got their marriage annulled because she was afraid that he might hurt Logan. She was pregnant by Mr. Hawkins and had an abortion. Ms. McLaughlin testified that she has lived in the residence owned by Mr. Latourette since December 24, 2001, and that she began dating him in February 2001.

Jeri Ann Crossno and Leigh Ann Wright are acquaintances of Ms. McLaughlin. They both testified that Logan is well behaved and that Ms. McLaughlin and Logan are very good together.

Mr. Latourette testified that he is fifty-five years old and has been married and divorced three times. He stated that he has developed a good relationship with Logan. Mr. Latourette asserted that after he marries Ms. McLaughlin, Logan will have a separate bedroom and connecting bathroom, and that if Ms. McLaughlin is awarded custody he is willing to help with Logan's finances.

Mr. McLaughlin testified that he farms his parents' property and lives in a three-bedroom house in Paragould. He has been married to Shayla Dawn Simpson for a little over two years, and she has custody of her seven-year-old son from a prior marriage. Mr. McLaughlin indicated that Logan and his stepbrother are close and that they share a bunk bed in one of the bedrooms. The other bedroom is used as a play room.

Mr. McLaughlin testified that his family attends church and is very close. He stated that Shayla loves Logan and is very good with him. If awarded custody, Mr. McLaughlin stated that Logan could attend Green County Tech with his stepbrother.

Mr. McLaughlin agreed that the joint-custody arrangement has become strained. He acknowledged that on one occasion when Ms. McLaughlin's brother was supposed to pick Logan up for visitation, the transfer never occured and he took Ms. McLaughlin's car, which her brother was driving. Mr. McLaughlin stated that he did this because creditors were calling him and saying his credit would be hurt because the payments were delinquent, and both he and Ms. McLaughlin were responsible for the debt. He returned the car soon thereafter, but Ms. McLaughlin alleged that some personal items were missing.

Shayla testified that she is a licensed beautician but currently stays home and cares for the children. She stated that she has a very good relationship with Mr. McLaughlin, and that if he is awarded custody, she is willing to continue to assist in raising Logan.

Judy McLaughlin, appellant's mother, stated that she lives on a farm about four miles from her son and has lived there for thirty-seven years. She stated that she has been babysitting Logan since he was born, and has kept him during the day while Mr. McLaughlin was working. Rufus McLaughlin, appellant's father, testified that he has a wonderful relationship with Logan and that they come to visit once or twice a week.

Mr. McLaughlin argues that the trial court failed to consider the best interest of the child, and clearly erred in failing to find that it was in Logan's best interest to be in his custody. He notes that he has been married to his present wife for two years, and that she quit her job so she could take care of the children. Mr. McLaughlin asserts that he is able to provide stability and that his parents live close by and can help support his family. By contrast, he notes that Ms. McLaughlin has lived at different places and with different men since the divorce, was married for a brief period, and had an abortion. Mr. McLaughlin also points to testimony by Ms. McLaughlin that on one occasion she self-medicated on her father's Xanax, and that on two occasions she fell asleep and allowed Logan to wander outside by himself when he was two years old. Based on all of the evidence presented, Mr. McLaughlin contends he should have been awarded custody pursuant to the best interest of the child.

Mr. McLaughlin also argues that the trial court's order must be reversed because the same visitation schedule was continued through August 1, 2004. He argues that this amounts to joint custody and left the parties in the same situation as before they filed their petitions. Citing Word v. Remick, 75 Ark. App. 390, 58 S.W.3d 422 (2001), appellant argues that because it was undisputed that the parties had fallen into such discord that they were unable to cooperate in sharing physical control of their child, there was a material change of circumstances warranting a custody change. The mutual ability of the parties to cooperate in reaching shared decisions in matters affecting the child's welfare is a crucial factor bearing on the propriety of an award of joint custody, and such an award is reversible error where cooperation between the parents is lacking. Word v. Remick, supra. Mr. McLaughlin argues that because both parties agreed that joint custody was no longer viable, continued joint custody should not have been awarded. Instead, he argues that primary custody should have been granted to him.

Contrary to appellant's argument, our review of the record indicates that the trial court considered the best interests of the child, and we hold that the trial court did not clearly err in placing custody with Ms. McLaughlin. There was evidence admitted at the hearing offered in support of both parties' petitions for custody. However, we give increased deference to a trial court in child-custody cases, and in making it's a decision the trial court has broad discretion. See Campbell v. Campbell, 63 Ark. App. 136, 975 S.W.2d 869 (1998). In this case Ms. McLaughlin established that she has a good relationship with Logan and will be able to provide a suitable home. We acknowledge that Mr. McLaughlin presented testimony tending to show that he, too, is able to provide a positive atmosphere for Logan. However, giving the trial court the deference to which it is entitled in such cases, we cannot say the trial court clearly erred in finding an award of custody to Ms. McLaughlin to be in the child's best interest.

We also disagree with appellant's argument that the trial court erred in continuing the joint-custody arrangement. In its order, the trial court granted Ms. McLaughlin's petition for full custody and ruled that Logan's custody "be vested in [Ms. McLaughlin]," subject to rights of visitation. The essence of custody is the companionship of the child and the right to make decisions regarding his care, control, education, health, and religion. 24A Am. Jur. 2d Divorce and Separation § 930 (1998). The order permitted Mr. McLaughlin to exercise his existing visitation rights through August 1, 2004, and then restricted his visitation to accommodate for Logan's schooling. But it is clear from the trial court's order that it did not order joint-custody; it awarded custody to Ms. McLaughlin based on a material change in circumstances, and this decision was not clearly erroneous.

Affirmed.

Pittman and Bird, JJ., agree.