Sammye Ivy v. Raymond Ivy

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

SAMMYE IVY

APPELLANT

V.

RAYMOND IVY

APPELLEE

CA04-216

January 26, 2005

APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT

[NO. E2001-138]

HON. CHARLES E. CLAWSON,

JUDGE

AFFIRMED

Robert J. Gladwin, Judge

Appellee Raymond Ivy and appellant Sammye Ivy were married on June 15, 1991. On February 13, 2001, appellee filed a complaint for divorce in the Faulkner County Circuit Court. Appellee was awarded temporary custody of the parties' two children and appellant's two children from a previous marriage. Appellee was granted a divorce, and the decree entered on July 2, 2003, provided that the children would remain in the custody of appellee until a final determination was made. In an order entered September 29, 2003, the trial court awarded joint custody with primary physical custody vested in appellee. On appeal to this court, appellant argues that the trial court erred in finding that awarding custody of the children to appellee was in their best interest. We affirm.

In a letter opinion filed January 28, 2003, the trial judge discussed the issue of custody of the parties' children and noted his disapproval of the actions of both parties. The trial judge stated that it was clear that appellee, knowing there was trouble in his marriage, seized the first opportunity to take advantage. The trial judge noted that appellee had wrongly

discussed his situation with a number of people in the community, including his children, to whom he gave more detail than was necessary. The judge disapproved of appellee's action in taking the children away to a remote deer camp for ten days because his stated reason for doing so--his fear that appellant would run away with them--was obviously without foundation. Turning to appellant's behavior, the court found that her assistance to a male friend in his endeavors to avoid paying child support was "ill advised and inappropriate." The judge declined to characterize exactly what type of relationship appellant had with her male friend but noted that she was at a hotel with him and engaged in a conspiracy. The trial court, nevertheless, found that both parties loved their children and would do no physical harm to them but found that both had unnecessarily involved the children in their divorce. The judge noted that the children's source of stability throughout their ordeal was their school and friends in Mount Vernon and that, although appellant may not approve of the town, it was nevertheless home to her children. The judge stated that he feared that awarding custody to either parent would be rewarding or endorsing that parent's bad behavior; however, the judge decided to leave the children with appellee until the end of the school term and then allow appellant to have them during summer break. The judge stated that another hearing would be held at the beginning of the next school term to determine the final placement of the children.

A hearing was held on August 11, 2003. The parties' ten-year-old daughter was questioned by the court. M.I. testified that she had spent the summer with her mother and that they had gotten along well but that she wanted to live with appellee "because I want someone that I can trust, you know ... that will actually believe me and what I say ...." She stated that she wanted someone who did not drink, smoke, or curse and that her dad did none of those things. M.I. also stated that her mother had a short temper and hit her when she got mad. She stated that during the summer they vacationed in Florida and that appellant and her boyfriend slept in the same bed. M.I. stated that she liked going to school at Mount Vernon and that she had many friends there. She stated that her dad helped her with her homework and that she was on the honor roll. She also stated that, although she wins awards at her school, her mother did not come to the ceremonies. According to M.I., appellant rarely took her to ball games and that, at the first game of the season tournament, she and her mother were forty-five minutes late getting there, and so she was allowed to play for only fifteen minutes.

Appellee testified that he attended M.I.'s end-of-the-year awards ceremony while appellant did not. Appellee stated that appellant also did not attend Literacy Night at the school, Fall Festival, and neither of the two parent-teacher conferences. He testified that he was concerned that appellant's smoking was having ill effects on the children and that, although appellant has grand mal seizures, she continued to drive with the children in the car. Audy Swain and Danny Simpson, both of whom had known appellee since childhood, testified that they had seen appellee interact with his children and that they had no qualms recommending that he be awarded custody. In addition, Harold Clawson, pastor of the Naylor Methodist Church, testified that appellee attended church there and had brought his children to bible school. Jason Clark, elementary-school principal at Mount Vernon-Enola, testified that appellant is on the school's e-mail list and that she is notified of events. He stated that the school also has a website. Clark stated that appellee was on the school board and was very involved at the school as a parent.

Appellant's seventeen-year-old daughter, J.D., testified that she attends Greenbrier School and that she thinks it is a better school than Mount Vernon because it offers more extracurricular activities and more classes. J.D. stated that she thought M.I. could easily adjust if she switched schools and that M.I. already had a couple of friends her age who go to Greenbrier School. According to J.D., when M.I. and A.I. come to appellant's house after being with appellee, they are initially reserved and disrespectful toward appellant. She testified that she saw M.I. and A.I. in the parking lot before going into the previous hearing and that she went to greet her brother and sister. J.D. said that A.I. had been crying and reached out for her but that appellee pulled A.I. away from her.

Marlene LeDuc, appellant's mother, testified that M.I. and A.I. have a good relationship with their mother but that they are subjected to alienation and intimidation, which makes the relationship difficult. LeDuc stated that as soon as the children get in front of appellee, they start "shutting down" in that they do not say goodbye and do not give hugs and kisses.

Appellant testified that she had asked appellee for progress reports but that she was not allowed to see them and that she had not been notified of an awards ceremony while conceding that she had received other e-mail notifications. She stated that she did not know that the Mount Vernon-Enola Schools had a website. Appellant testified that the children were still disrespectful at times but that she and the children were rebuilding a relationship that had been completely shattered. She stated that she had asked appellee for the children's ball-game schedules but that she did not receive them and that she was late for events because she was not notified in advance. Appellant testified that Greenbrier is one of the top-rated schools in Arkansas and that the children could adjust if they were to attend school there. Appellant stated that she does not smoke around the children very often, that she tries not to smoke at all in the house but, if she does, it is in only one area or with a door cracked, and that if she smokes in the car, she opens the sunroof and all of the windows. Appellant conceded that appellee had given her a doctor's note regarding her smoking. She testified that her boyfriend, whom she had been dating for approximately a year and a half, never spent the night in her home and that they did not sleep together on the trip to Florida. Appellant stated that she goes to a church in Greenbrier but that she had not had the opportunity to take M.I. and A.I. there very often. She stated that she did not hit M.I. and that many of the other things M.I. testified to were inaccurate. Appellant stated that she had another grand mal seizure in the latter part of 2002 but that she continued to drive with the children in the car because she had never had a seizure while she was taking a full dose of medication.

On August 20, 2003, the trial judge filed another letter opinion in which he sought to explain how he had arrived at his decision to award appellee custody of the children. The trial court first pointed out that neither party was without fault in the situation. Appellee was described as having "a highly developed persuasive ability" in having convinced the children that their mother had betrayed them. The court noted that appellant had played directly into appellee's hands by focusing her attention on other matters, specifically, by assisting a male friend who sought to avoid paying court-ordered child support. The trial court also noted that appellant had continued to smoke, knowing the ill effects it would have on her children. Although the judge had insufficient information to make a determination as to whether Greenbrier or Mount Vernon was the better school district in which to enroll the children, the judge pointed out that the children seemed to be content and doing well in their current school district in Mount Vernon. The court pointed out that it placed little emphasis on the fact that the children would stay with a grandparent if placed with appellee as opposed to a day care center if placed with appellant. Finally, the judge reiterated his earlier fear that the custody award would be viewed in terms of a reward or a penalty, and the judge again pointed out that the party to whom custody would be awarded was not necessarily without flaws. The court concluded that appellee would be given primary physical custody and that appellant would have standard visitation.

In child-custody cases, we review the evidence 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. See Carver v. May, 81 Ark. App. 292, 101 S.W.3d 256 (2003). 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. Middleton v. Middleton, 83 Ark. App. 7, 113 S.W.3d 625 (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. Durham v. Durham, 82 Ark. App. 562, 120 S.W.3d 129 (2003). 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. Watts v. Watts, 17 Ark. App. 253, 707 S.W.2d 777 (1986). In custody cases, the primary consideration is the welfare and best interest of the child involved, while other considerations are merely secondary. Eaton v. Dixon, 69 Ark. App. 9, 9 S.W.3d 535 (2000). Appellant maintains that the only significant problem in her marriage to appellee was her unhappiness in living in Mount Vernon, appellee's hometown. Appellant states that, following the deer-camp incident, she no longer shared a loving and affectionate relationship with her children and that the entire community turned against her. Appellant contends that the trial court erred in finding that she and appellee were equally to blame because her assistance to the brother of her best friend had no negative effect on her children, unlike appellee's conduct in manipulating the children and poisoning their minds against her. Appellant contends that the trial court clearly gave appellee preference in the custody determination because of his location in Mount Vernon. She maintains that this was errorbecause the Mount Vernon community and school were effectively "accomplices" to appellee's bad conduct in turning the children against their own mother.

The trial court implicitly found that neither party was more fit or proper than the other to have custody of the children. That the trial court gave weight to the fact that awarding custody to appellee meant that the children would remain in the Mount Vernon community was not error. See Milum v. Milum, 49 Ark. App. 3, 894 S.W.2d 611 (1995). We defer to the trial court on such matters. Here, the trial court aptly described the children's involvement with the parties' divorce as an "ordeal" and noted that they had gained some measure of stability from the people and school in Mount Vernon. Significantly, the trial court reminded the parties that Mount Vernon was home to the children. Because we cannot say that the trial court clearly erred under these circumstances, we affirm the trial court's decision to award custody of the parties' children to appellee.

Affirmed.

Robbins and Neal, JJ., agree.