Stephanie Purvis v. Joseph Purvis

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

CA04-721

February 16, 2005

STEPHANIE PURVIS AN APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT

APPELLANT [DV 2001-2611]

v.

JOSEPH PURVIS HONORABLE VANN SMITH,

JUDGE

APPELLEE

REVERSED AND REMANDED

Olly Neal, Judge

Appellant Stephanie Purvis appeals the order entered by the Pulaski County Circuit Court awarding her and appellee Joseph Purvis (Joe) joint custody of their minor child with Joe having primary physical custody. On appeal, Stephanie argues that the trial court erred when it awarded Joe primary custody of their minor child. We reverse the award of joint custody and remand for reconsideration of the child custody determination and the entry of an order consistent with this opinion.

The parties were divorced by decree on July 23, 2002. At that time, the trial court awarded Joe temporary custody of the parties minor son, J.P., born January 14, 2000, subject to Stephanie's visitation. The trial court made such an award due to reservations it had about both parties. In October 2003, Stephanie filed a motion seeking a change of custody. A hearing on the motion was held March 9-10, 2004. During the hearing, the trial court heard the following testimony.

Stephanie described her life at the time of the parties' divorce as unstable. She said that at the time she was involved with a woman by the name of Summer Dollar. She explained that Ms. Dollar was the only woman with whom she had ever been romantically involved. Stephanie testified that although her relationship with Ms. Dollar had ended, she occasionally spoke to her on the phone. She also said that at the time of the parties' divorce she was facing criminal charges stemming from an altercation with Ms. Dollar and another woman. Stephanie testified that as a result she was convicted of assault and placed on one year's probation and ordered to pay a fine. She said that her probation would end in April 2004. Stephanie testified that, following the parties' divorce, she was diagnosed with situational stress and anxiety. She said she was initially prescribed Effexor but later prescribed Xanax and Clanazapam (sic). She said that she had also filed bankruptcy.

Stephanie testified that she lives alone. She said that she was renting her current residence and had lived there fourteen months. Stephanie testified that she was employed full-time at Alltel Communications. She said that she had worked there approximately one year. She said that she also works part-time for Watson's Cleaning. She testified that the job at Watson's requires thirty minutes to one hour of her time per day.

Stephanie testified that in the divorce decree she was ordered to pay $100 per week in child support. She explained that in the Fall of 2002, she lost her job with Cingular and that she was unemployed until April 2003, which is when she obtained her job with Alltel. She said that while unemployed she accrued an arrearage. Stephanie testified that, since obtaining her job at Alltel, she had regularly made her child-support payments and had cured her arrearage. However, she later admitted that when the hearing began she still owed an arrearage of $154.59. During her testimony, Stephanie presented a receipt indicating that, after the hearing began, she had paid the outstanding amount.

Stephanie asserted that Joe was not providing J.P. the proper medical treatment. She explained that in February, J.P. appeared sick when she picked him up for her visitation. She said that she made a doctor's appointment and J.P. was diagnosed with an upper respiratory infection and ear infections in both ears. Stephanie further testified that the decree provides that she is to have visitation every other weekend from 6 p.m. Friday until the following Tuesday morning. She said that on her Fridays her parents will pick J.P. up at lunchtime. She also said that J.P. was also picked up early for her Tuesday night visitation. Stephanie testified that Joe had not objected to J.P. being picked up early. However, Stephanie believed she was being denied the opportunity to exercise visitation beyond what was specified in the divorce decree. She said that when she asked to see J.P. on Halloween, she received no reply from Joe but that evening she received a call from her parents informing her that J.P. was at their house. She also said that Joe would not allow extra visitation during the Easter holiday nor on her mother's birthday. However, Stephanie later testified that Joe had brought J.P. to her mother's birthday party.

Stephanie also alleged that she was being denied reasonable telephone visitation. She said that, when she calls, she is often told that J.P. is either in the bathtub, sleeping, or playing on the computer. She said that she had only managed to speak with J.P. six times.

Stephanie testified that during her visitations she has made an attempt to include Joe in some of their activities. She also said that, during her visitations, J.P. often spends time with Joe's daughter. Stephanie testified that she had made an effort to stay informed of matters at J.P.'s daycare. She admitted that J.P. was doing well in school.

Stephen Tustison, Stephanie's father, described Stephanie as being a good mother. He said she no longer makes poor choices. He explained that her poor choice was becoming involved with Ms. Dollar. Mr. Tustison testified that, in May 2002, Stephanie and Ms. Dollar were living together, but subsequently broke up after having a fight. He said that Stephanie now has her own home and J.P. has his own room. Mr. Tustison testified that, on the Fridays that Stephanie has visitation, he will pick J.P. up from daycare at lunch time and that he spends the afternoon with J.P. up until Stephanie gets off work. He said that he also picks J.P. up from daycare when Stephanie has her Tuesday night visitation.

Michael Tustison, Stephanie's brother, also described Stephanie as being a good mother. He said that it appeared that Stephanie and J.P. had a great relationship. Michael testified that his family was really close and often got together for birthdays, holidays, and special occasions.

George Purvis, Joe's brother, testified that he visits Joe's home every day and that when he arrives Joe is often doing something with J.P., such as cooking, playing on the computer, or playing chess. He said that Joe takes care of the day-to-day parenting. However, he said that he and his wife cared for J.P. one weekend when Joe was in jail. George testified that he had been present when Stephanie called and that J.P. did not want to stop playing to come to the phone. He described J.P. as not being much of a talker and not liking to talk on the phone. George said that J.P. will even refuse to come to the phone when Joe calls.

Lonnie Smith testified that he was J.P.'s teacher at Montessori Children's House. He said that J.P. had been enrolled about a year and a half and that during that time J.P. had made "real" progress. He also said that J.P. was on target for his age. Mr. Smith believed that the skills being taught in the classroom were being reinforced at home. He testified that Joe brings J.P. to school and picks him up except for when Stephanie has visitation. He said that on the days Stephanie has visitation, Stephanie's parents will pick J.P. up at lunch time. Mr. Smith believed that Joe was doing a great job. He conceded that he did not know Stephanie well enough to form an opinion as to her parenting skills.

Joe testified that he lives in the home that he grew up in and that he had lived there for twenty-eight years. He said that his father, niece and his niece's child also live there. He explained that his niece was living with them on a temporary basis. He said that, although a room of his own was available, J.P. refuses to sleep by himself and therefore shares a room with Joe. Joe said that on a typical day he will get up around 7 a.m., get J.P. up and showered, prepare breakfast, and take J.P. to daycare between 8 and 9 a.m. He said that occasionally they will go to McDonald's for breakfast. Joe testified that he owned Peace of Mind Maintenance and runs the business from his home. He explained that he has a journeymen electrical license and does electrical work. He said that his gross weekly income was $620. Joe testified that he also works for Site Excell. He explained that the job involved finding sites for cell phone towers and that the income from this job varies. Joe testified that he did not have a problem with Stephanie's parents picking J.P. up early. He testified that on Halloween he had voluntarily taken J.P. to see Stephanie's family. Joe denied not allowing Stephanie reasonable telephone visitation. He said that J.P. does not like to talk on the phone and he did not think that the child should be forced to talk on the phone when he did not want to do so. Joe admitted that he had to spend a weekend in jail following his arrest for failure to appear and failure to show proof of insurance.

Joe testified that Stephanie failed to pay child support from October 21, 2002, to February 14, 2003. He said that she failed to inform him that she was unemployed but that he figured out that she was unemployed when her checks stopped coming. He said that she was currently in arrears $252.07. Joe testified that, upon figuring out that Stephanie was unemployed, he obtained medical insurance for J.P. He denied allowing J.P. to get sick and not obtaining the proper medical treatment.

Joe testified that he and Stephanie were both raised Catholic and had agreed to raise J.P. Catholic. He said that he and J.P. attend church on Sunday. Joe explained that he and his daughter's mother had a falling out and that she would no longer allow him to take their daughter to see J.P. but would allow him to bring J.P. to see her.

In a March 15, order the trial court wrote the following:

3. The primary issue in this case is the final custody of the parties' minor child, [J.P.], age four (4) years old. Since no final decision has ever been made on custody, the Court will consider the best interest of the minor children in making its decision.

. . .

5. The Court has considered the evidence presented at trial and finds that the parties shall have joint custody of [J.P.] with the father having primary care of the minor child, subject to the liberal visitation rights of the plaintiff, as set out below.

6. Both parties are suitable to take care of [J.P.]. The defendant has an excellent job with Alltel making over $1,000 net per week. The father has a job as a journeyman electrician making approximately $435 net per week, plus whatever else he makes on his other jobs. The Court was impressed by the father providing a stimulating environment for the child to learn. The father has provided computer educational games, reads to the child and has taken good care of him since July 2002. The mother has also been an integral part in the child's educational life and has provided him opportunities for learning. Both parents have been involved in the child's medical care over the years and that is impressive to the Court.

7. The Court further finds that both parties have active and interested extended family that care very much for [J.P.]. [J.P.] is a fortunate little boy to have so many loving family members caring for him.

From this order, Stephanie now brings this appeal.

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 contrary to the preponderance of the evidence. Tipton v. Aaron, Ark. App. , S.W.3d (June 16, 2004). 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. In child-custody cases, the primary consideration is the welfare and best interests of the child involved; all other considerations are secondary. Dansby v. Dansby, Ark. App. , S.W.3d (June 30, 2004). Custody awards are not made or changed to gratify the desires of either parent, or to reward or punish either of them. Tipton v. Aaron, supra. Because the question of whether the trial court's findings are clearly erroneous turns largely on the credibility of the witnesses, we give special deference to the superior position of the trial judge to evaluate the witnesses, their testimony, and the child's best interest. Dansby v. Dansby, supra.

On appeal, Stephanie asks that we reverse the trial court's order awarding Joe primary custody and award her primary custody. She asserts that awarding Joe primary custody was not in the child's best interest. In support of her argument she alleges that the trial court failed to consider (1) that up until the parties' divorce she was the child's primary care-giver; (2) whether the parties were capable of cooperating; (3) the relationship with the half-sibling.

We begin by first addressing Stephanie's first and third sub-points. First, although the fact that a parent has been the child's primary caretaker is relevant and worthy of consideration in determining which parent should be granted custody, it is not in and of itself determinative: the unyielding consideration in determining child custody is the welfare and best interest of the child. Thompson v. Thompson, 63 Ark. App. 89, 974 S.W.2d 494 (1998).

Second, the prohibition against separating siblings in the absence of exceptional circumstances does not apply with equal force in cases where the children are half-siblings. Middleton v. Middleton, 83 Ark. App. 7, 113 S.W.3d 625 (2003). Furthermore, being that the children are related through the father, Stephanie's argument is misplaced.

As to Stephanie's contention that the trial court failed to consider whether the parties were capable of cooperating, we begin by noting that joint custody or equally divided custody of minor children is not favored in Arkansas unless circumstances clearly warrant such action. Thompson v. Thompson, supra. However, the relevant statute, Ark. Code Ann. § 9-13-1019b) (1)(A)(ii), was amended in 2003 to specifically permit the court to consider the award of joint custody. Dansby v. Dansby, supra. 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 improper where cooperation between the parents is lacking. Thompson v. Thompson, supra. We have reversed awards of joint custody where it was clear that the parties were not working in concert to raise the child. Id.

Here, there is no clear indication as to whether the parties were able to cooperate in raising the child. Therefore, based upon our de novo review of the evidence, we hold that the award of joint custody was in error and therefore, we reverse the award of joint custody and remand for reconsideration of the child custody determination and the entry of an order consistent with this opinion.

Reversed and remanded.

Hart and Glover, JJ., agree.