Candace Goad Bray v. Jeffery Allen Goad and Jimmy Norrell

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ca04-871

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

CANDACE GOAD BRAY

APPELLANT

V.

JEFFERY ALLEN GOAD AND JIMMY NORRELL

APPELLEES

CA04-871

June 22, 2005

APPEAL FROM THE LINCOLN COUNTY CIRCUIT COURT

[NO. DR-03-63-5]

HON. FRED D. DAVIS, III,

JUDGE

AFFIRMED

John Mauzy Pittman, Chief Judge

Appellant had one child, Darryl, by appellee Jimmy Norrell in 1987. She subsequently married appellee Jeffery Goad in 1999 and they had two children, Emmallee and Kayti. Appellee Jeffery Goad filed for divorce and requested custody of all three children. Appellee Jimmy Norrell intervened and requested custody of Darryl. After a hearing, the trial judge awarded custody of Emmallee and Kayti to appellee Jeffery Goad, and custody of Darryl to appellee Jimmy Norrell. On appeal, appellant argues that the trial court erred in finding that she was an unfit mother and in refusing to grant a new trial on that issue; erred in failing to award custody of all three children to her; and erred in not awarding her visitation that would permit all three children to visit her at the same time. We affirm.

The best interest of the child is the polestar in every child-custody case; all other considerations are secondary. Ford v. Ford, 347 Ark. 485, 65 S.W.3d 432 (2002). Our standard of review in child-custody appeals is well settled. We review the evidence de novo,

but we will not reverse the findings of the court unless it is shown that they are clearly contrary to the preponderance of the evidence. Dunham v. Doyle, 84 Ark. App. 36, 129 S.W.3d 304 (2003). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite conviction that a mistake was committed. Deluca v. Stapleton, 79 Ark. App. 138, 84 S.W.3d 892 (2002). 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 177 (1986), and 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 in custody cases to the superior position of the trial judge to evaluate the witnesses, their testimony, and the child's best interests. Walker v. Torres, 83 Ark. App. 135, 118 S.W.3d 148 (2003).

The first argument advanced by appellant, that the trial court erred in finding that she was an unfit mother, is facially without merit. The trial court did not find that appellant was an unfit mother and, given that custody of all the children was awarded to parents, no such finding was necessary to support the award. See Moore v. Sipes, 85 Ark. App. 15, 100 S.W.3d 674 (2004). Similarly, appellant's argument that the trial court erred in not awarding her visitation that would permit all three children to visit her at the same time is unavailing because she is in fact able to visit all of her children together on the second weekend of each month by the clear terms of the decree.

Nor do we find merit in appellant's argument that the trial court erred in failing to award custody of all three children to her. Appellant admitted that she was, at the time of the hearing, engaged to be married to Billy Bray, a convicted felon. She also admitted that she had violated the court's orders by exposing the children to Mr. Bray during the pendency of the divorce proceedings and by failing to pay any of the court-ordered child support. Appellant testified that she sought a separation from appellee Jeffery Goad because he was no longer coming home promptly after work and because he would no longer help her care for the children after he arrived home. She also testified that she took care of the children and cooked during the time she was married to Jeffery Goad. This evidence, however, was directly controverted by that of Jeffery Goad, who testified that they separated because appellant would leave the house after the children were in bed and would spend the night with Billy Bray. He also testified that he cooked almost all of the meals, changed diapers, and was on the vast majority of occasions the person who bathed the children, read them stories, and put them to bed. In light of the sharply-disputed testimony on these and other issues regarding the custody of Emmallee and Kayti, and giving due regard to the trial court's superior opportunity to assess the credibility of the witnesses, we cannot say that the trial judge clearly erred in failing to award custody of these children to appellant.

With regard to the custody of Darryl, the evidence is undisputed that Jimmy Norrell had almost no previous contact with Darryl and provided little or no support. Nevertheless, it appears from our reading of the record that Jimmy Norrell is stable and even-tempered. Furthermore, as noted above, the record supports a finding that it was not appellant but was instead Jeffery Goad who was Darryl's primary support and care giver. Significantly, there was evidence that all of the occasions when Jimmy Norrell was permitted to see Darryl the child was in the custody of his maternal grandmother, but appellant intentionally prevented Jimmy Norrell from having any contact or involvement with Darryl by threatening to refuse to allow her mother to see Darryl if she continued to permit Jimmy Norrell to visit him. At that time, Jimmy Norrell was a teenager and unable to afford an attorney. Furthermore, appellant admitted that she submitted a falsified letter to the Arkansas Bureau of Vital Statistics in an attempt to have Jeffery Goad listed as Darryl's father, although she knew that Darryl's father was Jimmy Norrell. In contrast, the evidence showed that Jimmy Norrell and Jeffery Goad were willing and able to cooperate to ensure that the children maintained their relationships with their siblings and other family members. Whether one parent is alienating a child from the other is an important factor to be considered in cases involving child custody, Carver v. May, 81 Ark. App. 292, 101 S.W.3d 256 (2003), and on this record we cannot say that the trial court clearly erred in awarding custody of Darryl to Jimmy Norrell.

Affirmed.

Robbins and Vaught, JJ., agree.