Brian Brewer v. Stacie Brewer

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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

ca05-431

DIVISION III

CA05-431

DECEMBER 14, 2005

BRIAN BREWER AN APPEAL FROM THE ARKANSAS

APPELLANT COUNTY CIRCUIT COURT [DR-2003-153]

V.

STACIE BREWER HONORABLE DAVID HENRY, JUDGE

APPELLEE AFFIRMED

Olly Neal, Judge

Appellant, Brian Brewer, and appellee, Stacie Brewer, were married in June 1999 and separated in May 2003. At the time that appellant filed for absolute divorce on October 3, 2003, the parties had one child, Austin, born of the marriage and were awaiting the birth of another child, whose paternity appellant questioned. Following the separation, appellee and Austin moved to California in order to be closer to her family. In her answer to appellant's complaint for divorce, appellee counterclaimed for an absolute divorce on the ground of general indignities. On October 6, 2003, an order was entered that granted appellant a thirty-day visit with Austin. The order required that Sherry and Wes Brewer, appellant's parents, undertake primary custody of the child; it also required that Sherry and Wes Brewer enroll Austin into a speech therapy program commensurate to his program in California.1 Subsequent to the parties filing for divorce, Sherry and Wes Brewer (theBrewers) filed a petition to intervene, requesting that the court grant them custody of the two children.2 The Brewers alleged in their petition that appellee had not actively pursued treatment for Austin during the pendency of the divorce.3

On August 13, 2004, the court heard this case. Appellant and appellee, along with the Brewers, were present. The court was advised that the parties had reached an agreement regarding visitation and child support. Thereafter, on September 16, 2004, the court entered a divorce decree that provided in part as follows:

10. The [appellee] is a fit and proper person and is the parent best suited to have custody of the minor children, subject to reasonable visitation rights of the Intervenors, who are the paternal grandparents of the minor children, as set forth below; the [appellant] shall be allowed to visit with the children at the Intervenor's home when they have visitation.4

(Emphasis added.) It is from this decree that appellant now appeals.

For reversal, appellant argues that the trial court's visitation schedule was not in his children's best interest because it did not allow him to have set visitation with them. We affirm.

Cases involving visitation are reviewed de novo and are reversed only when the trial court's findings are clearly erroneous. Ishmael v. Ismail, 66 Ark. App. 232, 989 S.W.2d 923 (1999). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court, based on the entire evidence, is left with a definite and firm conviction thata mistake has been committed. Taylor v. Finck, ___ Ark. ___, ___ S.W.3d ___ (July 1, 2005); Chitwood v. Chitwood, ___ Ark. App. ___, ___ S.W.3d ___ (Jun. 29, 2005). In reviewing the court's findings, we give due deference to that court's superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Evans v. Tillery, ___ Ark. ___, ___ S.W.3d ___ (Mar. 3, 2005). As a rule, when the setting of visitation is at issue, we will not reverse the court absent an abuse of discretion. Delacey v. Delacey, 85 Ark. App. 419, 155 S.W.3d 701 (2004) (citing Davis v. Davis, 248 Ark. 195, 451 S.W.2d 214 (1970)). However, a circuit court's conclusion of law is given no deference on appeal. Ward v. Doss, ___ Ark. ___, ___ S.W.3d ___ (Mar. 24, 2005).

Appellant requests that we modify the divorce decree to include him in the visitation schedule. He avers that the schedule is fair with the exception of not granting him visitation with the children, and that under Arkansas law, he, as the non-custodial parent, was clearly entitled to visitation with them. It is incumbent upon the trial judge to set appropriate visitation for the non-custodial parent. See Dansby v. Dansby, ___ Ark. App. ___, ___ S.W.3d ___ (June 30, 2004). In this instance, the order provides that appellant can visit the children in his parents' home when they have visitation. The visitation schedule was reached by agreed order, and the court adjudged visitation as agreed upon by the parties. Therefore, appellant has received the relief he requested at trial and has no basis on which to appeal this issue. Delacey, supra (citing Brown v. State, 315 Ark. 466, 869 S.W.2d 9 (1994)). Consequently, we affirm.

Affirmed.

Glover and Vaught, JJ., agree.

1 At one point, Austin had tubes in his ears and could not hear properly. As a result of these hearing problems, Austin has difficulty in speaking. Occupational and speech therapy wererecommended.

2 The second child, Alexis, was born January 25, 2004.

3 The Brewers alleged that appellee was on drugs and had "been on a date with a man with child abuse."

4 Apparently, appellant entered the military when he completed high school, and after his honorable discharge from the Navy and return to Arkansas, had some difficulty holding a job. He had two DWI convictions, resulting in the suspension of his license, and he was involved in drug and alcohol treatment and counseling.