Clifford V. Vanderpool, III v. Paula E. Vanderpool

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

CLIFFORD V. VANDERPOOL, III

APPELLANT

V.

PAULA E. VANDERPOOL

APPELLEE

CA05-450

November 30, 2005

APPEAL FROM THE BENTON COUNTY CIRCUIT COURT

[DR-2004-295]

HON. XOLLIE DUNCAN,

JUDGE

AFFIRMED

Robert J. Gladwin, Judge

On October 12, 2004, the Benton County Circuit Court granted a divorce to appellant Clifford V. Vanderpool, III, and appellee Paula E. Vanderpool. The trial court found that appellee should retain the primary care, custody, and control of the parties' two children, subject to reasonable visitation by appellant. Appellant argues on appeal that the trial court erred in granting custody to appellee. We disagree and affirm.

At a hearing held on September 22, 2004, appellee testified that she and appellant were married on November 12, 1988, and separated on February 22, 2004, after a long period of discord. During their marriage, appellee was the primary care giver for their boys, eleven-year-old J.V. and eight-year-old E.V. Appellee was employed at Wal-Mart as a computer programmer and worked reduced hours so that she could get the boys ready for school in the morning and be at home when the boys got off of the school bus in the afternoon. According to appellee, appellant worked long hours, and he often played golf, watched sports on television, exercised at a fitness center, or did yard work in his free time.

At the time of the hearing, both boys were doing well in school and were active in sports. Appellee usually took the boys to and from practice for their sports. Both parents attended as many of the boys' games at they could. According to appellee, appellant is partial to J.V. because J.V. is more skilled athletically and plays appellant's favorite sports, whereas E.V. is not as athletically inclined and enjoys different sports than his older brother. Appellee stated that she liked to drink a couple of beers after work and either after dinner or after the boys had gone to bed. She admitted that there were times that she had been intoxicated in front of the boys, including on a family vacation in Florida on a fishing boat that offered unlimited alcoholic beverages and during a super bowl party at a friend's house. She stated that just prior to their separation, the family had gone to a restaurant for dinner, and she had drunk one beer. Appellee testified that appellant caused a scene in the parking lot because he told the boys that they were not allowed to ride with her after she had been drinking. Appellee stated that appellant had never voiced any objections or concerns about her consumption of alcohol prior to that incident. Appellee testified that she had complied with the court's order that she not drink in the presence of her children and that she not keep alcohol in her house when the children were there. She stated that, with the exception of sampling some beers at the Ozark Brewing Company, she had not drunk any beer.

Appellee admitted that she has a temper and has yelled and cursed at the children. She testified that J.V. was bouncing a ball inside the house one day and that she had told him to stop. He ignored her and continued to bounce the ball. Eventually, he hit a picture on the wall, and the picture fell and broke. Appellee admitted that she called J.V. a "stupid son of a bitch" when it happened. Appellee also described a "road rage" incident. She and the boys were on their way to meet appellant for dinner at a restaurant. Traffic was heavy, and shehad been sitting at a stop light for twenty or thirty minutes when someone in a van cut in line ahead of her. She followed the van, got behind him or her at the stop light, and began honking the horn and flashing her car's headlights at the driver of the van. Appellee thought the incident was "quite comical." Appellee also described an occasion when she was at a baseball game and became so outraged that her son's team was not doing well, she had to sit in the van and calm herself down. She stated that, at another baseball game, she became angry because of her son's poor performance and threw a baseball to him as hard as she could from approximately twenty feet away.

Appellee stated that the boys disobeyed her one time by going to the pond without supervision. She stated that her younger son was walking on the ice covering the pond and fell through the ice. The older boy came and got appellee out of the house, and she was able to pull her son out of the pond.

Appellee stated that she and appellant fought about whether the boys could have motorcycles. Appellant forbade the boys from having them, but appellee decided to buy them for the boys using her Christmas bonus. Appellant stated that he was not "a big gun fan" either, but the boys had BB guns as well.

Appellant testified that he has worked as a developer at Wal-Mart for ten years. His normal hours are 7:30 a.m. to 5:30 p.m., but he works overtime on certain projects and sometimes has to work on weekends. Appellant stated that he had already spoken to his bosses and that they had approved of his working fewer hours in the event that he gained custody of the boys.

Appellant testified about a time that he lost his temper. He was brush hogging while appellee was in the garage cleaning the van. The boys had asked to use their BB guns, and appellee allowed them to shoot their guns unsupervised. At some point, one of the boys shotout the window of the van while appellee was inside it. Appellant knew what had happened but finished his brush hogging before he had a talk with the boys about how dangerous the BB guns were. He took them into the garage and destroyed the BB gun in front of them by throwing it onto the concrete and jumping up and down on it. The boys were scared, but appellant told them that it was not their fault because appellee had left them unsupervised.

Appellant had helped the boys pick out a Mother's Day gift for appellee that year. Appellant did not realize that the boys had given her a funeral wreath. He explained that in the aisles at Wal-Mart, the Mother's Day gifts are next to the Memorial Day wreaths.

Appellant stated that, before appellee started taking medication for anxiety and depression, he and the boys did not know what kind of condition she was going to be in when she came home from work. Appellant conceded, however, that taking the medication had helped appellee. He stated that she could not handle certain situations and did not know how to control the boys. Appellant testified that he is still concerned about appellee's drinking and pointed out that he drinks infrequently.

Appellant testified that he had always been "number one" in his boys' lives. He stated that the boys usually want to ride in the car with him versus their mother and that they both want him to take them to their ball games. He said that, because he cannot be at both places at the same time, they usually flipped a coin and whoever won could pick who would take them. Appellant testified that they could have picked their mother but that they always picked him.

Several coworkers and friends of the family testified regarding each party's character. They primarily talked about drinking episodes, temperament, and involvement with the boys. At the conclusion of the hearing, the judge found that appellee did not have a seriousproblem with alcohol and that, in any event, she had complied with the court's order not to drink around the children or have alcohol in the house. The judge found that, by agreement of the parties, appellee had been the primary care giver and that, because they had operated under those circumstances for many years, it was in the best interests of the children that appellee remain the primary care giver. The judge then took each party to task for their bad behavior. She concluded, however, that considering the overall difficult situation, the parties had done a good job of raising the kids. In the divorce decree, in addition to a provision regarding alcohol, appellee was ordered to complete anger management classes, to seek the advice of her doctor as to whether she needed to take a larger dose of Zoloft, and to refrain from using any curse words when correcting the children.

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. Durham v. Durham, 82 Ark. App. 562, 120 S.W.3d 129 (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. Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d 520 (1999). We have often stated that 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. Fitzpatrick v. Fitzpatrick, 29 Ark. App. 38, 776 S.W.2d 836 (1989). 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. Hollinger v. Hollinger, 65 Ark. App. 110, 986 S.W.2d 105 (1999). In custody cases, the primary consideration is the welfare and best interests of the children involved, while other considerations are merely secondary. Milum v. Milum, 49 Ark. App. 3, 894 S.W.2d 611 (1995). Moreover, custody awards are not madeto gratify the desires of either parent, or to reward or punish either one of them. Fitzpatrick, supra. Appellant argues that the trial court erred in awarding custody to appellee considering that she had an admitted anger management problem that required medication. Appellant also argues that the trial court erred in placing great weight on the fact that appellee had been the primary care giver because the parties had agreed to that situation. He contends that the court essentially put an additional burden of proof on him and that doing so could cause parents to "position themselves" in deciding who will be the breadwinner and who will stay home with the kids. Appellant argues that he had the superior relationship with the children and was prepared to take on the same schedule as appellee.

We are simply not left with a definite and firm conviction that the trial court erred in awarding custody to appellee. It is clear from the testimony that both parents behaved badly at times and exercised poor judgment. We do not agree that the trial court placed any additional burden on appellant. The trial court was entitled to consider appellee's position as primary care giver, regardless of the fact that it was a joint decision, in its determination of the best interests of the children. Clearly, the need for stability and continuity is a factor in that determination. See Rector v. Rector, 58 Ark. App. 132, 947 S.W.2d 389 (1997). Furthermore, the trial court adequately addressed appellee's issues regarding anger management and medication, as well as other concerns, in both its ruling from the bench and its decree. Considering our standard of review, we cannot say that the trial court's decision to award custody to appellee was clearly against the preponderance of the evidence.

Affirmed.

Robbins and Baker, JJ., agree.