Katrina D. Baker v. Larry O. Baker, Jr.

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

KATRINA D. BAKER

APPELLANT

V.

LARRY O. BAKER, JR. APPELLEE

CA 05-284

February 22, 2006

APPEAL FROM THE LONOKE

COUNTY CIRCUIT COURT

[DR-2004-221]

HONORABLE PHILLIP T.

WHITEAKER, CIRCUIT JUDGE

AFFIRMED

David M. Glover, Judge

Appellant, Katrina Baker, and appellee, Larry Baker, Jr., were divorced for the second time on December 9, 2004, and the parties were awarded joint legal custody of their minor daughter, with Larry being awarded primary physical custody and Katrina given unsupervised visitation. Katrina now appeals, arguing that the trial court erred in granting the parties joint legal custody and awarding Larry physical custody. We affirm.

It is fair to say that these parties have a litigious history. They were first divorced in December 2001, when their daughter was three. They remarried, but they separated again in September 2002. After the parties separated in September 2002, Larry did not see his daughter for thirteen months. He moved to Texas with his girlfriend in September 2003. During his first visit with his daughter in 2004, she told him that she had been

sexually abused by Katrina's boyfriend, Dewayne. Katrina lived with Dewayne Shirley from December 2002 until May 2003. Larry called the proper Texas and Arkansas authorities to report the abuse and enrolled his daughter in counseling, but he did not discuss this situation with Katrina and did not return the child to her.

Katrina filed for the second divorce on April 12, 2004. The day after Katrina filed for divorce, Larry filed an ex parte motion for emergency custody, alleging sexual abuse of their daughter by one of Katrina's boyfriends. While that motion was pending, Katrina filed an ex parte motion for return of the child.

A hearing was held on May 4, 2004, and Larry was granted temporary custody of the child, with Katrina having unsupervised visitation. Larry was cited in July 2004 for contempt for denying Katrina visitation with their daughter. Psychological evaluations on all parties were ordered, and various other motions were filed that have no bearing on the issue on appeal.

The parties do not dispute that the child was sexually abused by Dewayne Shirley while in Katrina's care. Dr. Paul Deyoub, a forensic psychologist, testified at length during a September 30, 2004 hearing that, despite the fact that the child was sexually abused while in Katrina's care, he believed that it was in the child's best interest for Katrina to have custody. In support of this opinion, Dr. Deyoub noted that Larry had been absent from the child's life for a period of thirteen months, a fact acknowledged by Larry; that, in his (Deyoub's) opinion, Larry only believed that the child's problems stemmed from the sexual abuse when in fact there were many other problems; that Katrina had been the child's primary care giver and had a better understanding of all of the child's problems; that Katrina was no longer dating the man who had sexually abused the child; that Larry was attempting to alienate Katrina from their daughter by having the child call his girlfriend "Mommy" and having the child refer to her mother as "Katrina"; and that if Larry was given custody, he would systematically destroy the child's relationship with Katrina. Nevertheless, at the end of a subsequent two-day hearing in November 2004, the trial judge granted the parties joint legal custody and awarded physical custody to Larry.

In Mason v. Mason, 82 Ark. App. 133, 140, 111 S.W.3d 855, 858-59 (2003) (citations omitted), this court set out our standard of review:

In child custody cases, 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. 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. 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. 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.

Here, Katrina argues that the trial court erred in granting joint legal custody to the parties, with Larry having primary physical custody. Joint custody of minor children is not favored in Arkansas unless the parties have demonstrated a mutual ability to cooperate with each other regarding matters affecting the child's welfare. See Word v. Remick, 75 Ark. App. 390, 58 S.W.3d 422 (2001); Hobbs v. Hobbs, 75 Ark. App. 186, 55 S.W.3d 331 (2001); Thompson v. Thompson, 63 Ark. App. 89, 974 S.W.2d 494 (1998). Awards of joint custody have been reversed when it is apparent that the parties can no longer work together in raising their child. See Thompson, supra.

In support of her argument, Katrina points to the fact that she has been her daughter's primary caretaker for the majority of her life, and that it was Dr. Deyoub's opinion that custody of the child should be placed with her. While the fact that one parent has been the primary caretaker is relevant and should be considered in a custody determination, it is only one factor and is not determinative of which parent should be granted custody -- that decision must be based upon what is in the best interest of the child. Thompson, supra. Furthermore, while Dr. Deyoub was firm in his opinion that Katrina should be granted custody of the minor child in this instance, it was the trial court's responsibility to make that ultimate decision. The trial court had the opportunity to view each witness and to evaluate the credibility of each witness's testimony, and we defer to the trial court's assessment in these matters. The trial court was not bound to follow Dr. Deyoub's recommendation with regard to custody.

As evidenced by the parties' litigious history, the parties' relationship has deteriorated to a point that they either cannot or will not work together concerning the welfare of their daughter. They do not appear to be good candidates for joint custody. However, simply because these parties are not good candidates for joint custody does not mean that primary custody should be vested in Katrina. Unlike Word, supra; Hobbs, supra; and Thompson, supra, in which the parties were given joint custody with no party having primary physical custody, in the present case the parties were given joint legal custody, with Larry having primary physical custody. The trial court found that it was in the minor child's best interest for Larry to have primary physical custody. While joint custody is not an optimal solution for these parties, Larry has not cross-appealed the trial court's award of joint legal custody to ask for sole custody, and we will not grant relief where a party has not requested such relief.

This court held in Respalie v. Respalie, 25 Ark. App. 254, 257, 756 S.W.2d 928, 930 (1988):

[Judges] cannot always provide flawless solutions to unsolvable problems, especially where only limited options are available. Although the conditions in which these children are placed are not ideal, we cannot conclude that the [judge's] order does not more adequately provide for the welfare of these children than any option then available to him.

In this case, the trial judge was faced with two less-than-ideal situations -- the child had been sexually abused while in Katrina's care and Larry seemed to be alienating Katrina from the child. We cannot say that the trial judge's decision was clearly erroneous.

Affirmed.

Pittman, C.J., and Roaf, J., agree.