Rasberry v. Rasberry
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Cite as 2009 Ark. App. 594
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CA09-49
Opinion Delivered
September 16, 2009
APPEAL FROM THE JEFFERSON
COUNTY CIRCUIT COURT
[DR-2007-1096-3]
CLAYRON RASBERRY
APPELLANT
HONORABLE WILLIAM W.
BENTON, JUDGE
V.
ANESSA RASBERRY
APPELLEE
AFFIRMED
DAVID M. GLOVER, Judge
Appellant, Clayron Rasberry, argues that the trial court erred (1) in placing custody
of the parties’ minor son with appellee, Anessa Rasberry, and (2) in disposing of certain real
property. We affirm.
A temporary hearing was held on the issue of custody of the parties’ minor child.
Finding neither party unfit and specifically qualifying the ruling to be subject to change at the
final hearing, the trial court granted temporary custody to Clayron. The temporary custody
award to Clayron turned on a May 7, 2007 incident involving Anessa’s employment at
UAMS. That day she was told by her supervisor she was not going to be able to continue
her employment in the science laboratory where she worked. Though the supervisor denied
using the word “terminated” and testified she was satisfied with Anessa’s work and wanted
Cite as 2009 Ark. App. 594
to help her find another position, it was Anessa’s position that her supervisor had told her she
was terminated. Immediately following the May 7 conversation, Anessa left the building and
went to her car, where her supervisor later found her sitting in the driver’s seat rocking back
and forth, nonresponsive to verbal communication. Her supervisor thought that Anessa was
having some type of anxiety attack and called for paramedics and the police. It was reported
that Anessa had then stated that she was going to kill herself and her children; however, none
of the witnesses at the temporary hearing testified to hearing Anessa make those statements.
As a precaution, Anessa was taken to the hospital, and was okay.
Anessa admitted that the May 7 incident had happened, and that it was an anxiety
attack. She stated she received no follow-up treatment after the incident because she was
advised that she was “fine.” Anessa blamed the anxiety attack on a combination of the stress
from Clayron, which included bringing his fifteen-year-old son from a previous marriage into
the home without consulting her and expecting her to care for him in addition to her son
from a previous relationship and the parties’ child, as well as the news that her supervisor was
terminating her.
The trial court awarded temporary custody to Clayron. While noting that it was
understandable that Anessa was upset over being informed that she was being terminated, the
trial court stated that it could not understand why Anessa’s conduct rose to a level where first
responders and police officers were called out. The trial court reasoned that while Anessa had
admitted to Clayron that she did not handle stress well, everyone has to deal with stress at one
point or another, and that you have to keep going and do the best you can do. Noting that
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it had not heard that Clayron had trouble dealing with stress, under the circumstances, the
trial court awarded temporary custody to Clayron.
At the final hearing, the only issues before the trial court were permanent custody of
the parties’ minor son and division of the residence in which the parties lived during the
marriage.
Prior to the final hearing, the trial court ordered both parties to undergo
psychological evaluations. These were sent to the trial court and made part of the record as
the court’s exhibit. At the close of all the testimony, the trial court took the case under
advisement.
The trial court issued a letter opinion on September 10, 2008, citing the court-ordered
psychological and custody evaluations of both parties, the trial court’s notes and the file,
finding that the evidence preponderated in favor of awarding full custody of the parties’ child
to Anessa. In a second letter dated September 12, 2008, the trial court added these remarks:
both parents were fit and proper parents, the trial court’s opinion was based upon the best
interest of the parties’ minor child, and no specific findings of fact or conclusions of law were
noted in the letters because the hearing was closed.
Clayron requested that the trial court make specific findings of fact and conclusions of
law, and on September 19, 2008, the trial court held a closed hearing for that purpose. In
that hearing, the trial court stated that the parties were both fit and proper parents, appeared
to be moral persons of character, were generally stable, and had extended family members
who could assist them. It also noted that while Anessa was terminated from her employment
at UAMS, it was only for a temporary period of time, and that she was currently still
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Cite as 2009 Ark. App. 594
employed at UAMS in her original position. It noted that Clayron’s employment with the
railroad required him to be away from home from time to time, while Anessa’s employment
did not require her to travel. The trial court noted that it was not bound by the courtordered evaluations of the parties; that it determined the weight to be accorded to the
evaluations. The trial court then recited the summary of the findings of the evaluations:
We find that both Clayron and Anessa Rasberry show capacity to be good parents.
We also find that both have significant issues in terms of anxiety, stress, and anger
management. However, Mr. Rasberry’s problems in these areas seem greater than
those of Anessa Rasberry. Therefore, it is our recommendation that custody of [the
minor child] go to his mother with [his] father having liberal visitation privileges. It
is also our recommendation that both parents seek therapy for issues concerning
anxiety and anger management.
The trial court noted that each party’s evaluation discussed the incident concerning Anessa’s
being fired from her job at UAMS, problems in the marriage, each party’s background and
medical history, and why each party thought they were a better custodial parent, and
concluded with the examiners’ impressions. The trial court found that, when the evaluations
were given the appropriate weight, the evidence preponderated in Anessa’s favor.
Custody
Clayron argues that the trial court erred in awarding custody of the parties’ minor child
to Anessa instead of him. Specifically, he argues that the apparent anxiety attack Anessa
experienced, coupled with the fact that she failed to seek counseling for the incident,
“militates the conclusion that the circuit court’s decision does not serve [the child’s] best
interests.” We disagree.
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Cite as 2009 Ark. App. 594
In Sheppard v. Speir, 85 Ark. App. 481, 489, 157 S.W.3d 583, 588 (2004) (citations
omitted), this court recited its well-settled standard of review for child custody:
In reviewing child-custody cases, we consider the evidence de novo, but will not
reverse the trial court’s findings unless they are clearly against the preponderance of the
evidence. 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. 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 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. In custody cases, the primary consideration is the welfare and best
interest of the child involved, while other considerations are merely secondary.
In his brief, Clayron states that while he does not necessarily dispute the trial court’s
determination that, in this particular case, the question of the child’s best interests hinges upon
which parent experiences greater problems with anxiety, stress, and anger management, he
does dispute the conclusion that his problems with anxiety, stress, and anger management are
greater than those of Anessa and that the award of custody to Anessa serves the child’s best
interests. This argument seems to be based upon the fact that Anessa experienced an anxiety
attack on May 7, 2007, and did not seek further treatment or counseling for the incident,
while he has not experienced such an attack. The May 7 incident was thoroughly addressed
throughout these proceedings and in both parties’ psychological evaluations, as well as in this
opinion. There is no evidence that the May 7 incident was anything other than an isolated
event experienced by Anessa. The psychological examiners, with full awareness of the
incident, recommended that custody of the parties’ child be placed with Anessa. The trial
court, being in the best position to evaluate the parties, viewed each party’s demeanor, heard
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all of the evidence in this case, and set forth a detailed and thoughtful analysis for its decision
to grant custody to Anessa. We cannot say that the trial court’s decision was clearly against
the preponderance of the evidence.
Residence During Marriage
Clayron also argues that the trial court erred in its disposition of the parties’ real
property. While the parties agreed on the disposition of all other property, they asked the
trial court to dispose of the residence in which they lived during the marriage. While
specifically conceding that the residence was Anessa’s separate, nonmarital property, Clayron
contends that the trial court erred in not considering “his contribution to the marital residence
in its disposition of the property.” Clayron points to testimony from Brian Castle, a realestate mortgage-loan officer at the Pine Bluff Cotton Belt Federal Credit Union, that the
property was sold at a discount by Clayron’s sister-in-law as an early wedding gift. His
testimony was that the loan, although in Anessa’s name, would not have been made without
Clayron, as he was the credit-union member and his salary was also considered when making
the loan. He stated the loan was made with the understanding that the parties would be
married. Clayron offers these reasons why the trial court should have awarded him some of
the equity in the residence as compensation for his contributions to the residence.
With respect to the division of property in a divorce case, the appellate courts review
a trial court’s findings of fact and affirm them unless they are clearly erroneous. Powell v.
Powell, 82 Ark. App. 17, 110 S.W.3d 290 (2003). In Powell, the husband owned a farm prior
to marriage that was subject to a mortgage of $141,508 at the time of marriage, and that debt
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was reduced to $5,800 at the time of the divorce. The trial court awarded the wife one-third
of the reduction of the indebtedness; on appeal, she argued that the trial court erred in not
awarding her one-half of the reduction in indebtedness. The appellate court affirmed the trial
court, holding that
[i]t is true that there is a presumption that an increase in the value of nonmarital
property resulting from the time, efforts, and skill of a spouse is regarded as a marital
asset. However, a mere reduction in a single item of indebtedness is not the same
thing as an increase in the overall value of the property, which would require evidence
of the fair-market value of the farm both before and after the marriage. There is
evidence in the present case regarding the value of the farm at the time of the divorce,
but we find nothing in the record that would allow the trial judge to determine the
premarital value of the farm. Without evidence of the before-and-after value of the
property to show the existence and extent of any increase in the value of the
nonmarital property, any reduction in debt on nonmarital property is not considered
to be marital property to be divided equally; instead, the non-owning spouse is simply
entitled to have the martial contribution considered in balancing the equities involved
in the property division.
82 Ark. App. at 19-20, 110 S.W.3d at 292 (citations omitted).
In this case, Clayron placed into evidence a letter from his sister-in-law, Toni
Middleton Rasberry, stating that the last appraised value, to her knowledge, was
approximately $99,000, and that the property was being sold to Anessa Haney for the
discounted price of $88,000 as an early wedding gift. This letter was written in January 2005,
approximately two months before the parties’ marriage in March 2005. This was the only
evidence of the value of the residence prior to the marriage. No evidence was presented as
to the value of the residence at the time of the parties’ divorce, nor was there any evidence
of the amount of reduction of indebtedness. However, Anessa testified that she paid 99.9%
of the bills. Clayron argues in his reply brief that because the parties settled all other property
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and debt-related issues between themselves, the trial court never had the opportunity to
consider his marital contribution to the residence, and he submits that this court should
remand the case to the circuit court to take evidence as to the value of the property during
the relevant time periods. We disagree. Clayron had an opportunity to submit evidence to
the trial court regarding his contributions to the nonmarital real property that served as the
parties’ residence during the marriage, and he failed to due so. Given that failure of proof,
we cannot say that the trial court erred in awarding Clayron no financial benefit from the
residence.
Affirmed.
G LADWIN and H ENRY, JJ., agree.
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