Gibson v. Gibson
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Cite as 2010 Ark. App. 741
ARKANSAS COURT OF APPEALS
DIVISION II
CA10-388
No.
Opinion Delivered
WENDY K. GIBSON
APPELLANT
November 3, 2010
APPEAL FROM THE BENTON
COUNTY CIRCUIT COURT
[NO. CR-2009-1147-6]
V.
HONORABLE R. DOUGLAS
SCHRANTZ, JUDGE
BRIAN T. GIBSON
APPELLEE
AFFIRMED
RAYMOND R. ABRAMSON, Judge
Wendy and Brian Gibson were married in May 2007. In July 2009, Wendy filed for
divorce and Brian counterclaimed. The couple had two children during the marriage—twins
who were two years old at the time of the divorce hearing. Both parents requested custody
of the minor children. After hearing the testimony of both parties and the maternal and
paternal grandmothers, the trial court entered a decree of divorce, awarded custody of the
children to Brian, and granted liberal visitation to Wendy. Wendy appeals the trial court’s
order awarding Brian custody of the parties’ minor children. She contends that the trial
court’s decision ignored important evidence, was based on incorrect findings of fact, and was
clearly erroneous.
Cite as 2010 Ark. App. 741
We review child-custody cases de novo, but we will not reverse a circuit court’s
findings unless they are clearly erroneous. Ross v. Ross, 2010 Ark. App. 497. A finding is
clearly erroneous when the reviewing court, on the entire evidence, is left with the definite
and firm conviction that a mistake has been committed. Ford v. Ford, 347 Ark. 485, 65
S.W.3d 432 (2002). Because the question of whether the circuit court’s findings are clearly
erroneous turns largely on the credibility of the witnesses, we give special deference to the
superior position of the trial judge to evaluate the witnesses, their testimony, and the child’s
best interest. Sharp v. Keeler, 99 Ark. App. 42, 256 S.W.3d 528 (2007). There are no cases
in which the superior position, ability, and opportunity of the trial judge to observe the
parties carry as great a weight as those involving minor children. Bailey v. Bailey, 97 Ark.
App. 96, 244 S.W.3d 712 (2006). The primary consideration in child-custody cases is the
welfare and best interests of the child involved; all other considerations are secondary. Hicks
v. Cook, 103 Ark. App. 207, 288 S.W.3d 244 (2008).
The trial court in this case made the following findings with respect to child custody:
a.
That after the parties separated, the Plaintiff did little to improve herself and
only made a couple of inquiries in looking for employment.
b.
That it was the “family plan” for the Plaintiff to go back to work, and that the
Defendant’s parents came here to the state of Arkansas to provide child care
in furtherance of that plan. However, Plaintiff did nothing to carry out this
plan.
That Plaintiff announced she would be moving to Tucson, Arizona, to be near
family, however Plaintiff had no job, none was produced, and no indication
of a job.
c.
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Cite as 2010 Ark. App. 741
d.
That the Plaintiff stated that she would stay here in the state of Arkansas and
not move if the Defendant was awarded custody.
e.
That the Court finds that the parties suffered financial stress, and that a serious
effort was made by Defendant to make up for his job loss, but the Plaintiff did
not contribute to the marital unit financially, and was unemployed since the
birth of the minor children, including through the time of separation.
f.
That the Defendant, after being laid off from his employment with Wal-Mart
in February 2009, set up a business and created substantial debt to set up a
freelance photography business, which has produced him work, and his
primary client is with Wal-Mart, and therefore, it is not plausible for him to
relocate from Benton County, Arkansas.
g.
That Benton County, Arkansas is the birthplace of the minor children and
they have lived here all of their young lives.
h.
That the Plaintiff has said she wanted the Defendant to participate in the
children’s lives, but the Court found it concerning that when the Defendant
stayed home with the minor children after being laid off, that the Plaintiff
found the children were getting “too attached” to the Defendant and that he
needed to “make himself absent from the home.” The Defendant complied
with this request and would come back later in the day.
i.
That the court further found concerning that after the parties had separated,
the Plaintiff would not let Defendant in the van to see the minor children
when they were attending a doctor appointment on behalf of the children, nor
would she allow the Defendant to trick or treat with the minor children, on
a day that they had previously agreed to do so together.
j.
Further, the Court finds that her move to Tucson, Arizona would create
separation from the father, which would be very hard on the minor children,
if not devastating.
k.
That the Court further finds that this relocation to Tucson, Arizona has no real
reason for the relocation expressed. The polestar factor to determine custody
regarding the minor children is with regard to the best interest of the minor
children, and the Court finds that the most significant factor is if a custodial
parent is willing to share the minor children and it be meaningful, and allow
setting aside of animosity, and allow meaningful long term relationship
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Cite as 2010 Ark. App. 741
between the non-custodial parent and the minor children. Further, the
custodial parent is responsible for communication with the non-custodial
parent, and for allowing participation with the non-custodial parent and the
minor children.
l.
Based on these findings of fact, the Court finds that it is in the best interest of
the minor children that the custody be vested in the Defendant, Brian Gibson,
subject to the Plaintiff’s reasonable and liberal visitation, which at a minimum
should be in accordance with this Court’s standard visitation schedule, which
is adopted herein as though set forth word for word.
Here, the trial court was obviously concerned that Wendy was requesting custody of
the children without any plan as to how she would financially support them. At the time of
the hearing, Wendy was currently unemployed, and did not have any prospect of
employment either in Northwest Arkansas or in Tucson, Arizona, where she wished to
relocate.
The trial court’s award of custody was not, as suggested by appellant, a punishment
for her decision to stay at home with her children—a laudable decision under most
circumstances; rather, the trial court’s award merely reflected its concern that, if awarded
custody, Wendy was not prepared to financially support her children and had failed to
demonstrate a pressing need to do so. This finding was further supported by Wendy’s
testimony at the hearing that the extent of her future plans was to relocate with the children
to Tucson, Arizona, where she intended to live with her mother until she found other
housing, and where her mother would, at least initially, provide for her financially while she
began her search for employment. She admitted that she did not know whether she would
be able to get a job in Arizona and had not even attempted to find a job there.
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Cite as 2010 Ark. App. 741
The court also found that Wendy’s proposed move to Tucson would create separation
from Brian, which would be very hard on, if not devastating to, the children. Because Brian
had incurred substantial debt setting up his business in Northwest Arkansas and, because his
primary client, Wal-Mart, is based in Northwest Arkansas, it would not be plausible for him
to relocate to Tucson to be nearer to the children. Although Wendy testified that she would
do everything possible to promote the children’s relationship with Brian, she did not provide
any plan as to how visitation would be effectuated over such a long distance—i.e., who
would do the traveling and who would bear the expenses of the trip. And the court was
further concerned about Wendy’s ability to overcome her animosity toward Brian and allow
Brian meaningful contact with the children given the fact that she had limited his contact
with them on previous occasions when she was upset with him.
Brian, on the other hand, actively looked for employment after being laid off from
his job at Wal-Mart. He started his own business and actively recruited and pursued clients.
He currently has an income, and he detailed to the court how he would care for the children
in the event he had to travel out of town for work. And, as Wendy stated that she would
remain in Northwest Arkansas if Brian was granted custody of the children and as there is no
impediment to her doing so, this arrangement would allow the children to maintain a
meaningful relationship with both parents.
Wendy also claims that the trial court failed to consider that Brian’s mother will not
be able to care for the children long-term because of her health issues and that Brian’s job
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Cite as 2010 Ark. App. 741
will require him to travel often with the children, thereby denying them a stable
environment. However, Brian’s mother testified that, while she and her husband had some
health issues, those issues would not prevent her from taking care of the children. If at some
future time this does become an issue, Wendy can petition for modification assuming she can
prove that the alternative arrangements secured by Brian are not in the best interests of the
children. As for the significance of Brian’s travel, Brian testified that he did not intend to
travel once the children were in school and that he planned to hire another photographer to
travel for him. Moreover, the divorce decree stated that, if Brian had an activity which
required him to be away from the children for more than (4) hours and would require child
care from some other person, be it a family member or some third party, Wendy would have
the first opportunity to have the children with her.
Wendy next argues that the trial court did not take into account Brian’s temper when
awarding custody. While Wendy testified to several instances in which Brian lost his temper,
she also testified that he is a good father and she did not believe that he would hurt the
children when they were in his care. Wendy’s other disagreements with the court’s findings
fall within the trial court’s province to make credibility determinations. It is not our role but
that of the trial judge to evaluate the witnesses, their testimony, and the children’s best
interests.
The facts in this case make it a difficult one. Both parties are clearly good parents who
love their children, and either is capable of being the primary caregiver. Even if we might
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Cite as 2010 Ark. App. 741
have decided this case differently, based on this record, the trial court’s decision awarding
custody to Brian is not clearly erroneous. Accordingly, we affirm the trial court’s order.
H ENRY and B ROWN, JJ., agree.
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