Atkinson v. Atkinson

32 S.W.3d 41, 72 Ark. App. 15, 2000 Ark. App. LEXIS 758
CourtCourt of Appeals of Arkansas
DecidedNovember 29, 2000
DocketCA 00-88
StatusPublished
Cited by12 cases

This text of 32 S.W.3d 41 (Atkinson v. Atkinson) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Atkinson v. Atkinson, 32 S.W.3d 41, 72 Ark. App. 15, 2000 Ark. App. LEXIS 758 (Ark. Ct. App. 2000).

Opinion

JOSEPHINE LINKER Hart, Judge.

Steven Daniel Atkinson appeals the divorce decree that awarded appellee primary physical custody of the parties’ younger child and approximately two-thirds of the disputed marital property.1 Appellant argues that the chancellor’s findings that it was in the younger child’s best interest that his custody be awarded to appellee and that it was equitable to award appellee more than one-half of the marital property were clearly erroneous. We disagree with appellant and affirm.

The parties were married in 1981, and during the early years of the marriage they lived in Georgia, where appellant attended college and worked full-time. Appellee also worked during this period of time as a dental assistant, but she stopped attending college after a year and one-half. In 1986, appellant received his undergraduate degree and the parties’ first child was born. Appellant’s work required that he travel often, and, consequently, the parties reached an arrangement whereby appellee would stay home with their child and forego full-time employment. This was also the period of time that the marriage became more troubled. The parties nevertheless proceeded to have a second child in 1991, and appellee continued to remain at home while appellant continued to travel as a part of his job. The parties'moved to Magnolia, Arkansas, and appellant began working as a national sales manager for Alcoa. Despite his success at work, appellant’s marriage still suffered because of his job-related traveling. In fact, during the course of the marriage the parties separated on four occasions despite the parties’ consultations with a series of marriage counselors. Nevertheless, the marriage continued to suffer, and during the last two months of the marriage, the parties slept in separate parts of their house.

The parties ultimately separated on October 11, 1998, and appellant filed his complaint on October 15, seeking an absolute divorce from appellee on the grounds of general indignities and custody of the parties’ two minor children — Dane, who was born October 15, 1986, and Michael, who was born July 4, 1991. Appellee answered by denying that appellant was entitled to a divorce and counterclaimed seeking custody of both children along with an award of child support.

Following the commencement of the divorce proceedings, appellee retained custody of the parties’ minor children, and appellant began a relationship with woman who was a coworker and had separated from her husband five days prior to the parties’ separation. She did not think her relationship with appellant was morally wrong because the parties were separated. Ultimately, this relationship became sexual, and appellant and this woman on occasion appeared as a couple. Appellant also frequently brought the children to this woman’s house and along with her five-year-old daughter, they would often cook, play games, and watch movies late into the evening.

On February 23, 1999, appellant filed a motion to hold appel-lee in civil contempt of court for violating the chancery court’s standing order prohibiting the parties from harassing one another. Appellee answered by denying that she violated the order. The parties setded the issue and jointly approved an agreed order that was filed March 15, 1999, and, inter alia, awarded appellant primary physical custody of Dane and appellee primary physical custody of Michael. This was done, according to appellee, with the hope that appellant’s influence would help Dane’s behavior and raise his grades at school.

Several days thereafter, appellant took both of the children to a party that was attended mainly by his friends and coworkers. The party was at his paramour’s house, and although alcohol was consumed by those who were there, those who were present and testified generally agreed that no one at the party consumed an excessive amount of alcohol. While at the party, appellant experienced an allergic reaction that required' he be taken to the hospital and stay there overnight. The children, however, remained at the party and were supervised by an unmarried couple while appellant remained in the hospital. Although this couple allegedly did not have sexual relations while supervising the children, they did sleep together for approximately two hours while the children slept in a different room.

The matter was tried on May 12, 1999, wherein the chancellor considered all the outstanding issues, including those issues raised in appellee’s counterclaim that she filed the previous day for an absolute divorce on the grounds of adultery, seeking alimony and an unequal division of the marital property. The chancellor took the matter under consideration, and in a letter opinion, inter alia, the court found that it was in Michael’s best interest that his custody be awarded to appellee and that it would be equitable to distribute seventy-five percent of the marital property to appellee. This appeal is taken from the order that embodied the chancellor’s letter opinion.

On review of this chancery matter, “the whole case is open for review; therefore, all issues raised in the court below are before us for decision, and trial de novo on appeal in chancery involves determination of both fact questions and legal issues.” Bradford v. Bradford, 34 Ark. App. 247, 248, 808 S.W.2d 794, 795 (1991). See also Ferguson v. Green, 266 Ark. 556, 564, 587 S.W.2d 18, 23 (1979); Lewis v. Lewis, 255 Ark. 583, 502 S.W.2d 505 (1974); Nolen v. Harden, 43 Ark. 307 (1884). On de novo review, however, we will reverse only on grounds properly argued by an appellant. See, e.g., Country Gentlemen, Inc. v. Harkey, 263 Ark. 580, 569 S.W.2d 649 (1978). Moreover, we will affirm the chancellor’s findings unless the findings are clearly erroneous. See Ark. R. Civ. P. 52(a); see also Adkinson v. Kilgore, 62 Ark. App. 247, 970 S.W.2d 327 (1998). “A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Smith v. Parker, 67 Ark. App. 221, 224, 998 S.W.2d 1, 3 (1999).

I. Custody of Michael

Appellant argues that the finding that it was in Michael’s best interest that his custody be awarded to appellee was clearly erroneous because it was contrary to the rule expressed in Johnston v. Johnston, 225 Ark. 453, 456, 283 S.W.2d 151, 153 (1955), that “[u]nless exceptional circumstances are involved, . . . young children should not be separated from each other by dividing their custody.”2 It is true that in Arkansas this rule is considered to be “settled case law . . . Ketron v. Ketron, 15 Ark. App. 325, 329, 692 S.W.2d 261, 264 (1985) (citing Vilas v. Vilas, 184 Ark. 352, 42 S.W.2d 379 (1931)).

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Bluebook (online)
32 S.W.3d 41, 72 Ark. App. 15, 2000 Ark. App. LEXIS 758, Counsel Stack Legal Research, https://law.counselstack.com/opinion/atkinson-v-atkinson-arkctapp-2000.