Bamburg v. Bamburg

386 S.W.3d 31, 2011 Ark. App. 546, 2011 Ark. App. LEXIS 584
CourtCourt of Appeals of Arkansas
DecidedSeptember 21, 2011
DocketNo. CA 10-1158
StatusPublished
Cited by14 cases

This text of 386 S.W.3d 31 (Bamburg v. Bamburg) 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
Bamburg v. Bamburg, 386 S.W.3d 31, 2011 Ark. App. 546, 2011 Ark. App. LEXIS 584 (Ark. Ct. App. 2011).

Opinion

JOHN B. ROBBINS, Judge.

| iThis is an appeal of a divorce proceeding heard in Pulaski County Circuit Court after twenty-two years of marriage between appellant Robert (Bob) Bamburg and appellee Lisa Bamburg. Bob appeals portions of the trial court’s order that (1) awarded primary custody of their two children to Lisa; (2) divided the parties’ business and personal property interests; and (3) failed to order Lisa to reimburse Bob the full amount of marital funds spent by her toward an adulterous relationship. Lisa cross-appeals the trial court’s denial of her request to “reconcile the parties’ joint checking account” and to order Bob to pay her half of his marital income diverted during the pendency of divorce. Each contends that the trial court’s findings bare clearly erroneous on their issues raised on appeal. We affirm on direct appeal on his first and third points, we reverse in part on his second point, and we affirm on her cross-appeal.

With regard to custody, the primary consideration is the welfare and best interests of the children involved; all other considerations are secondary. Hicks v. Cook, 103 Ark. App. 207, 288 S.W.3d 244 (2008). The factors a trial court may consider in determining what is in the best interest of the children include the psychological relationship between the parents and children, the need for stability and continuity in the relationship between parents and children, the past conduct of the parents toward the children, and the reasonable preference of the children. Rector v. Rector, 58 Ark. App. 132, 947 S.W.2d 389 (1997). On appeal, we perform a de novo review, but we will not reverse unless the findings are clearly erroneous. Taylor v. Taylor, 353 Ark. 69, 110 S.W.3d 731 (2003); Ross v. Ross, 2010 Ark. App. 497, 2010 WL 2404168. This necessarily turns in large part upon credibility determinations, and we give special deference to the superior position of the trial judge to evaluate the witnesses, their testimony, and the, children’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 children. Judkins v. Duvall, 97 Ark. App. 260, 248 S.W.3d 492 (2007).

With regard to property division, Ark.Code Ann. § 9-12-315 (Repl.2009) requires that the trial court divide marital property equally between the parties unless the trial court finds such a distribution inequitable. The statute requires the circuit court to consider the following factors when making an unequal division of marital property: (1) length of the |?,marriage; (2) the age, health, station in life of the parties; (3) occupation of the parties; (4) amount and sources of income; (5) vocational skills; (6) employability; (7) estate, liabilities, and needs of each party and the opportunity of each for further acquisition of capital assets and income; (8) contribution of each party in acquisition, preservation, or appreciation of marital property, including services as a homemaker; and (9) the federal income tax consequences of the court’s division of property. § 9-12-315(a)(1)(A). While the trial court must consider these factors and state its reasons for dividing property unequally, it is not required to list each factor in its order nor to weigh all the factors equally. Keathley v. Keathley, 76 Ark. App. 150, 61 S.W.3d 219 (2001). Appeals of property-division cases are also reviewed de novo; we will affirm unless the trial court’s findings are clearly erroneous. Hernandez v. Hernandez, 371 Ark. 323, 265 S.W.3d 746 (2007).

In this case, the parties married in 1988, separated in 2009, participated in a three-day divorce. hearing in June 2010, and were divorced by decree filed in July 2010. They bore two children, a daughter EB born in March 1995, and a son JB born in December 1996. Both parties sought to be granted a divorce from the other, wanted full custody of the children, and loved and cared for the children.

Multiple witnesses described each parent’s positive parental qualities. By all accounts, EB was a bright and pleasant teenage girl, and JB was a sweet, severely autistic pre-teen boy. Bob, an attorney with a private law practice and city-attorney position in Jacksonville, was an active participant in the children’s raising, but Lisa took the primary role in day-to-day activities for them. Lisa owned a small gift shop that was open only in November and 14Pecember each year, she worked on occasion as a contract laborer at UAMS, and she received dividends each year from her portion of stock in her family’s business.

Lisa testified in late 2009 at the temporary hearing, denying any romantic relationship with Mary Alice Hughes. Lisa and Mary Alice lied repeatedly at that hearing, acknowledging that they were very best friends but denying they were romantically involved. At the final hearing, Lisa admitted it fully, stating that it had begun in the summer of 2009 around the time of separation. She reasoned that she had not yet told their daughter and wanted to do that first. Lisa believed that Mary Alice was a good person who was good to her children. ' She denied that Mary Alice had moved in, but she agreed Mary Alice was present a lot of the time prior to the temporary hearing, spending the night at her home and traveling with her and the children.

At the end of the temporary hearing, the judge told the parties that Mary Alice was not to “be around” the children. Lisa said she obeyed that order but did not prevent contact by e-mail or text until her attorney informed her what the order actually recited. Lisa believed that she should be the primary custodian because she had served in that role their entire lives, and she was much more involved in every aspect of their raising. She believed the children, especially JB, were more content in her care than their father’s.

A psychological examination demonstrated that Lisa was a steady, balanced person, and that JB was nonverbal, required special attention, and was demonstratively secure with his mother. JB attended a school with special educational services and one-on-one attention. | ¡¡One of his teachers testified about JB’s day-today experiences and emotions since the divorce proceedings were initiated as well as the high level of care he required.

Regarding travel and entertainment expenses, Lisa agreed that she spent some but not a lot of marital funds during her and Mary Alice’s travels. Mary Alice testified that she (Mary Alice) paid for a good bit of their travel, and when Lisa charged items attributable to her (Mary Alice), she would reimburse Lisa for it. Mary Alice admitted that she lied about the nature of their relationship at the temporary hearing. She said that she had developed a friendly relationship with Bob and Lisa when their marriage was still intact, and she was involved in the same church before and after they separated. She maintained her own residence in North Little Rock and had a steady job, but she admittedly spent lots of time with Lisa and her children.

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Bluebook (online)
386 S.W.3d 31, 2011 Ark. App. 546, 2011 Ark. App. LEXIS 584, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bamburg-v-bamburg-arkctapp-2011.