Black v. Black

2015 Ark. App. 153, 456 S.W.3d 773, 2015 Ark. App. LEXIS 181
CourtCourt of Appeals of Arkansas
DecidedMarch 4, 2015
DocketCV-14-638
StatusPublished
Cited by13 cases

This text of 2015 Ark. App. 153 (Black v. Black) 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
Black v. Black, 2015 Ark. App. 153, 456 S.W.3d 773, 2015 Ark. App. LEXIS 181 (Ark. Ct. App. 2015).

Opinion

KENNETH S. HIXSON, Judge

11 This is an appeal between divorced parents over custody of their child WWB, born in January 2008. Appellant Jessica Black and appellee Brentley (“Brent”) Black were married in 1999 and were divorced by a decree issued by the Clark County Circuit Court in April 2014. The parties each sought primary custody of the child, although they shared approximately equal time with the child following separation in May 2013 until their divorce. After a full day’s hearing in March 2014, the trial court awarded primary custody to Brent, and Jessica appeals, arguing that the trial court clearly erred in granting custody to Brent and not her, or alternatively, in not awarding joint custody. We hold that the trial court did not clearly err and affirm.

With regard to custody and visitation, the primary consideration is the welfare and best interest of the child involved; all other considerations are secondary. Baber v. Baber, 2011 Ark. 240, 378 S.W.3d 699; Hicks v. Cook, 103 Ark. App. 207, 288 S.W.3d 244 (2008). 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 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 children. Judkins v. Duvall, 97 Ark. App. 260, 248 S.W.3d 492 (2007). We do not reverse unless there is clear error, meaning that after conducting de novo review we are left with a definite and firm conviction that a mistake was made. Hollinger v. Hollinger, 65 Ark. App. 110, 986 S.W.2d 105 (1999).

Factual Baclcground and Testimony

The parties lived in Arkadelphia, where each went to college at Ouachita Baptist University and each attained accounting degrees. Each party had a full-time job, although Jessica was a stay-at-home mother for a period of time after WWB’s birth. By the date of the divorce hearing in March 2014, a substantial portion of the sizable marital assets and debts were divided by agreement of the parties. The remainder of the marital assets was subject to litigation and equitably divided. The division of assets and debts and the award of alimony are not at issue on appeal. The parties agreed that Brent would remain in the marital home, where the parties lived almost all of WWB’s life. This was where WWB had his room, toys, | Rand pets. During the parties’ separation, Jessica had moved to the parties’ houseboat where she resided until the divorce.

The trial court heard testimony from Jessica and Brent along with Jessica’s best friend Rebecca Davidson, Brent’s mother Elaine Black, and Michael Connely, a friend of the parties. At the conclusion of the evidence, the trial judge recessed court but returned the same day to issue his ruling from the bench. He noted that because these were both loving, caring parents, the custody decision was harder.

Jessica testified that she was a stay-at-home mother to WWB for about the first three years of his life, and then she returned to part-time employment. She returned to full-time employment when WWB was age five. WWB went to daycare sporadically when Jessica worked part time, and he attended daycare full time when she went to full-time work. WWB started kindergarten in August 2013.

Jessica testified she took their son to swimming lessons, karate lessons, birthday parties, play dates, church activities, and did the typical care taking for WWB when she was home with him. Jessica testified that she took WWB to church and said that she actively worked toward WWB having a sound religious upbringing. Jessica stated that her extended family lived in Iowa and that her full-time job provided five vacation days annually, which she would use if WWB became ill. She also testified that her employer permitted her to have WWB with her at the office.

Jessica agreed that she and Brent had similar disciplinary styles with WWB, taking away privileges, giving rewards, or sometimes spanking. Jessica stated that although Brent was a |4good parent who loved his son, she did have some concerns. She claimed that Brent did not always put WWB in a booster seat when they were in the car, and she also believed that Brent would text while driving. She said that Brent was not as good about making sure WWB was wearing a life jacket when on the water, even though she agreed WWB was a good swimmer. She worried about Brent letting WWB ride in a car with another parent who had been diagnosed with epilepsy.

Jessica acknowledged that she and Brent had disagreements over simple things like WWB’s clothing, shoes, haircuts, and which church WWB was permitted to attend. She said Brent was nitpicking and controlling. She was displeased with how cold and standoffish Brent was to her in front of WWB, one time even yelling at her and calling her a “psycho.” Jessica alleged that many years prior, Brent verbally abused her and physically held her down against her will.

Jessica testified that she had made a mistake of having an affair during the marriage, but she attempted to explain that it was a consequence of all the hurtful things Brent had said to her and how he rejected her. The man with whom she had the affair also had a houseboat near theirs. The evidence indicated that WWB had met the man with whom she was having the affair.

Jessica told the trial judge more than once, “I am asking for custody of WWB.” She also said that she had no plans to move away from Arkadelphia, although she needed to find a house once she knew how the marital estate would be divided. She agreed that people suggested that she move to Dallas to be near her mother, but she did not want to do that | ¡^because that would compromise Brent’s time with WWB. She said that she was willing to work out a visitation schedule so that Brent saw WWB as much as possible. Jessica’s testimony indicated that Brent was hard to work with on even little issues, so she most often gave in to his wishes.

On cross-examination, Jessica admitted that she was tardy getting WWB to school a few times, and there were quite a few times that she was behind schedule in picking WWB up from school. She explained that everyone makes mistakes as parents sometimes. She denied Brent’s allegation that she left WWB alone on the houseboat for about thirty minutes, denied drinking when WWB was with her on the houseboat, and when WWB had his life jacket off, she said that he was not following her rules. Jessica agreed that WWB charged about $1000 on a credit card on her iPad while he was in her care, but she did not realize that her password remained open on her computer while he was playing with it.

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Bluebook (online)
2015 Ark. App. 153, 456 S.W.3d 773, 2015 Ark. App. LEXIS 181, Counsel Stack Legal Research, https://law.counselstack.com/opinion/black-v-black-arkctapp-2015.