Delgado v. Delgado

389 S.W.3d 52, 2012 Ark. App. 100, 2012 Ark. App. LEXIS 210
CourtCourt of Appeals of Arkansas
DecidedFebruary 1, 2012
DocketNo. CA 11-779
StatusPublished
Cited by23 cases

This text of 389 S.W.3d 52 (Delgado v. Delgado) 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
Delgado v. Delgado, 389 S.W.3d 52, 2012 Ark. App. 100, 2012 Ark. App. LEXIS 210 (Ark. Ct. App. 2012).

Opinion

ROBERT J. GLADWIN, Judge.

| Appellee Swacy Delgado was awarded custody of the parties’ minor child, $1000 in alimony per month, and $2500 in attorney’s fees in the divorce decree filed in Pulaski County Circuit Court on April 8, 2011. Appellant Alfredo Delgado contends on appeal that the trial court erred in each instance. We affirm the trial court’s decree.

Appellant filed for divorce on April 15, 2010, claiming that the parties had married on April 15, 2005, and had a daughter born on July 9, 2007. Appellant asked for custody of the minor child. Appellee counterclaimed for separate maintenance on April 30, 2010, seeking exclusive use of the marital home and payment of her expenses. She sought custody and child support from appellant as well.

The parties entered into a temporary agreed order filed May 21, 2010, wherein they agreed to share joint custody, sharing equal time with the child. Appellant was awarded | ^temporary use and possession of the marital home and was ordered to continue to pay the parties’ bills.

On March 21, 2011, a final divorce hearing was held, and appellant testified that he believed it was in the best interest of his daughter to be in his custody. He claimed that he was more stable than his wife and that he was with his daughter on a constant basis. He testified that he and his daughter participate in many activities together and that he bathes her, feeds her, clothes her, takes her to her doctor’s appointments, and takes her to church. Appellant testified that he had concerns about appellee’s lifestyle and her ability to be a full-time parent. He asserted that, when appellee visits with the child, she spends too much time texting and sleeping and not paying attention to the child. Also, appellant testified that appellee left town to visit her boyfriend and was gone for days while not calling to check in with the child. Appellant asserted that he believed appellee had been unfaithful during the marriage because she contracted the herpes virus.

Appellee admitted to having a boyfriend, to maintaining a sexual relationship with this boyfriend, and that she believed appellant was a wonderful father. Appellee’s mother, Ramona Maldonado, testified on behalf of appellant, stating that appellant kept a clean home, had a good relationship with the child, and was the child’s primary care giver.

During her testimony, appellee stated that she should have custody of the child based upon appellant’s health problems. Further, appellee testified that when the child is in appellant’s care, the child’s hair is tangled, she is in diapers, and her fingernails and toenails are dirty and overgrown. Also, appellee testified she did not like the fact that the child slept with appellant and was not potty trained.

| (¡Appellant testified that since he had been married to appellee, he had been hospitalized and had a heart-valve replacement and a double or triple bypass. He admitted that when he had not eaten, he felt woozy and that appellee had witnessed those episodes. Appellant is a retired police officer and receives about' $3500 per month income and has $90,000 in an account in California that is solely in his name. Appellee works as a waitress.

Appellant and appellee met in an online chat room when appellee was approximately fifteen years old and appellant was approximately fifty years old. Appellee testified that she was intimate with appellant when she was sixteen years old, while her parents accompanied the couple on a vacation to Branson, Missouri. Appellant asserted that nothing inappropriate occurred while appellee was underage.

The trial court awarded custody of the minor child to appellee, awarded appellee $1000 per month alimony, and granted her request for attorney’s fees in the amount of $2500. The trial court found specifically as follows:

6. Findings as to Testimony and Evidence. The Court finds that both parties are fit parents.
The Court has considered the demeanor and credibility of the witnesses and finds that the [appellee] is a more credible witness than is the [appellant].
The Court bases its decision with respect to the granting of custody in part on the basis of the [appellant’s] behavior early in the relationship of the parties. The Court finds that the [appellant], who is presently 57 years of age, inappropriately contacted the [appellee], who is now 24 years of age, when the [appel-lee] was but fifteen (15) years of age and that he knowingly continued that relationship after learning of her minority in a manner that calls into question his judgment as it relates to all matters of his life. The Court finds that the behavior of the [appellant] in his relationship with the [appellee] while she was under the age of majority does not meet the standards adopted by the local community and is not such that he should be granted the custody of a minor child.

14Appellant filed a timely notice of appeal, and this appeal followed.

I. Custody

Our standard of review in child-custody cases is well established. We consider the evidence de novo but will not reverse unless the trial court’s findings are clearly erroneous or clearly against the preponderance of the evidence. Tribble v. Tribble, 2011 Ark. App. 407, 384 S.W.3d 574. Findings are clearly against the preponderance of the evidence when we are left with an irrefutable and express belief that a mistake has occurred. Id. We give due deference to the superior position of the trial court to view and judge the credibility of the witnesses. Id. This deference to the trial court is even greater in cases involving child custody, as a heavier burden is placed on the trial court to utilize to the fullest extent its powers of perception in evaluating the witnesses, their testimony, and the best interest of the child. Id. Child-custody cases are unique because there are no other cases in which the superior position of the trial court to assess witness credibility carries as much weight. Id. The primary consideration in child-custody cases is the welfare and best interests of the children; all other considerations are secondary. Id.

Appellant contends that the trial court erred in granting custody of the minor child to appellee. Appellant’s sole argument regarding this point on appeal is that the trial court failed to apply the best-interest standard in this case, as the trial court found that custody was being awarded to appellee based on the circumstances in which appellant met appellee. The trial court specifically found that appellee was a more credible witness regarding the facts of the | ¿early relationship of the parties. It is appellant’s contention that the trial court failed to consider the child’s best interest in awarding custody to appellee.

Appellee claims that the trial court correctly determined that it was in the child’s best interest that appellee be granted custody, and that appellant’s argument on appeal concerns only questions of fact and witness credibility, which fall within the trial court’s province. See Tribble, supra. We agree. We note that, in stating that appellant failed to adhere to the standards adopted by the local community, the trial court misstated the best-interest standard used in custody cases.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Varnell v. Griffin v. Arkansas Department of Human Services
2025 Ark. App. 298 (Court of Appeals of Arkansas, 2025)
Dakoda Baker v. Shelby Baker
2024 Ark. App. 331 (Court of Appeals of Arkansas, 2024)
Krystal Saul v. Jeremy Saul
2023 Ark. App. 251 (Court of Appeals of Arkansas, 2023)
J. Kirk Grynwald v. Ana Grynwald
2022 Ark. App. 310 (Court of Appeals of Arkansas, 2022)
Ashley Roper v. Travis O'Neal
2020 Ark. App. 431 (Court of Appeals of Arkansas, 2020)
Jackson v. Littleton
561 S.W.3d 352 (Court of Appeals of Arkansas, 2018)
Cooper v. Merwether
549 S.W.3d 395 (Court of Appeals of Arkansas, 2018)
Martens v. Blasingame
541 S.W.3d 492 (Court of Appeals of Arkansas, 2018)
Emis v. Emis
2017 Ark. App. 372 (Court of Appeals of Arkansas, 2017)
Cummings v. Cummings
2016 Ark. App. 375 (Court of Appeals of Arkansas, 2016)
Bennett v. Bennett
2016 Ark. App. 308 (Court of Appeals of Arkansas, 2016)
Whaley v. Beckham
2015 Ark. App. 675 (Court of Appeals of Arkansas, 2015)
Foster v. Foster
2015 Ark. App. 530 (Court of Appeals of Arkansas, 2015)
Starr v. Starr
2015 Ark. App. 110 (Court of Appeals of Arkansas, 2015)
Evans v. McKinney
2014 Ark. App. 440 (Court of Appeals of Arkansas, 2014)
Smithson v. Smithson
2014 Ark. App. 340 (Court of Appeals of Arkansas, 2014)
Dozier v. Dozier
2014 Ark. App. 78 (Court of Appeals of Arkansas, 2014)
Brimberry v. Gordon
2013 Ark. App. 473 (Court of Appeals of Arkansas, 2013)
Stuart v. Stuart
422 S.W.3d 147 (Court of Appeals of Arkansas, 2012)
Mann v. Arkansas Department of Human Services
415 S.W.3d 45 (Court of Appeals of Arkansas, 2012)

Cite This Page — Counsel Stack

Bluebook (online)
389 S.W.3d 52, 2012 Ark. App. 100, 2012 Ark. App. LEXIS 210, Counsel Stack Legal Research, https://law.counselstack.com/opinion/delgado-v-delgado-arkctapp-2012.