Hobbs v. Hobbs

55 S.W.3d 331, 75 Ark. App. 186, 2001 Ark. App. LEXIS 683
CourtCourt of Appeals of Arkansas
DecidedOctober 3, 2001
DocketCA 01-13
StatusPublished
Cited by2 cases

This text of 55 S.W.3d 331 (Hobbs v. Hobbs) 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
Hobbs v. Hobbs, 55 S.W.3d 331, 75 Ark. App. 186, 2001 Ark. App. LEXIS 683 (Ark. Ct. App. 2001).

Opinions

L. GRIFFEN, Judge.

This appeal concerns a divorce decree that granted joint custody of fifteen-month-old Jacob Hobbs, with alternating weeks of physical custody, to his parents, appellant Heather Marie Hobbs and appellee Tad Oliver Hobbs. Appellant contends that joint custody was not warranted based on the evidence presented at trial. We agree that the record demonstrates that at the time of the final hearing the parties were not working in concert to reach shared decisions regarding the child. Accordingly, we reverse and remand this case to the chancellor for further action consistent with this opinion.

The parties separated after approximately one year of matrimony and two months following Jacob’s birth.1 Appellee filed a petition for legal separation, and appellant counterclaimed for divorce. In her counterclaim, appellant requested full custody of Jacob.

At a temporary hearing, the chancellor ordered joint custody with the parties alternating physical custody of the child weekly. The chancellor also ordered the parties to exchange Jacob on Mondays at a business parking lot in Magnolia.2 She directed the parties to cooperate concerning Jacob’s care and well being and to provide each other with a list of foods, types of diapers used, medicines, and any other information needed to ensure his proper care. This arrangement continued from the date of the temporary hearing until the final hearing. The chancellor also ordered the parties to enter into individual and joint counseling to help them get along and focus on the best interest of their child. Because the parties could not agree on a counselor, the court ordered the parties to seek consultation with Dr. Mike Fitts.

A final hearing occurred on August 16, 2000. During the hearing, appellant testified that she was twenty-two years of age, lived in Magnolia with her parents, and that she currently worked and attended school. She complained that appellee did not participate in the exchange of the child. As a result, appellant testified that she was forced to interact with her mother-in-law, with whom she has an acrimonious relationship.

Although the court ordered the parties to communicate on a weekly basis, appellant testified that she had to give written correspondence to appellee’s mother, who would read the correspondence and react negatively if she did not agree. Appellant also testified that she had tried, to no avail, to get appellee to participate in the exchange, but that when she tried to call him, he told her never to call him again and to speak with his lawyer. She acknowledged that she attended two individual sessions after the court ordered counseling, but admitted that she did not attend joint counseling sessions as ordered. Appellant contended that the joint custody arrangement was not working toward Jacob’s best interest because appellee did not correspond with her weekly and did not participate in the exchange.

The chancellor also heard testimony from Jacob’s pediatrician, Dr. Amy Albin, who confirmed that Jacob suffered from eczema, an allergic skin disorder, and that due to Jacob’s sensitive skin, he was more prone to diaper rash. However, Dr. Albin testified that she saw nothing that indicated Jacob was not properly cared for, and that overall, Jacob was a healthy child.

Appellant’s sister, Brandi Young, echoed the sentiments of appellant that there were problems in the exchange. Another witness, Ann Bridges, testified that appellant was an attentive parent. In addition, appellant’s father, Dr. James Young, testified that appellee never participated in the custody exchange, but instead played softball.

Appellee testified that he was twenty-six years of age and lived in El Dorado with his parents. He admitted that he had not tried to communicate with appellant since the temporary hearing and further reported that appellant only telephoned him twice in over a one-year period. Appellee stated that when he and appellant went to the counseling session, he suggested to the counselor that they initially undergo individual counseling. The counselor met with the couple separately on two different occasions, but was unable to complete a joint counseling session because appellant did not show up. Appellee testified that he participated in two exchanges with appellant in the time period between the temporary hearing and the final hearing. He stated that he had no definite working hours, and that he was on call on alternate weeks. Appellee testified that he participated in a church softball league, and that his mother kept his son while he worked or played softball. He relayed that it was “too fast” for him and appellant to have any communication, and it was hard for him to stomach the exchanges.

Appellee’s mother, Louise Hobbs, also testified at the hearing. She told the court that she and her husband exchanged Jacob with appellant because of appellee’s work schedule. Louise Hobbs testified that the circumstances surrounding the joint custody could be better, that the custody was going as well as could be expected under the circumstances, and that joint custody would be a problem when Jacob reached school age. She also acknowledged that she and appellant had problems communicating.

Also testifying on behalf of appellee were Jana Kay Moore and Regina Winget, who testified that they had witnessed appellee playing with Jacob, and that Jacob appeared to be a healthy, happy child. Several letters from one of the parties to the other concerning Jacob’s care were introduced into evidence, as well as photographs of him and two videotapes of the exchanges.

After the hearing, the chancellor entered an order that found that the child had been exchanged as directed but that communication between the two parties had been almost nonexistent. She further found that the parties harbored much bitterness toward each other. Yet the chancellor ordered the parties to share joint physical and legal custody of Jacob, to exchange him weekly, and to speak directly with each other on the day prior to the exchange to discuss Jacob and any special concerns they had about him. The chancellor also ordered appellee to personally exchange Jacob unless he was at work and for the parties to attempt to accommodate each other for any scheduling changes. This appeal follows.

The Joint-Custody Decision was Clearly Erroneous

Chancery cases are reviewed de novo on appeal. See Thompson v. Thompson, 63 Ark. App. 89, 974 S.W.2d 494 (1998). A chancellor’s findings are not reversed unless this court determines that the findings are clearly erroneous. See id. Special deference is given to a chancellor’s findings in child-custody cases because of the chancellor’s superior position to determine witness credibility, testimony, and the best interest of the child. See id.

Custody awards are not made to punish or reward either parent. See Callaway v. Callaway, 8 Ark. App. 129, 648 S.W.2d 520 (1983). Instead, the primary focus is on the best interest and welfare of the child. See Thompson, supra. Our laws do not favor joint custody, unless it is clear that the parties have demonstrated a mutual ability to cooperate in reaching shared decisions concerning the child’s welfare. See Thompson, supra.

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235 S.W.3d 916 (Court of Appeals of Arkansas, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
55 S.W.3d 331, 75 Ark. App. 186, 2001 Ark. App. LEXIS 683, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hobbs-v-hobbs-arkctapp-2001.