Rasberry v. Rasberry

331 S.W.3d 231, 2009 Ark. App. 594, 2009 Ark. App. LEXIS 741
CourtCourt of Appeals of Arkansas
DecidedSeptember 16, 2009
DocketCA 09-49
StatusPublished
Cited by3 cases

This text of 331 S.W.3d 231 (Rasberry v. Rasberry) 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
Rasberry v. Rasberry, 331 S.W.3d 231, 2009 Ark. App. 594, 2009 Ark. App. LEXIS 741 (Ark. Ct. App. 2009).

Opinion

DAVID M. GLOVER, Judge.

| Appellant, Clayron Rasberry, argues that the trial court erred (1) in placing custody of the parties’ minor son with ap-pellee, Anessa Rasberry, and (2) in disposing of certain real property. We affirm.

A temporary hearing was held on the issue of custody of the parties’ minor child. Finding neither party unfit and specifically qualifying the ruling to be subject to change at the final hearing, the trial court granted temporary custody to Clayron. The temporary custody award to Clayron turned on a May 7, 2007 incident involving Anessa’s employment at UAMS. That day she was told by her supervisor that she was not going to be able to continue her employment in the science laboratory where she worked. Though the supervisor 12denied using the word “terminated” and testified that she was satisfied with Anes-sa’s work and wanted to help her find another position, it was Anessa’s position that her supervisor had told her she was terminated. Immediately following the May 7 conversation, Anessa left the building and went to her car, where her supervisor later found her sitting in the driver’s seat rocking back and forth, nonresponsive to verbal communication. Her supervisor thought that Anessa was having some type of anxiety attack and called for paramedics and the police. It was reported that Anes-sa had then stated that she was going to kill herself and her children; however, none of the witnesses at the temporary hearing testified to hearing Anessa make those statements. As a precaution, Anes-sa was taken to the hospital, and was determined to be okay.

Anessa admitted that the May 7 incident had happened, and that it was an anxiety attack. She stated that she received no follow-up treatment after the incident because she was advised that she was “fine.” Anessa blamed the anxiety attack on a combination of the stress from Clayron, which included bringing his fifteen-year-old son from a previous marriage into the home without consulting her and expecting her to care for him in addition to her son from a previous relationship and the parties’ child, as well as the news that her supervisor was terminating her.

The trial court awarded temporary custody to Clayron. While noting that it was understandable that Anessa was upset over being informed that she was being terminated, the trial court stated that it could-not understand why Anessa’s conduct rose to a level where Rfirst responders and police officers were called out. The trial court reasoned that while Anessa had admitted to Clayron that she did not handle stress well, everyone has to deal with stress at one point or another, and that you have to keep going and do the best you can do. Noting that it had not heard that Clayron had trouble dealing with stress, under the circumstances, the trial court awarded temporary custody to Clayron.

At the final hearing, the only issues before the trial court were permanent custody of the parties’ minor son and division of the residence in which the parties lived during the marriage. Prior to the final hearing, the trial court ordered both parties to undergo psychological evaluations. These were sent' to the trial court and made part of the record as the court’s exhibit. At the close of all the testimony, the trial court took the case under advisement.

The trial court issued a letter opinion on September 10, 2008, citing the court-ordered psychological and custody evaluations of both parties, the trial court’s notes, and the file, finding that the evidence preponderated in favor of awarding full custody of the parties’ child to Anessa. In a second letter dated September 12, 2008, the trial court added these remarks: both parents were fit and proper parents, the trial court’s opinion was based upon the best interest of the parties’ minor child, and no specific findings of fact or conclusions of law were noted in the letters because the hearing was closed.

Clayron requested that the trial court make specific findings of fact and conclusions of law, and on September 19, 2008, the trial court held a closed hearing for that purpose. In |„that hearing, the trial court stated that the parties were both fit and proper parents, appeared to be moral persons of character, were generally stable, and had extended family members who could assist them. It also noted that while Anessa was terminated from her employment at UAMS, it was only for a temporary period of time, and that she was currently still employed at UAMS in her original position. It noted that Clayron’s employment with the railroad required him to be away from home from time to time, while Anessa’s employment did not require her to travel. The trial court noted that it was not bound by the court-ordered evaluations of the parties and that it determined the weight to be accorded to the evaluations. The trial court then recited the summary of the findings of the evaluations:

We find that both Clayron and Anessa Rasberry show capacity to be good parents. We also find that both have significant issues in terms of anxiety, stress, and anger management. However, Mr. Rasberry’s problems in these areas seem greater than those of Anessa Rasberry. Therefore, it is our recommendation that custody of [the minor child] go to his mother with [his] father having liberal visitation privileges. It is also our recommendation that both parents seek therapy for issues concerning anxiety and anger management.

The trial court noted that each party’s evaluation discussed the incident concerning Anessa’s being fired from her job at UAMS, problems in the marriage, each party’s background and medical history, and why each party thought they were a better custodial parent, and concluded with the examiners’ impressions. The trial court found that, when the evaluations were given the appropriate weight, the evidence preponderated in Anessa’s favor.

Custody

| ¿Clayron argues that the trial court erred in awarding custody of the parties’ minor child to Anessa instead of him. Specifically, he argues that the apparent anxiety attack Anessa experienced, coupled with the fact that she failed to seek counseling for the incident, “militates the conclusion that the circuit court’s decision does not serve [the child’s] best interests.” We disagree.

In Sheppard v. Speir, 85 Ark.App. 481, 489, 157 S.W.3d 583, 588 (2004) (citations omitted), this court recited its well-settled standard of review for child custody: ■

In reviewing child-custody cases, we consider the evidence de novo, but will not reverse the trial court’s findings unless they are clearly against the preponderance of the evidence. A finding is clearly against the preponderance of the evidence when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. We also give special deference to the superior position of the trial court to evaluate and judge the credibility of the witnesses in child-custody cases. We know of no cases in which the superior position, ability, and opportunity of the trial court to observe the parties carry as great a weight as those involving children. In custody cases, the primary consideration is the welfare and best interest of the child involved, while other considerations are merely secondary.

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Related

Walls v. Walls
2014 Ark. App. 729 (Court of Appeals of Arkansas, 2014)
Coatney v. Coatney
377 S.W.3d 381 (Court of Appeals of Arkansas, 2010)
Poole v. Poole
372 S.W.3d 420 (Court of Appeals of Arkansas, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
331 S.W.3d 231, 2009 Ark. App. 594, 2009 Ark. App. LEXIS 741, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rasberry-v-rasberry-arkctapp-2009.