Tanner v. Kadusheva

389 S.W.3d 635, 2011 Ark. App. 379, 2011 WL 2028916, 2011 Ark. App. LEXIS 414
CourtCourt of Appeals of Arkansas
DecidedMay 25, 2011
DocketNo. CA 10-1119
StatusPublished
Cited by3 cases

This text of 389 S.W.3d 635 (Tanner v. Kadusheva) 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
Tanner v. Kadusheva, 389 S.W.3d 635, 2011 Ark. App. 379, 2011 WL 2028916, 2011 Ark. App. LEXIS 414 (Ark. Ct. App. 2011).

Opinion

ROBERT J. GLADWIN, Judge.

11Appellant Brian Tanner appeals from the July 6, 2010 divorce decree in Pulaski County Circuit Court that awarded joint custody of the parties’ minor son to the parties and made appellee Kristina Ka-dusheva the primary caregiver. Appellant argues that the circuit court erred (1) in finding that it was in the child’s best interest for appellee to be the primary caregiver; (2) in making a custody determination based upon speculation of future events; and (3) in refusing to hold appellee in contempt for the destruction of evidence and strike her affirmative requests for relief for the violation of court orders. We affirm.

The parties were married on December 24, 2007. Appellee gave birth to their son, E.T., on January 20, 2009. The parties participated in counseling in May and June 2009, and continued living together in their home with their child until September 8, 2009. On |2September 8, 2009, appellee paid her out-of-state college tuition and took $6000 from the parties’ joint bank account. Appellee went to appellant’s place of employment to discuss when the family would move to Oklahoma and then subsequently filed a petition for an order of protection against him. The circuit court granted an ex parte order, which in part granted her temporary custody of the child.

Appellee then returned to their apartment, and when appellant arrived, she had the order of protection served upon him. Appellee subsequently removed property from their apartment and moved to Oklahoma. She filed her complaint for divorce on September 10, 2009. The hearing on her petition for an order of protection was set for Monday, September 21, 2009, but she dismissed the petition at 4:22 p.m. on Friday, September 17, 2009.

On September 23, 2009, the circuit court, after being presented with appellant’s emergency motion for custody and appel-lee’s answer, both filed on September 21, 2009, ordered that neither party allow the child to be out of state. But, appellee remained out of state with the child until the temporary hearing on October 1, 2009.

At the conclusion of the hearing, the circuit court found that there was no evidence of domestic abuse, granted appellee temporary custody of the child, allowed appel-lee to relocate with the child to Oklahoma, and granted appellant visitation. The circuit court also ordered the parties not to destroy, delete, tamper with, or otherwise change information that was stored on their laptop computers, external hard drives, or cellular telephones, or allow anyone else to do so, until the other party was given the opportunity to copy the information.

| ¡¡During the three-day trial held in March 2010, the circuit court heard testimony from the parties, their counselor, the custody evaluator, a computer technician, a computer engineer with forensic certifications, appellee’s stepfather, and appellant’s parents and friends. The counselor testified about the parties’ relationships with each other and the child prior to the separation, and the custody evaluator discussed her evaluation and concerns about the misleading information that appellee gave during the evaluation as well as her concerns about appellee’s conflicting statements to her, the counselor, and the circuit court. The computer technician and the engineer testified that the external hard drive produced by appellee had been wiped clean. Appellee testified that, two weeks after the court’s order, she took her external hard drive to an out-of-state computer service center but was told that it had no files on it. She claimed to have a copy of the hard drive, but the engineer testified that the DVDs that she produced were merely copies of her laptop computer. All other witnesses testified about their personal interactions with the parties.

In the divorce decree filed July 6, 2010, the circuit court found that it was in the best interest of the minor child that the parties share joint custody, with appellee serving as primary caregiver in Oklahoma. Appellant timely filed his notice of appeal, and this appeal followed.

This court reviews child-custody cases de novo on the record to determine whether the circuit judge’s findings are clearly erroneous. Bethany v. Jones, 2011 Ark. 67, 378 S.W.3d 731. A finding is clearly erroneous only if the reviewing court is left with a definite and firm conviction that a mistake has been committed. Id. The question of whether the circuit court’s [4findings are clearly erroneous turns largely on the credibility of witnesses, which the circuit judge is in a superior position to evaluate. Id. The deference accorded to the circuit court’s credibility determinations is even greater in child-custody cases, 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. We have held that there are no cases in which the superior position, ability, and opportunity of the circuit judge to observe the parties carry as great a weight as those involving minor children. Sharp v. Keeler, 99 Ark.App. 42, 256 S.W.3d 528 (2007).

I. Best Interest of Child for Appellee to Serve as Primary Caregiver

Appellant attacks the circuit court’s determination of the credibility of the witnesses in this portion of his argument, despite our policy of according special deference to the circuit court’s superior position to evaluate the witnesses, their testimony, and the child’s best interest. In support of his contention that the circuit court erred in its best-interest determination appellant relies on disputed witness testimony that was carefully considered by the circuit court. Bethany, supra. Appellant essentially asks us to sit as a fact-finder and retry the issues of this case; however, it is not our role to conduct a trial de novo and consider questions of fact and issues of law as if there had been no trial below. Paslay v. Arkansas Dep’t of Human Servs., 75 Ark. App. 19, 53 S.W.Bd 67 (2001).

Both parties sift through the substantial testimony from their families, friends, counselor, custody evaluator, and the parties themselves, regarding each party’s ability to care [ Bfor the child, heard by the circuit court over the course of three days. Each attempts to slant that testimony to his or her respective advantage.

Appellant discusses at length appellee’s alleged attempts to deceive the circuit court, along with her alleged disregard of the circuit court’s orders regarding taking the child to Oklahoma during the pendency of the case and the destruction of evidence related to her computer and cell phone. He attacks both her character and her physical and mental stability with respect to her ability to properly care for and raise the parties’ son.

Appellant cites Arkansas Code Annotated section 9-18-101(a)(l)(A)(i) (Repl.2009), which provides that, in an action for divorce, the award of custody of a child of the marriage shall be made without regard to the sex of a parent but solely in accordance with the welfare and best interest of the child. He also cites Arkansas Code Annotated section 9 — 13—101(b)(2), which provides in pertinent part that, in making an order for custody, the court may consider, among other facts, which party is more likely to allow the child frequent and continuing contact with the noncustodial parent.

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Bluebook (online)
389 S.W.3d 635, 2011 Ark. App. 379, 2011 WL 2028916, 2011 Ark. App. LEXIS 414, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tanner-v-kadusheva-arkctapp-2011.