Thigpen v. Carpenter

730 S.W.2d 510, 21 Ark. App. 194, 1987 Ark. App. LEXIS 2425
CourtCourt of Appeals of Arkansas
DecidedJune 10, 1987
DocketCA 86-475
StatusPublished
Cited by30 cases

This text of 730 S.W.2d 510 (Thigpen v. Carpenter) 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
Thigpen v. Carpenter, 730 S.W.2d 510, 21 Ark. App. 194, 1987 Ark. App. LEXIS 2425 (Ark. Ct. App. 1987).

Opinions

James R. Cooper, Judge.

In contemplation of their divorce, the appellee and the appellant, Anice E. Thigpen, entered into an agreement which provided for joint custody of their two minor daughters. Four months later, the appellee filed a motion seeking sole custody of the children, which was granted by the chancellor. For her appeal the appellant argues four points: that the evidence was insufficient to support the chancellor’s finding that the appellant lacked the emotional stability to care for the children; that there was insufficient evidence that the appellant’s sexual orientation would adversely affect the children; that there was insufficient evidence of a change of circumstance to warrant a change in custody; and that the court’s orders denying the appellant custody and restricting visitation because of her homosexuality violated her constitutional rights. We find that there was sufficient evidence presented to the trial court to warrant a change in custody, and therefore, we affirm.

Our standard of review is well settled. On appeal from a chancery court case, this Court considers the evidence de novo, and we will not reverse the chancellor unless it is shown that the lower court’s decision is clearly contrary to a preponderance of the evidence. Digby v. Digby, 263 Ark. 813, 567 S.W.2d 290 (1978). The primary consideration in awarding the custody of children is the welfare and best interest of the children involved, and other considerations are secondary. Scherm v. Scherm, 12 Ark. App. 207, 671 S.W.2d 224 (1984). Custody is not awarded as a reward to, or punishment of, either parent. Ketron v. Ketron, 15 Ark. App. 325, 692 S.W.2d 261 (1985). Since the question of the preponderance of the evidence turns largely on the credibility of the witnesses, the appellate court defers to the superior position of the chancellor, especially in those cases involving child custody. Anderson v. Anderson, 18 Ark. App. 284, 715 S.W. 2d 218 (1986).

The appellant first argues that the appellee failed to establish by the preponderance of the evidence that the appellant lacked the emotional stability to properly care for their minor children. The appellant contends that any emotional problems she suffered were in the past, and that, because she was able to be a good mother during the marriage, she is capable of continuing to parent the children now. At trial the appellant presented an expert witness, Dr. Winston Wilson, who testified that he had tested and talked with the appellant for five hours, and that he had found her to be emotionally stable.

The appellee testified that the appellant had attempted suicide before they were married, and that at the time he separated from her she was despondent and suicidal. Both of the appellant’s parents testified that they loved their daughter, but that they were primarily concerned that their grandchildren receive the best care possible. The appellant’s father stated that the appellant had recently had emotional outbursts. Her mother testified that the appellant had shown a great deal of instability in the past and that, although the appellant had been a perfect mother in the past, “she has had a sudden turnaround to everything she had always believed in.” The mother admitted that she did not like her daughter’s homosexuality, but that the appellant’s prior history of instability frightened her the most.

We simply cannot second-guess the chancellor in this matter. The chancellor had the opportunity, which we do not have, to view the appellant, the appellee, and the other witnesses who testified to the appellant’s emotional state. Where the testimony is conflicting the issue of credibility is a matter which we must defer to the trial court’s judgment. Durham v. Durham, 289 Ark. 3, 708 S.W.2d 618 (1986).

The appellant next argues that the appellee failed to establish by a preponderance of the evidence that the appellant’s sexual orientation will adversely affect the best interest of the children. However, as the chancellor pointed out, Arkansas courts have never condoned a parent’s promiscuous conduct or lifestyle when such conduct has been in the presence of the children. Ketron v. Ketron, 15 Ark. App. 325, 692 S.W.2d 261 (1985). In Ketron, the mother was living with a man who was married but separated from his wife. Although the court allowed the mother to retain custody, it ordered her to terminate her living arrangement. In other cases we have approved changes in custody where the custodial parent has been involved in illicit sexual relationships. See Scherm v. Scherm, 12 Ark. App. 207, 671 S.W.2d 224 (1984); Bone v. Bone, 12 Ark. App. 163, 671 S.W.2d 217 (1984).

At trial the appellant testified that she began a relationship with her lesbian lover before the divorce, and she admitted that she currently resided with her lover. She stated that she felt married to her lover and intended to live with her forever. She further stated that she occupied the same bedroom as her lover and would do so while the children were staying with them. Barrett Markland, the appellant’s lover, testified that she loved the appellant and was fond of the children. She testified that she and the appellant had never engaged in any physical sexual contact in the children’s presence, but that she and the appellant would be sharing the same bedroom while the children were with them. They both stated that, on the occasions they had the children, they slept together in their bedroom, and, in one case, on the couch of the friend with whom they were staying. It is clear from their testimony that neither the appellant nor Ms. Mark-land intended to purposely engage in sexual conduct in the presence of the children; it is equally clear that neither expressed a desire to take precautions to shield the children from exposure to their sexual activities.

In light of this testimony, we cannot say that the chancellor erred. Contrary to the appellant’s argument, it has never been necessary to prove that illicit sexual conduct on the part of the custodial parent is detrimental to the children. Arkansas courts have presumed that it is. *See Digby v. Digby, 263 Ark. 813, 567 S.W.2d 290 (1978); Walker v. Walker, 262 Ark. 648, 559 S.W.2d 716 (1978); Harmon v. Harmon, 253 Ark. 428, 486 S.W.2d 522 (1972); Northcutt v. Northcutt, 249 Ark. 228, 458 S.W.2d 746 (1970); Scherm, supra; Bone, supra.

For her third point, the appellant contends that the appellee failed to establish by a preponderance of the evidence that a change of circumstances existed to warrant a change of custody. The appellant stated that she had told her husband of a homosexual relationship she had been involved in prior to their marriage. She further stated that her husband knew she planned to live with Ms. Markland, and in fact helped her to move into Ms.

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Bluebook (online)
730 S.W.2d 510, 21 Ark. App. 194, 1987 Ark. App. LEXIS 2425, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thigpen-v-carpenter-arkctapp-1987.