Valentine v. Valentine

377 S.W.3d 387, 2010 Ark. App. 259, 2010 Ark. App. LEXIS 255
CourtCourt of Appeals of Arkansas
DecidedMarch 17, 2010
DocketNo. CA 08-1518
StatusPublished
Cited by7 cases

This text of 377 S.W.3d 387 (Valentine v. Valentine) 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
Valentine v. Valentine, 377 S.W.3d 387, 2010 Ark. App. 259, 2010 Ark. App. LEXIS 255 (Ark. Ct. App. 2010).

Opinion

DAVID M. GLOVER, Judge.

| T Matt and Christy Valentine were married in 1996 and divorced in 2006. During the marriage, they had two children, a girl, M.G. (DOB 3/28/98), and a boy, J.M. (DOB 7/6/00). At the time of the divorce, the parties agreed they would have joint custody, with Christy having primary physical custody. By petition filed September 27, 2007, Christy sought modification of the divorce decree, alleging material and substantial changes in circumstances entitling her to an increase in child support. Matt responded, denying that an increase was warranted and counterclaiming for sole custody of the children. Following a six-day hearing, conducted over two months, the trial court granted Christy’s request for additional child support and attorney’s fees and denied Matt’s counterclaim for sole custody. |2Matt challenges the trial court’s denying him custody of the children, increasing his child-support obligations, and awarding Christy attorney’s fees. We affirm.

I. The trial court erred in refusing to award Matt Valentine custody of his children.

The essence of Matt’s argument under his first point of appeal is that he demonstrated evidence of Christy’s adulterous conduct both before and after the divorce, which justified a change of custody, and that — in light of such evidence — the trial court erred in refusing to change primary custody to him. In making the argument, he raises several subpoints: 1) that the trial court erred in concluding Christy has somehow reformed her behavior, 2) that the trial court erred in imposing a burden on Matt to prove the existence of an adverse impact on the children, 3) that the trial court erred in failing to presume that Christy’s illicit sexual conduct is detrimental to the children, 4) that the trial court’s finding that Christy was incapable of instructing the children on the institution of marriage required a change of custody, and 5) that the trial court erred in punishing Matt for not disclosing Christy’s illicit sexual behavior at the time of the divorce. We find no basis for reversal in these subpoints under this global argument.

Standard of Review

This court repeated its familiar standard of review for custody cases in Harrison v. Harrison, 102 Ark.App. 131, 133-34, 287 S.W.3d 601, 604 (2008):

In reviewing [equity] cases, we consider the evidence de novo, but will not reverse a [trial court’s] findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767 (1996). We give due deference to the superior position of the [trial court] to view and judge the credibility of the witnesses. Noland v. Noland, 330 Ark. 660, 956 S.W.2d 173 (1997). 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 children. Anderson v. Anderson, 18 Ark.App. 284, 715 S.W.2d 218 (1986). Where the [trial court] fails to make findings of fact about a change in circumstances, this court, under its de novo review, may nonetheless conclude that there was sufficient evidence from which the [trial court] could have found a change in circumstances. Campbell v. Campbell, 336 Ark. 379, 985 S.W.2d 724 (1999); Stamps v. Rawlins, 297 Ark. 370, 761 S.W.2d 933 (1988).
Our law is well settled that the primary consideration in child-custody cases is the welfare and best interest of the children; all other considerations are secondary. Digby v. Digby, 263 Ark. 813, 567 S.W.2d 290 (1978). A judicial award of custody should not be modified unless it is shown that there are changed conditions that demonstrate that a modification of the decree is in the best interest of the child, or when there is a showing of facts affecting the best interest of the child that were either not presented to the [trial court] or were not known by the [trial court] at the time the original custody order was entered. Jones, 326 Ark. 481, 931 S.W.2d 767. Generally, courts impose more stringent standards for modifications in custody than they do for initial determinations of custody. Id.

(quoting from Hamilton v. Barrett, 337 Ark. 460, 465-66, 989 S.W.2d 520, 523 (1999)).

. Letter Opinion

Here, in its letter opinion, the trial court made its disgust for Christy’s conduct clear with comments such as:

1) “Doubtless, if the Court had been made aware of [Christy’s] lewd and shameless conduct, the custody would have been awarded to [Matt]. She was much more concerned with satisfying her sexual urges than taking care of, or being concerned with, the needs of the children. But that was then.”
142) “Almost without question, had the Court been aware of [ Christy’s] conduct, custody would have been awarded to [Matt].”
3) “But it is disheartening to hear a case, where the custodian is so lacking in moral character. She even seems oblivious to her neglect of her duty to lead a life that sets a good example for her children. She claims not to know the difference between a man who is divorced, and one who is still married. This man, whom she is serving as paramour in an explicitly adulterous relationship, is even under Court order to keep his child away from her. There are a number of cases teaching that sexual promiscuity is not countenanced or condoned, in a custody context.”
4) “Further, her breach of her fiduciary duty in tending to her father’s estate is likewise a serious blemish on her character. Moreover, her protestation of lack of understanding of the seriousness of her defalcation seems insincere and untruthful.”
5) “[T]he Court finds it was [Christy’s] affairs with other men that ruined the marriage.”
6) “And her unfaithfulness was startlingly debauched, including having sex with a former student, in daylight, in a car, in a public park.”
7) “For today’s decision, the Court must conclude that defendant has no respect for an important institution [marriage], and thus will not properly instruct the children with respect to that aspect of their rearing.”

Countering these adverse comments, the trial court also stated in its letter opinion:

|sl) “And why did the Court award custody to [Christy] ? At [ Matt’s] urging and petition. In fact, he never filed to change custody, until after [Christy] filed to increase the child support.”

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Cite This Page — Counsel Stack

Bluebook (online)
377 S.W.3d 387, 2010 Ark. App. 259, 2010 Ark. App. LEXIS 255, Counsel Stack Legal Research, https://law.counselstack.com/opinion/valentine-v-valentine-arkctapp-2010.