Vongkhamchanh v. Vongkhamchanh

2015 Ark. App. 584, 473 S.W.3d 570, 2015 Ark. App. LEXIS 663, 2015 WL 6182382
CourtCourt of Appeals of Arkansas
DecidedOctober 21, 2015
DocketCV-15-312
StatusPublished
Cited by2 cases

This text of 2015 Ark. App. 584 (Vongkhamchanh v. Vongkhamchanh) 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
Vongkhamchanh v. Vongkhamchanh, 2015 Ark. App. 584, 473 S.W.3d 570, 2015 Ark. App. LEXIS 663, 2015 WL 6182382 (Ark. Ct. App. 2015).

Opinion

RITA W. GRUBER, Judge

| tThis case involves a custody dispute between appellant, Sungka Vongkham-chanh, and his ex-wife, appellee, Alicia Vongkhamchanh, over their two children. The parties were divorced by a decree entered on February 6, 2015, which awarded primary custody of the children to ap-pellee and standard visitation to appellant. Appellant contends that the trial court erred in using his military status as the basis for denying him custody and in awarding him standard visitation in “flagrant disregard” of its incompatibility with his active military status. We hold that the trial court did not clearly err, and we affirm its decision. '

The parties were married in 2011. Ap-pellee filed a complaint for divorce on July 22, 2014, and' appellant filed an answer on August 18, 2014. At the time of the divorce hearing in January 2015, their children were ages three and five. Appellant testified that he was employed by the United States Air Force and had been with the air force for four years at the time of the hearing. Although the parties met while in high school in Arkansas, the | ¿family lived together for most of their marriage in Great Falls, Montana, where appellant was stationed, The parties separated in late 2013, when appellee left Montana with the children and moved in with her parents in Arkansas.

Appellee testified that, when they- lived in Montana, she had stayed at home and been the primary caretaker of the children and that appellant had done very little interacting with them, even when he was home. She testified that, at the time of trial, she was living with her parents in Fayetteville and working at a newspaper factory in Lowell from 1:30 p.m. to 9:30 p.m. each day. She was planning to become a machine operator, which would pay more. She testified that her brother was a supervisor where she worked and that she could change her shift as needed so that she or her parents were available to take care of the children. She also planned to get an apartment with her increased income and child support, if support were awarded. She testified that her children generally awoke at 7:00 a.m., ate breakfast, and then spent time outside until she put them down for a nap while she prepared to go to work.

On cross-examination, appellee admitted that she had been arrested for and pleaded guilty to DWI in June 2014. She said that the children were not in the car with her at the time, that she no longer drank alcohol, and that she had not been arrested for any alcohol or drug-related- offenses since that time. She also testified that she was in a new relationship and pregnant at the time of the hearing.

Appellee’s mother and stepfather testified that the parties’ relationship was volatile and that they argued regularly about appellant’s lack of involvement in the children’s life. Both testified that appellant’s interaction with the children was very limited and that appellee had |salways been there for the children. Both also opined that it was in the best interest of the children tó remain with appellee.

Appellant testified that his work hours were from 3:00 p.m. to 11:00 p.m. Saturday through Thursday but that he would change those hours if he were granted custody. He said that he currently lived in a two-bedroom apartment and that he was on a waiting list for a three- or four-, bedroom house on base. He testified that he accumulated two-and-a-half days of leave per month; however, he did not visit the children after they left Montana in December 2013 until August 2014, when he took three weeks’ leave to spend in Arkansas with his family. He saw the children only three or four days during that time. He testified that he asked appellee “a couple of times” during those three weeks to see them but appellee had told him “her parents had them.” When the court asked appellant why he did not file “something” with the court to set up visitation, he said he was not aware that he could. He testified that he would be deployed overseas for only six months every three years and that, if he were awarded custody, his- sisters or his mom,, who all lived in Arkansas, could watch the children while he was deployed. Although appellant testified that appellee was a “good mom,” he said that he could “give them a better education, properly finance them,” and he had “contingency plans” for them in case anything happened..

Appellant’s sister testified that the parties had a very rocky relationship, that there was always miscommunication between them, and that, when the parties were together, appellant had worked full-time and appellee had stayed home with the children. She said that appellant was very good with the children and always tried to instill education and discipline. She | testified that, in her opinion, it was in the best interest of the children to be with appellant because of the instability she had witnessed when the parties were together. She said that appellant did not allow “certain things to affect him emotionally” the way appellee did.

The court found that it was in the best interest of the children for appellee to be awarded custody, giving several reasons for its decision. First, the court said that appellee had been the primary custodian of the children, and it did not want to remove them from the home they had known all of their lives. The court said that it appreciated appellant’s military service and found it “admirable” but noted that it did not put him in the best position to provide the safest environment for the children and that it had, unfortunately, put him in a situation where the children did not know him as well as they knew appellee. The court found that the most “stable environment” for the children at that time was with appellee. The court also awarded standard visitation to appellant with one Skype or phone visitation per week. The court’s order, entered on February 6, 2015, reflected its oral pronouncement, finding that it was in the best interest of the children for primary custody to be awarded to appellee with appellant having standard visitation. The court also stated that visitation could be adjusted “by mutual agreement of the parties to accommodate the Defendant’s service in the United States Air Force.”

For his first point on appeal, appellant contends- that the trial court erred when it used his military status as the basis for denying him custody. We review child-custody cases de novo, but we will not reverse a trial court’s findings unless they are clearly erroneous. Grantham v. Lucas, 2011 Ark. App. 491, at 4, 385 S.W.3d 337, 340. Because the question of | ^whether the trial court’s findings are clearly erroneous turns largely on the credibility of the witnesses, we give special deference to the superior position of the trial judge to evaluate the witnesses, their testimony, and the child’s best interest. Sharp v. Keeler, 99 Ark. App. 42, 44, 256 S.W.3d 528, 529 (2007). There are no cases in which the superior position, ability, and opportunity of the trial judge to observe the parties carry as great a weight as those involving minor children. Horton v. Parrish, 2015 Ark. App. 306, at 10, 461 S.W.3d 718, 724.

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Bluebook (online)
2015 Ark. App. 584, 473 S.W.3d 570, 2015 Ark. App. LEXIS 663, 2015 WL 6182382, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vongkhamchanh-v-vongkhamchanh-arkctapp-2015.