Wise v. Wise

374 S.W.3d 704, 2010 Ark. App. 184, 2010 Ark. App. LEXIS 213
Court of Appeals of Arkansas·Decided February 24, 2010·No. No. CA 09-513·Published·Cited by 2 cases

Opinion

JOHN B. ROBBINS, Judge.

hln this divorce action, Jenifer Rebekah Wise appeals from the divorce decree and challenges the trial court’s award of custody of their son, Wesley, to appellee Johnny E. Wise, II. On appeal, she argues that the trial court clearly erred in basing its custody award on the gender of the father. Ms. Wise further contends that, considering all of the evidence, it was error to award custody to Mr. Wise. We affirm.

In child custody cases, we review the evidence de novo, but we do not reverse the findings of the trial court unless they are clearly erroneous. Sharp v. Keeler, 99 Ark.App. 42, 256 S.W.3d 528 (2007). A finding is clearly erroneous when the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Ford v. Ford, 347 Ark. 485, 65 S.W.3d 432 (2002). We give due deference to Lthe trial court’s superior position to determine the credibility of the witnesses and the weight to be given their testimony. Id. The supreme court has held that there is no other case in which the superior position, ability, and opportunity of the trial court to observe the parties carries a greater weight than one involving the custody of minor children. Taylor v. Taylor, 345 Ark. 300, 47 S.W.3d 222 (2001). The best interest of the child is the polestar in every child custody case; all other considerations are secondary. Id.

The parties in this case were married on August 7,1993. Wesley was born on October 27, 1999. Ms. Wise has a daughter, Whitley, from a previous relationship, who was born on September 12,1990.

The parties separated on March 22, 2007. Ms. Wise filed for divorce on April 22, 2007, and she sought custody of Wesley. Mr. Wise filed a response and counterclaim for divorce on September 21, 2007, and he sought custody of Wesley.

A temporary hearing was held on October 16, 2007. At that hearing it was established that since their separation the parties had shared about equal custody of Wesley. Mr. Wise remained in the marital home in Bigelow, and Ms. Wise had moved in with her parents and then to an apartment in Morrilton. The trial court entered a temporary order on November 2, 2007, granting temporary custody to Mr. Wise, and continuing the mutually agreed upon visitation arrangement.

[¡¡The final hearing was held on September 3, 2008. On November 18, 2008, the trial court entered the divorce decree awarding custody to Mr. Wise. As for visitation, the decree provides, “During the pendency of this cause, the parties have developed a visitation schedule which allows each to spend approximately equal time with the child; the parties are directed to continue to follow that schedule to provide for [Ms. Wise’s] visitation with the child.” Because of the extraordinary visitation granted to Ms. Wise, the trial court deviated downward from the child-support chart and ordered Ms. Wise to pay $43.34 per week in child support.

Both parties testified at the temporary hearing. Ms. Wise testified that she has a salon in Damascus where she has worked since the parties’ separation. She stated that Mr. Wise’s field of employment is excavation, where he works with heavy equipment. Ms. Wise stated that the parties moved into the marital home in Bige-low when Wesley was born, and that it is the only home he has ever known. Ms. Wise testified that she primarily cared for Wesley after he was born. She acknowledged, however, that Mr. Wise was involved in raising Wesley, “changing diapers, feeding and all that stuff.”

Mr. Wise testified at the temporary hearing that he does not set his own work hours, but that he is able to modify his work schedule to accommodate his son’s schedule. Mr. Wise maintained that he has taken an active role in his son’s life since he was born. |4Mr. Wise said that he takes Wesley to school, helps him with his homework, and coaches his baseball and football teams.

Ms. Wise testified at the final hearing, and she stated that she currently lives with her parents in their house in Bigelow. It is a three-bedroom home, and when she has custody Wesley has his own room. Ms. Wise’s daughter, Whitley, has married and lives in Conway.

Ms. Wise testified that after she filed for divorce, she and Mr. Wise unsuccessfully attempted reconciliation. Their attempt to reunify ended in September 2007. According to Ms. Wise, Mr. Wise became more abusive at that point. She recounted a particular incident on September 17, 2007, when she attempted to pick up Wesley at Mr. Wise’s house. Mr. Wise refused to allow her custody of Wesley at that time, and hostile words were exchanged. According to Ms. Wise, this culminated with Mr. Wise pushing her toward the door, and then slamming her with the door and locking her out of the house. Ms. Wise went to the sheriffs office and reported an assault, although evidently no charges were filed.

Ms. Wise testified that she has been Wesley’s primary caregiver since his birth. She stated that, prior to the parties’ separation, she was the only parent who took Wesley to doctor and dentist appointments and attended parent-teacher conferences. Ms. Wise testified that although she is currently employed as a beautician, she is also a licensed nurse.

Ms. Wise testified that when she has custody of Wesley, they go to movies and go out to eat together. While at home, they watch television, play basketball, and take care of their | «¡animals. Ms. Wise also stated that Wesley helps her in the garden and with cooking. She also takes Wesley to the park.

Ms. Wise expressed concerns about Wesley being around Mr. Wise’s extended family. In particular, she stated that Mr. Wise’s mother has some mental issues. Because of that, she was concerned for her son’s safety when Mr. Wise left him in his mother’s care.

Ms. Wise also complained that Mr. Wise failed to keep her informed about Wesley’s activities. She said that Mr. Wise was not forthcoming with information about Wesley’s practice and game schedules.

Ms. Wise’s cousin, Melissa Paladino, testified that she has witnessed the parties’ interaction with Wesley since birth. She has observed Ms. Wise taking care of Wesley’s needs, including buying clothes and school supplies, having birthday parties, and buying his Christmas presents. Ms. Paladino further stated that Ms. Wise did the cooking, and said that she is “your typical mom.”

Charles Stane, a friend of Mr. Wise since childhood, testified that Mr. Wise and Wesley interact well together. He stated that he and his son have frequently gone fishing and hunting with Mr. Wise and Wesley. Mr. Stane stated that Mr. Wise is a good dad, but also stated that Ms. Wise is a good mother and has a close relationship with Wesley. He said that before their separation, both parties shared in taking care of Wesley.

|fiMr. Wise testified that he still lives in the marital home in Bigelow. He stated that Wesley is in third grade at East End Elementary in Bigelow and is a straight-A student. Mr. Wise testified that he helps Wesley with his homework, and will give him a pre-test on the evening before Wesley has a test at school. Mr. Wise also helps Wesley read books.

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Wise v. Wise, 374 S.W.3d 704, 2010 Ark. App. 184, 2010 Ark. App. LEXIS 213 (Ark. Ct. App. 2010).

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