Hickman v. Culberson

John E. Jennings, Judge. This is a child-custody case in J the context of an earlier paternity suit. Angela Renee Hickman and Wayne Culberson lived together for five years during which time they had a daughter, Chelsea. The parties separated, and Culberson married the woman he had been seeing during his relationship with Hickman. Hickman filed suit to establish paternity so that she could receive child support from Culberson. Following DNA testing confirming that he was Chelsea’s father, Culberson counterclaimed for custody of the child. The chancellor awarded custody to Culberson. Appellant argues that the chancellor clearly erred because the custody award is not in Chelsea’s best interest. We disagree and affirm. While we review chancery cases de novo, we reverse only if the chancellor’s findings are clearly against the preponderance of the evidence or clearly erroneous. Fitzpatrick v. Fitzpatrick, 29 Ark. App. 38, 776 S.W.2d 836 (1989). 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. Skokos v. Skokos, 344 Ark. App. 420, 40 S.W.3d 768 (2001). We have often recognized that there is no case in which greater deference should be given to the chancellor’s position, ability, and opportunity to see and evaluate the evidence than those involving the welfare of minor children. Calhoun v. Calhoun, 3 Ark. App. 270, 625 S.W.2d 545 (1981). The chancellor found that appellant had financial problems as she had written several hot checks. She had lived with a convicted felon with a violent past and was aware that he had spanked her daughter.. Appellant had undergone an abortion while living with this boyfriend. She had moved six or seven times in two years and was fired for unexplained reasons from her previous employment. Appellant took Prozac for her nerves and bed to the court about pulling a knife and threatening to commit suicide. She also gave inconsistent statements about bruises on the child’s body. The chancellor noted that, although Dr. Greta Parks felt that Chelsea had been abused, her report was inconclusive, and the abuse was otherwise unsubstantiated. The chancellor also found that appellee had married the woman who broke up the parties’ relationship. The chancellor noted that, while appellee’s wife had a good relationship with the child, she had a confrontational relationship with appellant. AppeEee’s new wife had taken an overdose of pills merely to gain his attention. Appellee did not pay support until a blood test confirmed his paternity, and he did not pay any support while the child was not living with him. Appellee had given up his rights to another child. On the other hand, appellee had lived in the same location for five years and had worked consistently. He appeared to have a stable marriage and attended church regularly. In awarding custody to the father, the chancellor conceded that he had arrived at his decision with some difficulty. The court was particularly disturbed by appellant’s poor choice in men and the fact that she had lied under oath. He ultimately awarded custody to appellee because he could not be certain that appellant would not place Chelsea in a harmful situation. The chancellor found that appellee had matured and that he had a stable marriage, steady employment, and ample support from his family in caring for the child. Pursuant to Ark. Code Ann. § 9-10-113(a) (Repl. 1998), an illegitimate child shall be in the custody of its mother unless a court of competent jurisdiction enters an order placing the child in the custody of another party. Section 9-10-113(b) and (c) provide that a biological father, who has established paternity, may petition the proper court for custody of his child wherein the child resides; however, before the biological father can obtain custody, he must show all of the following: (1) he is a fit parent to raise the child; (2) he has assumed his responsibilities toward the child by providing care, supervision, protection, and financial support for the child; and (3) it is in the best interest of the child to award custody to the biological father. Appellant argues that it is not in Chelsea’s best interest for the court to vest custody in appellee because she was the child’s primary caregiver while appellee was pursuing another woman. She contends that the chancellor criticized her choice of men, including appellee, and yet awarded him custody. Appellant maintains that appellee had exercised little visitation and did not get involved with Chelsea until just before they were scheduled to go to court. Appellant points out that the allegations of child abuse were unsubstantiated. Finally, she reminds us that appellee admitted that she was a good mother. In a child custody hearing the court considers what is in the best interest of the child. Ark. Code Ann. § 9-13-101 (Supp. 2001). The primary consideration in awarding the custody of a child is the child’s welfare and best interest, and other considerations are secondary. Eaton v. Dixon, 69 Ark. App. 9, 9 S.W.3d 535 (2000). It seems clear from the chancellor’s detailed letter opinion that he considered each party’s past and present circumstances in determining what would be in Chelsea’s best interest. Because the chancellor appears to have taken into account all of the points made by appellant, we cannot say that he clearly erred in concluding that custody should be awarded to appellee. Appellant also argues that appellee had not assumed his financial obligations toward Chelsea until paternity was proven even though she and appellee were living together at the time the child was conceived. This fact was likewise duly noted in the chancellor’s letter opinion. Appellee’s eventual acceptance of his financial responsibility toward the child could have contributed to the chancellor’s conclusion that he had matured. As the dissent accurately notes, the chancellor did not make specific findings regarding the statutory requirements. Appellant could have asked for such findings under Ark. R. Civ. P. 52. Her failure to do so constitutes a waiver of the issue. Smith v. Quality Ford, Inc., 324 Ark. 272, 920 S.W.2d 497 (1996). The dissent also suggests that we have ignored Norwood v. Robinson, 315 Ark. 255, 866 S.W.2d 398 (1993). To a certain extent this is true, because the Norwood issue was not raised in the trial court, nor by the appellant in her briefs in this appeal. Even so, we have no reason to conclude that the trial court was either unaware of, or refused to follow, the court’s decision in Norwood. Bird, Griffen, Baker, Robbins, Crabtree, and Roaf, JJ-, agree. Neal, J., concurs. Hart, J., dissents.