Daniel v. Spivey

• Decision Date: 15 March 2012
• Docket Number: No. 11–152.,11–152.
• Citation: 2012 Ark. 39,386 S.W.3d 424
• Parties: Stephanie Spivey DANIEL, Appellant v. Darrell SPIVEY, Appellee.
• Court: Arkansas Supreme Court

2012 Ark. 39

386 S.W.3d 424

Stephanie Spivey DANIEL, Appellant

v.Darrell SPIVEY, Appellee.

No. 11–152.

Supreme Court of Arkansas.

Feb. 2, 2012.

Rehearing Denied March 15, 2012.

Richard Ernest Worshman, Little Rock, for appellant.

Jesse Thurman Skinner Jr., Batesville, for appellee.

COURTNEY HUDSON GOODSON, Justice.

Appellant Stephanie Spivey Daniel brings this appeal from the divorce decree entered by the Circuit Court of Woodruff County, wherein the court granted appellee Darrell Spivey visitation rights to appellant's daughter, who was born of a previous marriage. For reversal, appellant contends that the circuit court erred in ruling that appellee stood in loco parentis to the child. We agree and reverse.

The child at the heart of this appeal, S.B., was born on June 13, 2003, to appellantand her former husband, Jeremy Bunch. When appellant and Bunch divorced in 2004, the decree placed custody of S.B. with appellant, while granting Bunch the right to reasonable visitation and ordering him to pay child support. Appellant began dating appellee in 2005. Initially, the two engaged in a long-distance relationship, as appellant lived in Monticello where she attended college, while appellee resided in Batesville. In 2006, appellant moved to the community of Peach Orchard, and in 2007, she purchased a home in McCrory. The parties lived together in that home, although appellee continued to maintain his separate residence in Batesville.

On January 17, 2009, appellant and appellee married. However, twenty months later, appellant filed for divorce on August 17, 2010. In his answer and counterclaim for divorce, appellee requested visitation with S.B., alleging that he was entitled to this privilege because he had stood in loco parentis to the child for the past five years. The parties entered into a property-settlement agreement, leaving appellee's request for visitation as the only contested issue.

The record of the hearing established that appellee's job as a welder involved long hours and required travel that kept him away from home, sometimes for several weeks. However, there were also times that he remained off work for extended periods. In her testimony at the hearing, appellant acknowledged that appellee spent the majority of his time with her and S.B. when he was not working. Further, appellant admitted that S.B. loved appellee and that appellee also cared for S.B. She said that appellee accompanied her and the child on S.B.'s first days of kindergarten and first grade and that he attended a parent-teacher conference when S.B. was in the first grade. Appellant stated that appellee helped S.B. with homework when he was available. She testified that she had left the child overnight with appellee a few times when she was out of town. She said that appellee did not pay any medical, dental, or daycare bills on behalf of S.B. and that he did not provide her with medical insurance. Appellant testified that appellee contributed $1,000 per month toward expenses but that this sum also was used to pay his health insurance and bills associated with his home in Batesville. She said that Bunch exercised visitation at least once a month and that she objected to appellee's request for visitation because S.B. had a mother and a father and was already pulled between two households.

Bunch also testified in opposition to appellee's request for visitation. He said that S.B. called him “dad” or “daddy,” and he felt that allowing appellee structured visitation would be confusing to S.B. Bunch also testified that he paid child support of $93 per week and that he exercised visitation with S.B. as often as he could.

During his testimony, appellee offered a number of photographs of him and S.B. hunting, fishing, frog gigging, and attending a fair. He testified that he contributed $1,000 per month toward expenses, sometimes bought groceries, and paid “some child care.” He also testified that he once bought S.B. a pair of shoes at Walmart and that he had paid a doctor bill. Appellee also said that he picked up S.B. from daycare on occasion and that he had attended her pre-kindergarten graduation and an event called “dads for donuts.” He testified that S.B. had called him “daddy” before, but he said that she used the nickname “nickel pickle” that came about because she could not pronounce his name. Appellee stated that, when he was at home, it was his evening job to give S.B. a bath and to brush her teeth. He said that he and S.B. have a “loving, strong, relationshiplike a father and a daughter have.” He testified that he should have visitation with S.B. because “I've been the only father” and because S.B. trusts and depends on him.

Appellee also presented the testimony of witnesses who had observed the interaction between appellee and S.B. Each testified that appellee and the child shared an affectionate “father-daughter” type relationship. Joyce Powell, who operated the daycare center S.B. had attended, testified that appellee had picked up the child from daycare and that she was often paid from the parties' joint checking account.

The circuit court issued its decision granting appellee visitation rights in a letter opinion. After reciting the historical facts, the court ruled as follows:

According to the testimony of the witnesses, excluding [Appellant], the relationship between [Appellee] and S.B. was that of father-child. Even though [Bunch] has exercised visitation with the child on weekends and for a short period in the summer, [Appellee] has lived, for the most part, with [Appellant] and S.B. since at least September 2006. According to the testimony of Dale Oldham, [Appellant's] supervisor from September 2006—April 2008, [Appellee] lived with [Appellant] and S.B. when he was off work. The testimony of the witnesses indicated [Appellee] and child hunted and fished together; [Appellee] disciplined S.B. when it was required and praised her when justified her [sic]. In dispute of this testimony, [Appellant] and her father testified, since the separation, the child has not indicated she has missed seeing [Appellee].

Both parties agree that this court has the discretion to award visitation to a step-parent who has stood in loco parentis to a child. The testimony of all witnesses, excluding [Appellant], who testified on this point indicated S.B. and [Appellee] had a father-child relationship prior to the separation of these parties.

In this instance, S.B. has a father who is involved in her life. Neither biological parent wants the relationship to continue. The court however must take into account the fact that the relationship is one that, at one point in time, was in fact fostered by [Appellant] and tolerated by Mr. Bunch. It is a relationship that has existed for five (5) of the seven (7) years of this child's existence. Taking that into consideration, the question then becomes whether it is in the best interest of the child for this relationship to continue.

The court finds that the [Appellee] did stand in loco parentis to the child S.B. and that it is in the best interest of the child to continue to have a relationship with each other. [Appellee] will be allowed to visit one weekend per month; one week in the summer; and one overnight visit during each of the following breaks: Spring and Christmas. [Appellee] may also have telephone communication with the child each Tuesday at 6:00 p.m. [Appellant] shall make the child available for these conversations. The court's usual parenting language shall be applicable in this situation and shall be included in the order to be prepared by Mr. Skinner. The order shall be forwarded to Mr. Myers for approval as to form, and to this Court for execution.

The decree of divorce included the circuit court's ruling. This appeal followed.

For reversal of the circuit court's decision, appellant contends that the court erred in ruling that appellee stood in loco parentis to the child.¹ This court has traditionallyreviewed matters that sound in equity de novo on the record with respect to fact questions and legal questions. Hollandsworth v. Knyzewski, 353 Ark. 470, 109 S.W.3d 653 (2003). We will not reverse a finding made by the circuit court unless it is clearly erroneous. Stills v. Stills, 2010 Ark. 132, 361 S.W.3d 823. We have further stated that a circuit court's finding is clearly erroneous when, despite supporting evidence in the record, the appellate court viewing all of the evidence is left with a definite and firm conviction that a mistake has been committed. Bethany v. Jones, 2011 Ark. 67, 378 S.W.3d 731. We give due deference to the superior position of the circuit court to view and judge the credibility of the witnesses. Hunt v. Perry, 357 Ark. 224, 162 S.W.3d 891 (2004). This deference to the circuit court is even greater in cases involving child custody or visitation, as a heavier burden is placed on the circuit court to utilize to the fullest extent its powers of perception in evaluating the witnesses, their testimony, and the best interest of the children. Alphin v. Alphin, 364 Ark. 332, 219 S.W.3d 160 (2005).

The Latin phrase, “in loco parentis,” literally translated, means “in the place of a parent.” Simms v. United States, 867 A.2d 200 (D.C.2005). This court has defined in loco parentis as “in place of a parent; instead of a parent; charged factitiously with a parent's rights, duties, and responsibilities.” Standridge v. Standridge, 304 Ark. 364, 372, 803 S.W.2d 496, 500 (1991). A person who stands in loco parentis to a child puts himself or herself in the situation of a lawful parent by assuming the obligations incident to the parental relation without going through the formalities necessary to a legal adoption. Babb v. Matlock, 340 Ark. 263, 9 S.W.3d 508 (2000). This relationship involves more than a duty to aid and assist, and more than a feeling of kindness, affection, or generosity. Simms, supra.

One's mere status as a stepparent does not support a finding of in...