Donham v. Frauenthal

• Court: Arkansas Court of Appeals
• Writing for the Court: MIKE MURPHY, Judge
• Citation: Donham v. Frauenthal, 2021 Ark. App. 183, No. CV-20-449 (Ark. App. Apr 21, 2021)
• Decision Date: 21 April 2021
• Docket Number: No. CV-20-449,CV-20-449
• Parties: JESSICA DONHAM APPELLANT v. JAKE FRAUENTHAL APPELLEE

2021 Ark. App. 183

JESSICA DONHAM APPELLANT v. JAKE FRAUENTHAL APPELLEE

No. CV-20-449

ARKANSAS COURT OF APPEALS DIVISION II

April 21, 2021

APPEAL FROM THE BENTON COUNTY CIRCUIT COURT

[NO. 04DR-19-553]

HONORABLE DOUG SCHRANTZ, JUDGE

AFFIRMED

MIKE MURPHY, Judge

On April 3, 2019, the appellant, Jessica Donham, filed a complaint against the appellee, Jake Frauenthal, to establish the paternity of her son, CDF, born in January 2019. In that complaint she alleged that Jake is the father, she is the proper person to have custody, and that Jake should receive visitation and pay child support. Jake answered, admitted paternity, and affirmatively pleaded that the court should award the parents joint custody. On June 3, the circuit court entered a temporary order finding that Jake is the biological father and set out a visitation schedule. A review hearing was set, but at the outset of the hearing, the court and the parties established that it was actually a final hearing. Jessica's counsel provided that Jessica was asking that she be awarded primary custody of CDF subject to standard visitation by Jake. Jake's counsel responded that their position was that joint custody was appropriate.

Jessica testified first. She stated that she was a recruiter and in online school full time, that Jake is an active parent who paid her monthly child support, and that they have coparented well together. She agreed that Jake is eager to help take care of CDF, change diapers, come over when CDF is sick, and overall be an active parent to CDF. She stated he supported her decision to breastfeed. She reiterated that they communicate and coparent well, but that her schedule allows her to stay home with CDF, and she believes that she should have primary custody.

Next, Jake testified. He spoke about his employment and his take-home pay. He said he thinks Jessica is a very good mother. He said that Jessica was not letting him see CDF as much as he would like, and he wants joint custody of CDF. He testified that they communicate well and even did some things together like take CDF to the zoo and the fair. Both parents conceded that they do argue sometimes but overall are capable of working things out.

The court then heard testimony from a few family members of both parties; everyone testified that both parties are good parents, no one spoke ill of either parent, and Jake's family reiterated that he wants more time with his son than Jessica is letting him have. The court heard closing arguments. Counsel for Jessica stated:

On the joint custody, I still don't understand the statute of the preference. I don't know what that means. I don't know what we are. But based upon the facts here, we have a traditional custody/noncustodial arrangement. I don't see any different based upon the previous orders of the Court. Even from the defendant's admissions, I believe that he believes that's the same and that these people get along great. I don't anticipate there to be any problems moving forward. We would just ask that she be awarded primary custodial parent subject to the Court's standard visitation scheduleto be gradually implemented as the Court sees fit, child support be set commensurate with his earnings, and I think we need to fix this insurance matter. I think they're maybe paying too much and they could probably do something a little different in that regard.

Jake's counsel made closing argument, and then from the bench, the court ruled that the parents will have joint custody. It was impressed by how involved both parents wanted to be and noted that no one had anything ill to say about the other. It remarked that CDF has a lot of supportive grandparents and family members and that the parents demonstrated they are capable of working together. It found that it would be in CDF's best interest to award joint custody. The final order reflected this. The order further states that "both parents are good parents and both want to be actively involved in the life of the minor child," that the parties have cooperated and communicated since the minor child was born, and that joint custody is preferred in Arkansas and the parties shall have joint custody.

Jessica then filed a motion to amend the final order or, in the alternative, a motion for a new trial. She argued that because Jake didn't file a petition for custody, the court was procedurally barred from awarding him joint custody. She further argued that Jake did not satisfy an element of the requirements for awarding a father custody through a paternity proceeding. She asked that the final order be amended or vacated. Jake responded.

The motion was deemed denied, and Jessica correctly and timely appealed from both the final order and the deemed denial of her posttrial motion. On appeal, Jessica argues that the circuit court clearly erred when it granted joint custody because Jake (1) never filed a petition for custody; (2) did not prove that a material change in circumstances occurred; and(3) did not satisfy an element of Arkansas Code Annotated section 9-10-113(c) (Repl. 2020) to warrant a custody award.

Arkansas law is well settled that the primary consideration in child-custody cases is the welfare and best interest of the child; all other considerations are secondary. Wymer v. Hutto, 2014 Ark. App. 497, 442 S.W.3d 912. In reviewing child-custody cases, we consider the evidence de novo but will not reverse a circuit court's findings unless they are clearly erroneous. Id. We give due deference to the superior position of the circuit court to view and judge the credibility of the witnesses. Id. This deference to the circuit court is even greater in cases involving child custody, as a heavier burden is placed on the circuit court to use to the fullest extent its powers of perception in evaluating the witnesses, their testimony, and the best interest of the child. Id.

Jessica first argues that the circuit court clearly erred when it awarded joint custody because Jake never petitioned the court for custody. This argument was not made to the circuit court until Jessica's posttrial motion, and it is therefore not preserved for our review. It is well settled that our appellate courts will not consider an argument made for the first time in a posttrial motion. Quattlebaum v. McCarver, 2013 Ark. App. 376, 5. An issue must be presented to the circuit court at the earliest opportunity in order to preserve it for appeal. Plymate v. Martinelli, 2013 Ark. 194 (refusing to address an argument concerning the constitutionality of a statute where it was not raised until the motion for new trial or for reconsideration). Here, the issue of custody was squarely before the circuit court at the final hearing. Jake asserted in his answer that both parents are fit and that joint custody isappropriate. At the final hearing, Jessica's counsel requested that the circuit court grant her sole custody subject to Jake's visitation. Both parties presented evidence relating to custody, and in Jake's counsel's opening and closing remarks, he asserted that he was seeking joint custody and that the court should award joint custody. Never once did Jessica's counsel assert that Jake was procedurally barred from receiving an award of joint custody at the time of the final hearing.

Jessica next argues that Jake did not prove a material change in circumstances sufficient to warrant a change in custody. Citing Rivers v. Deboer, 2019 Ark. App. 132, 572 S.W.3d 887, she contends that the acknowledgement of paternity operated as "prior paternity order" thus requiring Jake to prove a material change in circumstances to change custody from her solely to both of them jointly. This point hinges on paragraph 3 in the temporary order, where the court found:

3. That paternity has previously been acknowledged at the time of birth and the Petitioner's name is already on the minor child's birth certificate.

However, the very next paragraph in that order goes on to read:

4. That Jake Frauenthal, the Defendant herein, is the biological father of [CDF], born on the 30th day of January, 2019, in Benton County, Arkansas, and paternity is hereby established. That pursuant to this

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