Roper v. O'Neal
| Decision Date | 23 September 2020 |
| Docket Number | No. CV-19-866,CV-19-866 |
| Citation | 2020 Ark. App. 431 |
| Parties | ASHLEY ROPER APPELLANT v. TRAVIS O'NEAL APPELLEE |
| Court | Arkansas Court of Appeals |
APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT
AFFIRMED
This case arises from a custody dispute between appellant Ashley Roper and appellee Travis O'Neal over their daughter, A.O. The Sebastian County Circuit Court awarded primary custody of A.O. to Travis, subject to Ashley's visitation. On appeal, Ashley argues that the circuit court clearly erred in finding that placing custody of A.O. with Travis was in the child's best interest. We find no error and affirm.
Ashley and Travis began dating in 2013, and Ashley gave birth to A.O. in May 2014. They lived together as a couple until an argument in April 2018 ended their relationship, and Ashley moved with A.O. to Texas. After the separation, Travis filed a petition to establish paternity, custody, visitation, and support alleging that he was in a better position to provide a stable home environment for A.O.1 Ashley answered and counterclaimed arguing that she was the fit and proper person to have custody of A.O. The circuit court appointed an ad litem to represent A.O.'s best interest.
At a temporary hearing, Ashley and Travis agreed that Ashley should have temporary custody pending a final hearing. Subsequently, the court entered a temporary order establishing Travis's paternity of A.O., granting temporary custody of the child to Ashley pending a final hearing, awarding Travis visitation every other weekend, and ordering him to pay temporary child support.
The parties proceeded to a final hearing at which they each offered their own testimony as well as that of several witnesses. Following the hearing, the circuit court entered its order finding that it was in A.O.'s best interest for primary custody to be awarded to Travis. Ashley was granted the court's standard visitation and was ordered to pay child support of $188 biweekly. Ashley filed a timely notice of appeal and now argues that the circuit court erred in awarding custody of A.O. to Travis.
Arkansas law is well settled that the primary consideration in child-custody cases is the welfare and best interest of the children; all other considerations are secondary. Starr v. Starr, 2015 Ark. App. 110, at 6-7, 455 S.W.3d 372, 375-76; Evans v. McKinney, 2014 Ark. App. 440, at 4, 440 S.W.3d 357, 359. Our standard of review in child-custody cases is wellestablished. We consider the evidence de novo but will not reverse unless the circuit court's findings are clearly erroneous or clearly against the preponderance of the evidence. Delgado v. Delgado, 2012 Ark. App. 100, at 4, 389 S.W.3d 52, 56. Findings are clearly against the preponderance of the evidence when we are left with an irrefutable and express belief that a mistake has occurred. Jackson v. Littleton, 2018 Ark. App. 511, at 3, 561 S.W.3d 352, 354.
In her sole argument on appeal, Ashley contends that the circuit court clearly erred in awarding Travis primary custody of A.O. when she "had been the primary caregiver for the child throughout the child's entire life and the only relevant difference between the parties was that [Travis's] income exceeded that of [Ashley's]." She notes that the court did not detail any specific findings as the basis for its award of custody, and she asserts that the "only apparent difference" between her and Travis was the disparity in their financial situations.
Admittedly, the court did receive evidence concerning the disparity in their financial situations. Travis had been steadily employed at Baldor for eight years, has a 401k plan, and was paying child support. Ashley was employed but made less money than Travis. In fact, her own bank records introduced at the March 2019 hearing showed that her bank account had a negative balance in the last few months of 2018.
We disagree, however, with Ashley's assessment that the "only apparent difference" was this financial disparity. We conclude that there was ample basis for the circuit court'sdecision that it was in A.O.'s best interest to be placed with Travis because of Ashley's overall instability. Ashley is less financially stable than Travis, but this financial instability is greater than a disparity of income. In addition to making less money, Ashley experienced difficulties meeting A.O.'s child-care and clothing needs. Ashley attempted to handle these difficulties by obtaining assistance from a church and by creating a Go Fund Me account. When Travis offered to assist Ashley and A.O. financially, such as by paying for daycare or offering to buy clothing or shoes, Ashley refused the offer, stating that she "did not want to help [him] look better in court." Instead, she wanted him to pay cash directly to her. Further, Ashley was driving a vehicle titled in Travis's name, did not have insurance on the vehicle, and had incurred several hundred dollars' worth of bills from the Texas Toll Authority. Because he was listed as the owner of the vehicle, Travis had to pay the toll charges. When he addressed the situation with Ashley, she advised him to deduct the money owed from her child support.
Ashley's instability is not limited to her financial issues, and the circuit court heard other evidence that concerned each party's stability and fitness. In both his pleadings and his testimony, Travis stressed Ashley's frequent moves and lack of employment. The circuit court heard testimony that after the parties' separation, Ashley and A.O. had resided at five different locations before finding a permanent place to live. Travis, however, had lived in the same duplex for more than three years. Travis also...
To continue reading
Request your trial