Ryan v. White

• Court: Arkansas Court of Appeals
• Writing for the Court: ROBERT J. GLADWIN, Chief Judge
• Citation: Ryan v. White, 2015 Ark. App. 494, 471 S.W.3d 243 (Ark. App. 2015)
• Decision Date: 23 September 2015
• Docket Number: No. CV–15–92,CV–15–92
• Parties: Arneshia L. Ryan, Appellant, v. Britney Q. White, Appellee.

2015 Ark. App. 494

471 S.W.3d 243

Arneshia L. Ryan, Appellant,

v.Britney Q. White, Appellee.

No. CV–15–92

Court of Appeals of Arkansas, DIVISION II.

OPINION DELIVERED September 23, 2015

Jeanette Whatley, for appellant.

Appellate Solutions, PLLC d/b/a/ Riordan Law Firm, by: Deborah Truby Riordan, Little Rock, for appellee.

Opinion

ROBERT J. GLADWIN, Chief Judge

Appellant Arneshia Ryan appeals the July 28, 2014 order entered by the St. Francis County Circuit Court that awarded joint custody of the parties' minor child to appellant and appellee, Britney White, the father of the child. Appellant argues that the circuit court erred in giving a preference to joint custody in this case and in finding that appellee met his burden required by Arkansas Code Annotated section 9–10–113(Repl. 2009) for an award of custody. We affirm.

The parties are parents to a son, J.W., born out of wedlock on June 26, 2012. The parties dated for nine years and lived together in appellee's home for the last four years of their relationship. During that time, appellant became pregnant with J.W. When she was five months pregnant, she moved out of appellee's house based on suspicions that appellee had been unfaithful. Appellant then cancelled her phone service and moved again without informing appellee of her new contact information. Appellee repeatedly, but unsuccessfully, sought to contact appellant after she had moved out. When appellee realized that appellant was not going to allow him to be involved for the remainder of the pregnancy, he filed a complaint to establish paternity, to request that he be allowed to be present at his son's birth, and to establish joint custody of the child upon his birth. Appellant responded to appellee's complaint, admitting paternity and requesting full custody of the baby. Because appellant did not inform appellee about the impending birth, appellee, of his own initiative, made multiple trips to the hospital around the due date to try to see his newborn son. On his fifth trip, someone at the hospital told appellee that he had arrived two days too late.

Appellant refused to allow appellee to see J.W. until September 3, 2012, ten weeks after the child had been born. Appellee and appellant then arranged occasional visits among appellant, appellee, and J.W. during the fall of 2012. Those visits continued until February 2013, when appellant received notice that a “temporary hearing” on appellee's complaint had been scheduled for May 2013. From February until May 2013, appellant did not permit appellee to see J.W. On June 11, 2013, the circuit court filed an order, signed by counsel for both parties which, in accordance with the May 21, 2013 hearing, established appellee's paternity and granted appellant temporary physical custody “subject to the right of reasonable visitation.” Appellee was given a phased-in visitation schedule progressing to standard (Schedule A) visitation.

Appellant deprived appellee of his first scheduled visitation in June 2013 and on two subsequent occasions in December 2013, including Christmas. Thereafter, appellee filed a petition for contempt. At the January 16, 2014 hearing scheduled for a final custody determination, Judge Hudson recused but noted that her prior orders remained in effect and were to be followed. The very next day, however, appellant denied appellee's scheduled visitation and refused to allow contact between J.W. and him. Appellee filed a second verified petition for contempt on January 23, 2014, noting that appellant had denied him scheduled weekend visitations in January 2014 without explanation. An order to appear and show cause was issued on January 29, 2014, setting February 26, 2014, as the hearing date on appellee's petitions for contempt. On November 20, 2014, a nunc pro tunc order reverting to the February 26, 2014 hearing was entered, finding appellant in “willful contempt” of the circuit court's visitation orders, changing the child's last name to appellee's, and reserving the issue of sanctions until the final custody hearing on March 10, 2014.

At the March 10, 2014 hearing, appellant acknowledged her history of unilaterally cutting off appellee's visitation. She testified that she has no concerns with the physical attributes of appellee's home, other than a stray shovel that might be lying in the back yard, and she agreed that appellee is a good father who is very concerned about J.W. and has been involved to the extent that he has been allowed. Appellant testified that she knew of no reason why appellee could not adequately care for J.W. in his home. She further acknowledged that a father's relationship with a child is as important as the mother's and that a father should be permitted to spend as much time with his child as possible. Appellant's only disagreement with appellee's request for joint custody was that she felt it would confuse J.W., being almost two years old, but she did express a desire to “co-parent” with appellee.

Appellee expressed multiple concerns with appellant having primary custody of J.W., including her fluctuating work schedule, her mother keeping a loaded gun in the apartment and having fired it with J.W. present, her cutting appellee off from contact with J.W. when she became angry, and her fictitious report of child abuse made when she was angry because appellee had J.W.'s hair cut. Appellee acknowledged his continued willingness to work with appellant to care for J.W., and he stated that between February 20, 2014, and the March 10, 2014 hearing, the parties had been able to work together. Appellee requested a seven-day schedule where both parents would have equal time with J.W. to eliminate appellant's bargaining ability or “holding him hostage over my head and blackmailing me with my son.”

After hearing the testimony of appellee, appellant, appellee's mother, the DHS investigator, and appellant's character witness, the circuit court noted that appellee had sustained his statutory burden to be awarded custody and that both parties are “suitable people to have custody of this child.” The circuit court acknowledged that as of that date, both parties had presented testimony regarding their willingness to work together and confirmed that they had successfully done so in the weeks leading to the hearing.

In its order entered July 25, 2014, the circuit court found that both parties were capable of providing nurture and support to J.W. and that both were appropriate for placement. The circuit court found that appellee had established paternity and sustained his burden of providing financial and emotional support to J.W. in order to sustain a custody request. The circuit court noted that it was cognizant of the fact that the Arkansas Legislature has directed that joint custody is favored, as stated in Arkansas Code Annotated section 9–13–101(a)(l)(A)(iii)(Supp. 2013), and awarded joint custody with a seven-day rotation. Additionally, the circuit court awarded appellee $500 as a sanction against appellant for contempt. Appellant filed her timely notice of appeal on August 8, 2014.

The primary consideration in child-custody and visitation cases is the welfare and best interest of the child involved. All other considerations are secondary. Donato v. Walker,2010 Ark. App. 566, 377 S.W.3d 437. On appeal, this court reviews the evidence de novo, but we will not reverse unless the findings are clearly erroneous. Black v. Black,2015 Ark. App. 153, 456 S.W.3d 773. This necessarily turns, in large part, upon credibility determinations, and we give special deference to the superior position of the circuit court to evaluate the witnesses, their testimony, and the child's best interest. Id.There are no cases in which the superior position, ability, and opportunity of the circuit court to observe the parties carry as great a weight as those involving children. Id.We do not reverse unless there is clear error, meaning that after conducting a de novo review we are left with a definite and firm conviction that a mistake was made.Id.; see alsoFox v. Fox,2015 Ark. App. 367, 465 S.W.3d 18.

Also, this court reviews issues of statutory interpretation de novo. Steele v. Lyon,2015 Ark. App. 251, 460 S.W.3d 827. In reviewing issues of statutory interpretation, a court will determine the meaning and effect of a statute first by construing the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id.When the statute's language is clear and unambiguous, there is no need to look further and apply the rules of statutory construction. Id.

Several statutes are relevant to the current appeal. Specifically, Arkansas Code Annotated section 9–10–113sets forth the law regarding custody of a child born out of wedlock:

(a) When a child is born to an unmarried woman, legal custody of that child shall be in the woman giving birth to the child until the child reaches the age of eighteen (18) years unless a court of competent jurisdiction enters an order placing the child in the custody of another party.

(b) A biological father, provided he has established paternity in a court of competent jurisdiction, may petition the circuit court in the county where the child resides for custody of the child.

(c) The court may award custody to the biological father upon a showing that:

(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.

Additionally, Arkansas Code Annotated section 9–10–109(Repl. 2009) addresses the establishment of paternity:

(a)(1)(A) Subsequent to the execution of an acknowledgment of paternity by the father and mother of a child pursuant to § 20–18–408 or § 20–18–409, or a similar acknowledgment executed during the child's minority, or subsequent to a finding by the court that the putative father in a paternity

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