Wagner v. Wagner, CA 06-951 (Ark. App. 2/28/2007)

• Decision Date: 28 February 2007
• Docket Number: CA 06-951
• Citation: Wagner v. Wagner, CA 06-951 (Ark. App. 2/28/2007), CA 06-951 (Ark. App. Feb 28, 2007)
• Parties: FAHTIMA SOHALA AYDANI WAGNER, Appellant, v. GEORGE JONATHAN WAGNER, Appellee.
• Court: Arkansas Court of Appeals

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FAHTIMA SOHALA AYDANI WAGNER, Appellant, v.GEORGE JONATHAN WAGNER, Appellee.

CA 06-951

Court of Appeals of Arkansas.

Division IV

February 28, 2007

Appeal from the Columbia County Circuit Court[No. E-01-172-5], Honorable Larry Chandler, Judge.

Affirmed.

JOHN B. ROBBINS, JUDGE

AppellantFahtima Sohala Aydani Wagner appeals the May 2, 2006 order of the Colombia County Circuit Court that granted custody of her daughter Bryce to her ex-husband, appelleeGeorge Jonathan Wagner.Appellant contends that the circuit court erred because there was no material change in circumstances from the first custody order, and further that it was clearly erroneous to conclude that Bryce's best interest was to be placed in appellee's custody.Appellant also purports to appeal the May 19, 2006, order that set appellant's child support duty at $38 per week.We affirm.

The following is a recitation of the facts leading to this appeal.The parties divorced in July 2001, when Bryce was a year and a half old.Both parents lived in Magnolia Arkansas.They agreed to joint custody, which the trial court approved.In practice, each parent had Bryce on alternating weeks.They divided extraordinary expenses incurred on Bryce's behalf, and therefore, there was no child support ordered at that time.Within a couple of years, the relationship between appellant and appellee soured as concerned the joint custody arrangement.Appellant moved to modify the decree in January 2004, asserting a material change in circumstances, specifically accusing appellee of unwillingness to work with appellant on shared custody exchanges.Appellant sought sole custody and child support.Appellee responded, denying the allegations, but also asserting a material change in circumstances warranting a change of custody to him and an award of child support from appellant.The parties were ordered to mediation by the trial court in July 2004, which was unsuccessful in resolving the ultimate dispute.The parties were able to resolve some issues regarding exchanging the child, her extracurricular activities, and church attendance.Nonetheless, appellee reiterated his request for a change of custody to him on the basis that he was in a stable marriage, expecting a new child with his wife, living in a suitable home, and earning a sufficient income to support his family.Appellee asserted that appellant had essentially a revolving door of paramours, no job, and no concerns about exposing their daughter to the men in her life.The cause came to be heard in April 2006.

Appellant appeared pro se, contending that she was unhappy about appellee's apparent attempt to replace her as Bryce's mother with his new wife.Appellant said she chose not to work, despite having a college education, because it freed her to be available at all times for her daughter, and she was not suffering financially because her parents allowed her to live in a house they owned.She occasionally worked for her parents or her boyfriend, earning necessary monies to pay for Bryce's extra expenses that she divided with appellee.She admitted that she had been in several relationships since she was divorced from appellant, including one brief failed marriage, and she admitted that she had stayed overnight with her current fiancé while her daughter was present, but she denied any wrongdoing or that it harmed her child in any way.She also admitted that she often spent weekends in Shreveport, Louisiana, with her fiancé where he lived, and that she occasionally took Bryce with her.She said, however, that generally she and Bryce slept in a different bedroom from her fiancé.Appellant acknowledged that Bryce had missed a few days of school when appellant had the child, but she said that Bryce was ill on those days.

Appellee testified about his steady income and four-year marriage to his current wife.Appellee stated that he ensured that Bryce attended church and was never tardy or unduly absent from school.He believed that appellant was less concerned, having been informed that Bryce was late for school on several Mondays when she had had Bryce over the weekend.Appellee expressed concern that appellant was content to live off her parents or to whomever she was engaged for support.Appellee admitted, however, that his present wife was not planning to return to her job as a nurse following the birth of their child.Appellee maintained that he could provide the stability that Bryce needed, which was his most pressing concern.

After taking the matter under advisement, the trial court issued an order stating that both parties had recognized that the joint custody arrangement was unworkable and both sought full custody.The order was signed on May 1 and filed on May 2, 2006.The judge stated that he was not awarding custody based upon superior morals of one parent over the other.Rather, the trial court expressed its experience that joint custody generally did not work over time and that children do better with a sole custodian.The order stated:

Based on a significant change in circumstances and after a careful consideration of what is in the best interest of the child, the court awards the care, custody, and control of Bryce to her father[.]

Because there was no reliable income information before him, the trial judge ordered appellant to provide such information upon which to enter an order on child support at a later time.The child support order was entered on May 19, 2006.On May 31, 2006, appellant filed a notice of appeal "from the Order issued by this Court on May 1, 2006 in the above styled matter."

The standard of review in child-custody appeals is well settled.Our 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.Digby v. Digby,263 Ark. 813, 567 S.W.2d 290(1978).We review the evidence de novo, but we will not reverse the findings of fact unless it is shown that they are clearly contrary to the preponderance of the evidence.Thompson v. Thompson,63 Ark. App. 89, 974 S.W.2d 494(1998).We also give special deference to the superior position of the trial court to evaluate and judge the credibility of the witnesses in child-custody cases.Hamilton v. Barrett,337 Ark. 460, 989 S.W.2d 520(1999).A finding is clearly against the preponderance of the evidence when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made.Hollinger v....