Witcher v. Witcher
| Decision Date | 13 September 2006 |
| Docket Number | NO. DR 2004-1667-5,CA05-1160,DR 2004-1667-5 |
| Parties | MARVIN DEWAYNE WITCHER APPELLANT v. MICHELLE KATHERIN WITCHER APPELLEE |
| Court | Arkansas Court of Appeals |
NOT DESIGNATED FOR PUBLICATION
APPEAL FROM BENTON COUNTY CIRCUIT COURT
This is a divorce case. The appeal is from the trial court's order denying both parties' request for a divorce, ordering each party to share physical custody of their child, and ordering Appellant Marvin Dewayne Witcher ("Dewayne") to pay $96 per week in child support. The order did not grant either party primary custody of the minor child. Dewayne appeals the trial court's order, arguing three points on appeal: (1) the trial court erred in refusing to grant Dewayne a divorce upon the grounds of general indignities, (2) the trial court erred in denying Dewayne primary custody of his and appellee Michelle Witcher's son, and (3) the trial court erred in requiring Dewayne to pay child support when Dewayne and Michelle share an equal amount of parenting time. We affirm in part, reverse in part, and reverse and remand in part.
Dewayne and Michelle were married in May 2003 and separated in October 2004. During the brief marriage, Dewayne and Michelle went through four temporary separations. Their son, Joseph, was born on May 20, 2004. Michelle also has custody of her older daughter, Ashley, from a previous marriage.
Michelle filed for divorce on the ground of general indignities, and Dewayne counterclaimed for divorce on the same ground. At the hearing, Michelle testified about an altercation that occurred at their home that prompted her to move out. Dewayne took Joseph to his mother's house because there was some noise in the house. Michelle walked over to Dewayne's mother's house and retrieved Joseph. Later, Dewayne's sister came over to the house and started hitting Michelle. Michelle called the police. Dewayne's sister was arrested. Michelle left the house, and that was the beginning of the last separation.
According to Michelle, she was the primary caretaker of Joseph when she was not at work, although Dewayne cared for him "once in awhile." Michelle stated that she did most of the cooking and cleaning in the home. Dewayne's mother took care of Joseph when Michelle was at work, although Michelle admitted that when she was not working, Joseph still stayed most of the time at Dewayne's mother's house. Michelle worked three days a week during the marriage but was unemployed at the hearing. Michelle testified that Dewayne wanted her to stay at home with the children, but she wanted to work. Michelle presently attends anger-management classes and sees a counselor for an anger management problem. She told one doctor that her anger outbursts consist of yelling, cursing, and punching holes in walls, and that the outbursts began after the birth of her daughter. According to Michelle, she used to lose her temper, but she only gets frustrated now and has learned to control her temper. She admitted that she has trouble getting along with co-workers, even though she denied this at the temporary hearing. She also admitted that she has had suicidal thoughts but would never harm herself.
According to Michelle, Dewayne has hit her twice. On one occasion, Dewayne hit her in the face and told her to be quiet. On another occasion, while she was pregnant with Joseph, he "hit [her] on the shoulder and knocked [her] down."
Dewayne testified that he is self-employed doing excavation and dirt work. He stated that, since Joseph was born, he goes to work around 10:00 a.m. and stays until around 2:00 or 3:00 p.m. He stated that it was difficult to determine how much money he made in one month because his salary greatly fluctuated from month to month.
Dewayne denied that he ever slapped or hit Michelle. He did say that he "pushed her away and she fell." He stated that he called her mother and apologized for that. He admitted that he preferred Michelle to stay home and not work. Dewayne also admitted that he was approximately $700 behind in child-support payments for a daughter, Sara, from a previous relationship. Dewayne testified that Michelle is not a good mother because of her anger problem. According to Dewayne, he was the primary caretaker of Joseph when he and Michelle were married. He admitted that, on the days he had to work, Michelle would care for Joseph.
Dewayne testified that, when Michelle had an anger outburst, she would throw things, curse, and slam doors. She would have an outburst approximately every three days. According to Dewayne, Michelle sometimes scared Ashley. Dewayne stated that he blamed Michelle for most of the arguments during their marriage.
Dewayne admitted that he cannot read. He stated that he would hire tutors if necessary to help Joseph with his school work when the time came. He also stated that his family would be able to help Joseph with his school work. According to Dewayne, he would be able to spend "almost all of the day with [Joseph]" when he was not at work. When his son was in his custody, he cookedfor him and bathed him.
Dewayne's daughter, Sara, who was thirteen at the time of the hearing, testified that Dewayne would call her a couple of times a month and then he would disappear for a year or two. She stated that she did not want to get attached to Dewayne for fear of getting hurt but that she would like to have a normal relationship with him. Sara's mother, Beverly McCarver, testified that Dewayne had been invited to birthday parties in the past but never showed up. According to Beverly, Dewayne has seen Sara three times in the last couple of years.
Michelle's mother and Dewayne's mother testified at the hearing. There was testimony from a few witnesses who had each witnessed one of Michelle's anger outbursts. There was also testimony from Michelle's friends that she was a good mother.
After the hearing, the trial court denied a divorce to both parties, finding that "both parties are at equal fault for the break down of this marriage [f]rom [Michelle's] temper tantrums to Dewayne's laying on hands...." The trial court continued the three-day visitation schedule that had been ordered at the temporary hearing. Michelle would have Joseph for three days and Dewayne would have Joseph for three days with the exchange taking place every fourth day. The trial court conditioned Michelle's custody period upon her seeking immediate help from a psychiatrist for her anger problem. Dewayne appeals the trial court's order. Michelle did not file a cross-appeal.
For his first point on appeal, Dewayne argues that the trial court erred in refusing to grant him a divorce upon the grounds of general indignities. The standard of review in this case is de novo. Rocconi v. Rocconi, 88 Ark. App. 175, _S.W.3d_(2004). On appeal, this court will not reverse the lower court's findings unless they are clearly erroneous. Id. A finding is clearly erroneous when, although there is enough evidence to support it, the reviewing court on the entireevidence is left with a definite and firm conviction that a mistake has been made. Id. Because divorce is a creature of statute, it can only be granted upon proof of a statutory ground. Id. In this case, the action for divorce was based upon the grounds of general indignities. In order to obtain a divorce on that ground, the plaintiff must show a habitual, continuous, permanent, and plain manifestation of settled hate, alienation, and estrangement on the part of one spouse, sufficient to render the condition of the other intolerable. Id. General indignities have been defined as rudeness, unmerited reproach, contempt, and studied neglect. Id. The testimony of the plaintiff as to the ground for divorce is not sufficient; the plaintiff's testimony must be corroborated by other testimony. Id.
Here, the trial court, apparently relying on the doctrine of recrimination, found that both parties were equally at fault for the breakdown of the marriage. The doctrine of recrimination provides that, when the conduct of both parties has been such as to furnish grounds for divorce, neither of the parties is entitled to relief. Rocconi, supra. This doctrine only applies when both parties are equally at fault. Id; Posey v. Posey, 268 Ark. 894, 597 S.W.2d 834 (1980); Weber v. Weber, 256 Ark. 549, 508 S.W.2d 725 (1974). When one party's conduct is more egregious than the other party's conduct, it is proper to grant a divorce to the party whose conduct is the lesser of the two. Rocconi, supra. If it appears to the court that both parties have been guilty of the offense or injury complained of, then no divorce shall be granted or decreed. Ark. Code Ann. § 9-12-308 (Repl. 2002).
The trial court here did not find one party's conduct to be more egregious than the other's conduct. Both Dewayne and Michelle sought a divorce based on general indignities. There was testimony from several witnesses that Michelle had serious anger problems, which resulted in heryelling, screaming, calling Dewayne obscene names, and breaking things. Further testimony from Dewayne, Michelle, and Michelle's mother revealed that Dewayne often criticized Michelle for her decision to work and either slapped or pushed Michelle, while she was pregnant, and she fell to the ground. Both parties admitted to fighting and fussing back and forth. The reviewing court in a divorce action gives due deference to the trial court's superior position to determine the...
To continue reading
Request your trial