Opinion
No. CV-18-753
05-08-2019
ADRIAN HOBART APPELLANT v. GEORGE ALCARAZ APPELLEE
Daniel Stewart, for appellant. Walters, Gaston, Allison & Parker, by: Derick Allison, for appellee.
APPEAL FROM THE LOGAN COUNTY CIRCUIT COURT, SOUTHERN DISTRICT
[NO. 42BDR-16-48] HONORABLE DAVID H. MCCORMICK, JUDGE AFFIRMED WAYMOND M. BROWN, Judge
Appellant appeals from the circuit court's order changing custody of E.A. and A.A. from appellant to appellee. Appellant's sole argument on appeal is that the circuit court erred in not requiring proof of a material change in circumstances before changing custody. We affirm.
Appellee, a resident of New Mexico, filed a complaint for paternity and to establish a visitation schedule on July 7, 2016, seeking an appropriate visitation schedule and amount of support—though he had "been voluntarily paying support for the minor children for some time"—upon a determination of paternity. Following a March 2, 2017 hearing, the circuit court entered a temporary order on September 12, 2017, establishing appellee's paternity of the minor children, giving custody of the children to appellant, and awarding child support to appellant.
The paragraph dealing with child support initially states that the "Defendant"—appellant—was ordered to pay child support, but the remainder of the paragraph and all subsections refer to "Plaintiff"—appellee. Accordingly, we treat the reference to "Defendant" therein as a scrivener's error.
Appellant filed a verified petition to modify visitation on October 19, 2017, based on a "physical altercation with the oldest child, [E.A.], age 14"; appellee's "treatment of [E.A.] during visitation [that was] disrespectful and offensive"; and because "appellee "yell[ed], use[d] profanity and call[ed] the child vulgar names." Appellant sought termination of visitation between appellee and E.A.
On November 1, 2017, appellee filed a motion to modify custody, asserting that appellant "[had] insisted on a course of behavior so as to discourage the parties' minor children from attending school regularly, recognize the value of hard work, and otherwise applying themselves at whatever task they may be doing." He went on to assert that appellant had "created an unwholesome environment wherein her laziness, inattentiveness, and lack of structure [were] negatively impacting the minor children." Accordingly, appellee asserted that appellant had "established a situation that [was] detrimental to the best interest of the minor children." He sought custody and child support.
Following a hearing on April 5, 2018, the circuit court entered an order on May 29, 2018, in which it found that it was in the children's best interest to award custody of the children to appellee with standard visitation awarded to appellant. Additionally, appellant was ordered to pay child support. This timely appeal followed.
Child-custody cases are reviewed de novo, but we will not reverse a circuit court's findings of fact unless they are clearly erroneous. A finding of fact is clearly erroneous if, after reviewing all the evidence, the appellate court is left with a definite and firm conviction that a mistake has been made. The question of whether a circuit court's findings are clearly erroneous turns largely on the credibility of the witnesses; therefore, we give special deference to the circuit court's superior position to evaluate the witnesses, their testimony, and the child's best interest. There are no cases in which the circuit court's superior position, ability, and opportunity to observe the parties carry as great a weight as those involving minor children. The primary consideration in child-custody cases is the welfare and best interest of the children; all other considerations are secondary.
Louton v. Dulaney, 2017 Ark. App. 222, at 8, 519 S.W.3d 367, 372 (citing Overstreet v. Overstreet, 2013 Ark. App. 710, 430 S.W.3d 857).
Id.
Id.
Id.
Id. (citing Starr v. Starr, 2015 Ark. App. 110, 455 S.W.3d 372).
Appellant argues that the circuit court erred in not requiring proof of a material change in circumstances before changing custody from appellant to appellee. She essentially argues that this matter was a modification of custody instead of an initial determination of custody, the former of which has the more stringent standard of requiring a material change in circumstances. This court is unable to address this argument.
The following exchange occurred below between the circuit court, appellee's counsel, and appellant's counsel:
THE COURT: All right. Counsel, looking through the file, I know we let [appellee] go first, but the file, to me, reflects we had a petition for establishment of paternity, we had a temporary agreed order that said that they're [sic] was paternity and set up visitation and other-addressed a lot of issues. It's pretty much like a final order but it says temporary order and the petitions after that say file to modify the temporary order. So I don't see there's ever been any final order on an initial determination of custody.
Now, is that wrong and [sic] what I see in the file?
APPELLEE'S COUNSEL: Judge, I think the March 2017 order would have been the last order. Was that temporary, and that probably was the temporary order.
. . . .
THE COURT: Temporary order it says March 2, it wasn't filed until September 12.
APPELLEE'S COUNSEL: Judge, that sounds right.
THE COURT: Okay. All right. Well, it says temporary order and I don't see anything else. OK?
Now, the reason that's important, counsel, because the standard on which I decide the case varies if it's an initial custody determination or if it's a change of custody.
I see this as being an initial determination of custody on the merits. Do either of you disagree with that?
APPELLEE'S COUNSEL: No, Your Honor.
APPELLANT'S COUNSEL: No, Your Honor.
THE COURT: Okay. Because it makes a difference in the standard I apply. Obviously, it's the best interest of the child and looking at both parents and the circumstances that's there is the initial, and the secondary is being a change, you have to prove material and significant change of circumstances and then the best interest of the child as well.In appellant's three-and-a-quarter-page analysis of why the circuit court erred in changing custody, she fails to address this exchange.
So both of you agree this is an initial custody determination and that's the basis of the decision I'm making?
APPELLEE'S COUNSEL: Yes, Your Honor.
APPELLANT'S COUNSEL: Yes.
At the outset, this court notes that appellant did not object to the circuit court's determination that the matter was an initial determination and not a modification. Accordingly, because no allegation of error was raised below, we cannot address the merits of the issue. However, even if appellant had raised this argument below, the above-referenced exchange makes it clear that she agreed with the circuit court's determination. An appellant may not complain on appeal that the circuit court erred if she induced, consented to, or acquiesced in the circuit court's position.
Myers v. McCall, 2009 Ark. App. 541, at 3, 334 S.W.3d 878, 880 (citing Lewis v. Robertson, 96 Ark. App. 114, 239 S.W.3d 30 (2006); Norman v. Cooper, 101 Ark. App. 446, 278 S.W.3d 569 (2008)).
Gray v. Moreland, 2010 Ark. App. 207, at 7, 374 S.W.3d 178, 182 (citing Keathley v. Keathley, 76 Ark. App. 150, 61 S.W.3d 219 (2001)). --------
Affirmed.
HARRISON and HIXSON, JJ., agree.
Daniel Stewart, for appellant.
Walters, Gaston, Allison & Parker, by: Derick Allison, for appellee.