Dansby v. Dansby

189 S.W.3d 473

Robin Denise DANSBY v. Lathaire Wilfred DANSBY.

No. CA 03-741.

Court of Appeals of Arkansas, Divisions I, IV.

June 30, 2004.

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Dodson & Dodson, L.L.P., by: Richard N. Dodson, Texarkana, TX, for appellant.

Winona Griffen, Texarkana, TX, for appellee.

JOHN B. ROBBINS, Judge.

Appellant Robin Dansby appeals the order entered by the Miller County Circuit Court judge that changed joint custody between Robin and appellee Lathaire Dansby over their younger daughter Krysten to Lathaire's full custody. The parties married in 1984 and had Lynzi Dansby¹, born in 1985, and Krysten Dansby, born in 1997. They divorced at the end of July 1999, though the order was not entered until September 1999, but continued to live in the same household for another eight months, finally separating in the spring of 2000. Lathaire was the father of an older son in his twenties, two daughters born of his marriage to Robin, and a son conceived during the parties' marriage. The decree contemplated that the parties would have joint custody of Lynzi and Krysten. The decree specified that as concerned Krysten, the parties would alternate one-week periods of custody, from Friday evening to Friday evening. On three occasions leading up to the motion to change custody, Robin filed motions for contempt for Lathaire's failure to pay child support. Lathaire paid in full subsequent to each of these filings.

In response to the last of the three contempt motions filed by Robin, on November 27, 2002, Lathaire moved for contempt for Robin's failure to allow him his decreed joint-custody and moved to change custody based upon a change in circumstances. The cause was heard in January 2003, and the judge entered an order denying the contempt motion but granting the change of custody and allowing Robin visitation. This appeal resulted.

Appellant Robin challenges the trial judge's findings, asserting that they were clearly erroneous in two respects: (1) in concluding that there had been a material and substantial change in circumstances, and (2) in limiting Robin's visitation to alternate weekends, Wednesdays, alternate holidays, and one month in the summer. We affirm.

The standard of appellate review governing custody modifications is well settled. In child-custody cases, the primary consideration is the welfare and best interests of the child involved; all other considerations are secondary. Eaton v. Dixon, 69 Ark.App. 9, 9 S.W.3d 535 (2000). Custody will not be modified unless it is shown that there are changed conditions demonstrating that a modification is in the best interest of the child. Vo v. Vo, 78 Ark.App. 134, 79 S.W.3d 388 (2002). In cases involving child custody and related matters, we review the case de novo, but we will not reverse a trial judge's findings in this regard unless they are clearly erroneous. Deluca v. Stapleton, 79 Ark.App. 138, 84 S.W.3d 892 (2002). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been made. Smith v. Parker, 67 Ark.App. 221, 998 S.W.2d 1 (1999). Because the question of whether the trial court's findings are clearly erroneous turns largely on the credibility of the witnesses, we give special deference to the superior position of the trial judge to evaluate the witnesses, their testimony, and the child's best interest. Ford v. Ford, 347 Ark. 485, 65 S.W.3d 432 (2002).

The evidence at the hearing included the testimony of Lathaire, who testified that Robin basically let him have his younger daughter only when Robin was working her night shift at the hospital, although this still permitted each parent one-half of Krysten's time. Lathaire was concerned that Robin was drinking, smoking, and having boyfriends spend the night with Krysten present. Lathaire said that some of Robin's boyfriends had criminal histories and that Krysten was witness to violence at Robin's house. In addition, Lathaire objected to Robin putting Krysten in a biracial situation by dating white men.

In contrast, Lathaire said that he lived in a three-bedroom house with his older son, his seventeen-year-old daughter Lynzi, and Krysten. Lathaire said he also saw his twelve-year-old son from another relationship at least once or twice a month and paid support for him. Lathaire confirmed that he had many brothers and sisters in the immediate area to help care for Krysten when he was at work as a car salesman or when he had to work at the family business, which apparently was a local bar or tavern.

Lathaire's main concern was that even though Robin always smoked, drank, and had boyfriends, he could not monitor Robin's behavior after they separated. Lathaire complained that her smoking was detrimental to Krysten's asthma, and he could not prevent her being drunk in front of their daughter, or her having boyfriends stay overnight.

Lathaire explained that his older daughter Lynzi did not have a relationship with her mother Robin because Robin berated her and they did not get along. Lathaire acknowledged that Lynzi was not a perfect child. Lynzi had undergone an abortion, but was currently on birth control. Lynzi had been suspended from school once after a fight in which she was not the original aggressor, but otherwise, she was a fairly good student.

Lathaire admitted that he was arrested once while driving in a caravan from a Razorback game back home and that the children were with him, but he explained that he did not understand the police to be trying to pull his car over, he had a minor wreck, he went to the station, and he waited with his children on a bench until posting bail. Lathaire also confessed that he had fallen behind in child support from time to time, but he thought that he had the right to do so when Robin denied his court-ordered visitation. He understood differently now. Lathaire said he had yet to have a female visitor over in Krysten's presence, and he was bothered by what he characterized as Robin's revolving door of boyfriends. Lathaire also said that Robin had kept his daughter out at a restaurant past her bedtime on a school night, and Robin was drinking.

Lynzi testified that she was a senior in high school, that she had no relationship with her mother, and that her mother did not even give her a birthday or Christmas gift. Lynzi testified that she observed her mother get drunk and smoke in front of Krysten, as well as have boyfriends spend the night while Krysten was present. Lynzi said that her mother said derogatory things about her father and his family. Lynzi said that her mother was currently dating a white man. Lynzi reportedly found marijuana in her mom's house but did not tell her about it. Lynzi helped to care for her little sister when her father had to be away, and she assisted in transporting her sister back and forth between houses. Lynzi wanted her little sister to live with her at their father's house.

Robin testified that she and Lathaire had never abided by the original decree but that they had arranged it such that they each had Krysten about half the time. In fact, they continued to live together for months until Robin moved out of the marital home. Thereafter, she said he had no problem with having 4-3 day splits during each week to accommodate her work schedule at the hospital. Robin said she had worked graveyard shift (7 p.m. — 7 a.m.) for about twelve years, and she said her mother helped with Krysten when work prevented her from being at home on those occasions when Lathaire insisted on the full-week exchanges. Robin agreed that she would go back to the seven days on, seven days off schedule if that was what Lathaire wanted. Robin agreed that Lathaire was a good father and that Krysten loved her dad and spent time with him. However, Robin believed that she had more time to spend with her daughter, and she saw no reason to depart from their practice in the past of arranging it so that Krysten would never have to be with a sitter. At the time of the hearing on this matter, Krysten was five years old.

Robin pointed out that she had to seek court intervention three times to get her child support, but Lathaire would pay prior to coming to court. As to morals, Robin reminded the court that Lathaire impregnated a woman with his now twelve-year-old son while he and Robin were still married. Robin also pointed out that she was not racist like Lathaire and that, concerning Lynzi, he was too lenient and did not discipline Lynzi, which led to the discord between Lynzi and her mother. Robin said that the specific acts that Lynzi testified about were untrue, and furthermore that Lynzi never spent any time with Robin so that Lynzi would have no way of knowing what went on in her household. Robin feared that Krysten would befall the same behavioral problems later that Lynzi had already experienced by working her father against her mother.

Robin testified that she did not have a problem with one of Lathaire's sisters caring for Krysten because even though the aunt had apparently had a drug problem, she was good to Krysten. Robin said that she had a friend who formerly had a drug problem, but she underwent treatment and was better, similar to Lathaire's sister. Robin denied smoking in the house when Krysten was there, and she denied ever being drunk in front of her. Robin said that she did have a male overnight visitor once, but it was only because there was a winter storm and it was unsafe to leave. Robin denied any inappropriate behavior with him while Krysten was there. Robin explained that she did have Krysten out at Red Lobster on one occasion after her bedtime; Robin admitted to having one margarita. However, Robin said that this was a one-time occurrence.

Lathaire's older son Jason Dansby, age twenty, testified that he was in college and living with his father. Jason said he helped take care of Krysten when she was there, until their father...