Glisson v. Glisson

538 S.W.3d 864

Kellie GLISSON, Appellant

v.Steven H. GLISSON, Jr., Appellee

No. CV–16–1051

Court of Appeals of Arkansas, DIVISION III.

Opinion Delivered: January 24, 2018

Worsham Law Firm, P.A., Little Rock, by: Richard E. Worsham, for appellant.

T. Clay Janske, for appellee.

BART F. VIRDEN, JudgeKellie Glisson appeals from the Garland County Circuit Court's order awarding joint custody to both parties, with primary custody to Kellie and visitation to Steven. She argues that the circuit court erred in classifying the custody awarded as joint custody and asks this court to clarify the decree by awarding her primary custody with visitation to Steven.¹ Alternatively, Kellie argues that if this court affirms the circuit court's award of joint custody, then the circuit court erred because the evidence does not show that joint custody is in the best interest of the children. Kellie also challenges the circuit court's award of child support. We affirm the circuit court's finding of joint custody, and we reverse and remand to the circuit court the issue of child support.

I. Factual History

On December 16, 2015, Kellie Glisson filed an amended complaint for divorce in the Garland County Circuit Court after sixteen years of marriage to Steven Glisson. The Glissons have two minor children, a daughter, H.G. (born 09/27/04), and a son, H.A.G. (born 03/31/07). In her complaint, Kellie asserted that the circuit court should award her primary custody of the children. Steven responded and requested joint custody. The parties submitted an agreed order on most of the issues relating to the divorce; however, custody and spousal support were to be settled by the circuit court.

At the hearing on the remaining matters, the court heard conflicting testimony from the witnesses regarding the parental fitness of the parties. Bruce Dodson, the Glisson's marriage counselor since the "early 2000s," offered the following testimony at the hearing. In approximately sixteen years of counseling, Kellie had never stated that Steven was a bad father or complained that he was violent. At times during counseling, Steven had become angry and frustrated and had abruptly left the session. Steven had used inappropriate, harsh language during some sessions, and during the summer the year before, marital counseling had become unproductive. Steven continued counseling on his own after the parties separated, and Dodson had not witnessed any angry outbursts from Steven in six months. During their counseling sessions and specifically around the time he confronted Kellie about her possible infidelity, Steven had reported having suicidal thoughts, but he had assured Dodson that he would not harm himself. Dodson considered Steven to be a good father and businessman, and he believed that Steven was not a danger to anyone.

Both Kellie and Steven testified extensively about some of the same incidents that occurred during their marriage. Kellie testified that their son, H.A.G., has sensory-processing disorder (SPD), and she described the difficulties H.A.G. experiences due to his SPD, such as feeling overwhelmed, being unable to focus, experiencing confusion, and having difficulty transitioning from one environment to another. Kellie explained that she had learned techniques to deal with H.A.G.'s sensory-processing issues, that H.A.G. is in occupational therapy for SPD, and that therapy had been very helpful. Kellie testified that Steven had not read the articles on SPD that she had given him and that Steven had dismissed H.A.G.'s SPD as out-of-control behavior. Kellie described an incident at a wedding in which H.A.G. became "loud and agitated" when Kellie, Steven, and H.A.G. were trying to enter the reception hall. She asserted that Steven forced H.A.G. to go inside and sit down and that H.A.G. had hidden under the table for a few minutes, which had angered Steven. Kellie convinced Steven to let H.A.G. sit under the table for a few minutes, and that after that H.A.G. was able to rejoin the reception.

Steven described the incident with H.A.G. at the wedding reception differently. He explained that H.A.G. climbed under the table and "Kellie just sat there and you know, thought that she should let H.A.G. act out and cause a scene." Steven testified that he and H.A.G. went outside and walked around for a while, got some food and, then came back in. Steven denied Kellie's assertion that he had been angry about the situation. Steven explained that he knew H.A.G. had been diagnosed with SPD and that he had to have patience with his son.

Kellie described H.G.'s allergy to corn and explained that it was important to avoid exposing H.G. to the allergen. She testified that she and Steven both prepared lunches for H.G., and she did not describe any negative incidents relating to Steven's handling of H.G.'s corn allergy.

Kellie testified that during their marriage she had handled most of the children's day-to-day activities. She opined that Steven did better with the kids on holidays and during the summer when there was no schedule to observe. Kellie asserted that Steven did not attend H.G.'s basketball games or school events and that Steven was a "fun dad, but there are boundaries and limitations to what he can provide as far as the emotional, physical and development state of our children."

By contrast, Steven testified that throughout their marriage he had routinely made breakfast, lunch, and dinner for the kids and Kellie, and that he, along with Kellie, had been responsible for the dishes and laundry. Steven testified that he helps the children with their homework and that he takes H.G. to basketball practice and attends her games. According to Steven, since the separation, Kellie had been "too wrapped up in herself" and that until recently Kellie had been out of town every weekend and had often relied on him for childcare while she traveled.

Kellie described several instances in which Steven had threatened suicide. Kellie recounted that during an argument, Steven had threatened to kill himself and had held a gun to his chin, and Kellie attributed Steven's behavior in part to his going off of his anxiety medication. Kellie also recalled that Steven had gotten upset and had left the house and stayed at a picnic area in the woods for about twenty-four hours.

Steven testified that during their marriage he had been depressed over his belief that Kellie had been having multiple affairs; he had put a gun to his head and considered taking his life, but he no longer felt this way, and he wanted to be here for his children. Steven testified that he had tried several antidepressants and anxiety medications over the years. Steven explained that he had gone off of them, but that he did feel that he needed them. As for the incident when he stayed in the woods for twenty-four hours, Steven testified that he left the house and stayed in the pavilion near the woods to pray and fast, which he considered normal behavior.

Both Kellie and Steven described a business trip to Galveston together. Both Kellie and Steven agreed that their intent had been to revisit a place they had enjoyed previously in an effort to revive their marriage. Kellie recounts that, while driving, they experienced technical trouble with the truck and trailer. She testified that Steven went into a rage over the issues with the vehicle and became very negative for the rest of the trip. When they arrived in Galveston late in the evening, the restaurant he had wanted to go to had closed, which further angered him. The Glissons went to a different restaurant, but Kellie explained that Steven was still angry, and he flipped over a chair. They went back to the hotel, where they argued, and Steven was so agitated that he could not sleep. Steven then left the hotel and stood on a bridge, which he did again the next night.

Steven's account differs from Kellie's. He recounts that while they were driving in heavy rain, the lights went out on the trailer, which caused them to arrive late to Galveston. He explained that he had been frustrated because things had not gone as planned. When they returned to the hotel, they argued about Steven's negativity and his belief that Kellie was having an affair. Steven was upset and could not sleep so he decided to take a walk and ended up on a fishing bridge. Steven explained that there had been other people on the bridge with him and that the police had instructed everyone to leave the bridge for traffic safety reasons. Steven denied any implication that he had been suicidal when he left the hotel.

Kellie and Steven also provided testimony regarding their parental fitness. Both parents testified that they are capable of handling the day-to-day aspects of the children's lives, and both parents produced witnesses who testified that each party is a fit parent. The attorney ad litem recommended joint custody and formulated the visitation schedule that was later adopted by the court.

The circuit court entered the divorce decree on August 26, 2016. The decree sets forth that the parents share joint custody of their minor children and that Kellie has primary custody. The decree specifies that during the school year, the children are with Steven every other Thursday through Monday. Steven is also allotted an additional overnight visit on the opposite Tuesday beginning after school and returning the children to school on Wednesday morning. Holidays and summer vacation are split evenly between the parents and rotated yearly. The parties are ordered to cooperate, be civil toward each other, foster love, respect, and communication between the children and the other parent, communicate with each other about the...