House v. House

678 S.W.3d 824

David Brad HOUSE, Appellant

v.Karmen HOUSE, Appellee

No. CV-23-46

Court of Appeals of Arkansas, DIVISION I.

Opinion Delivered October 25, 2023

APPEAL FROM THE OUACHITA COUNTY CIRCUIT COURT [NO. 52DR-18-208], HONORABLE DAVID F. GUTHRIE, JUDGE

Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson; and Dobson Law Firm, P.A., Sheridan, by: R. Margaret Dobson, for appellant.

Taylor & Taylor Law Firm, P.A., by: Tory H. Lewis, Andrew M. Taylor, and Tasha C. Taylor, for appellee.

WENDY SCHOLTENS WOOD, Judge

₁Brad House appeals an amended divorce decree entered by the Ouachita County Circuit Court on October 24, 2022, awarding primary physical custody of the parties’ daughter, MC1, to Karmen House and standard visitation to Brad. The decree includes findings of fact and conclusions of law on the custody issue, which were entered by the circuit court on remand following a previous appeal to this court. Brad brings two points on appeal: (1) the chief justice lacked jurisdiction and authority under section 13 of amendment 80 to the Arkansas Constitution (Amendment 80) to assign a temporary special judge, and (2) the circuit court’s award of custody and visitation is clearly erroneous. We affirm.

The parties in this case married in 2015, and MC1 was born that same year. In August 2018, the couple separated, and Karmen filed for divorce. On January 8, 2019, pending a ₂final divorce hearing originally scheduled the next week on January 15, the parties agreed to a temporary joint-custody order pursuant to which MC1 would spend Monday and Tuesday with Karmen, Wednesday and Thursday with Brad, and every other weekend with the alternate parent. The final hearing did not take place on January 15 but was postponed until December. At the hearing, Karmen requested primary custody, and Brad requested joint custody with equal time. On January 24, 2020, the court issued a letter opinion awarding "joint custody" to the parties but awarding "primary and unequal possession" to Karmen and "reasonable and seasonable visitation" consistent with "the guidelines" to Brad. The court entered a divorce decree on May 21, 2020, consistent with its letter opinion.

After the letter opinion was issued but before the divorce decree was entered, Brad twice requested that the court issue findings of fact and conclusions of law pursuant to Rule 52 of the Arkansas Rules of Civil Procedure, which the court de- clined to do. In an appeal from the court’s May 2020 order, we reversed and remanded, directing the circuit court to enter the requested findings and conclusions. House v. House, 2021 Ark. App. 380, 2021 WL 4582116. Between the circuit court’s May 2020 order and this court’s October 2021 opinion, Judge David Guthrie, the circuit judge who had presided over the case, retired, and Judge Spencer Singleton replaced him.

On remand, Brad moved to enforce the circuit court’s January 2019 agreed temporary joint-custody order. He also requested a new trial of the custody issues, arguing that the new judge could not make findings about witnesses and testimony he "had no opportunity to observe and hear." Pursuant to Amendment 80 and Administrative Order No. 16, Judge ₃Singleton asked Chief Justice Dan Kemp of the Arkansas Supreme Court to assign Judge Guthrie to the case for the limited purpose of entering findings of fact and conclusions of law. On February 17, 2022, the chief justice entered an order finding "a need for a special judge to be assigned and in the interest of judicial economy" and assigning Judge Guthrie to make findings of fact and conclusions of law in the case. On October 24, Judge Guthrie entered an order amending the divorce decree, attaching the court’s findings of fact and conclusions of law specifically explaining its May 2020 decision, and ordering all other provisions of the May 2020 decree to remain in full force and effect. Brad filed this appeal.

For his first point on appeal, Brad argues that the chief justice lacked jurisdiction and authority under Amendment 80 and Administrative Order No. 16 to assign Judge Guthrie to this case. Section 13 to Amendment 80 provides in pertinent part as follows:

(C) If a Circuit or District Judge is disqualified or temporarily unable to serve, or if the Chief Justice shall determine there is other need for a Special Judge to be temporarily appointed, a Special Judge may be assigned by the Chief Justice or elected by the bar of that Court, under rules prescribed by the Supreme Court, to serve during the period of temporary disqualification, absence or need.

Ark. Const. amend. 80, § 13(C) (emphasis added).

Administrative Order No. 16 prescribes the rules for assigning temporary special judges, defining persons authorized to serve (specifically listing retired circuit court judges), and providing a process for the assignment of judges in the event of "disqualification, temporary inability to serve, or other need as determined by the Chief Justice." Ark. Sup. Ct. Admin. Order No. 16(I) (2022). The process includes establishing a proper basis for assignment—one of which is "[o]ther need as determined by the Chief Justice"—and ₄considering certain factors in selecting the judge to be assigned, which includes the type and complexity of the case; the amount of time needed for the assignment; the geographic location of the case and assigned judge; and the consent of the judge selected. Ark. Sup. Ct. Admin. Order No. 16(II), (V).

[1–3] We review a circuit court’s interpretation of a constitutional provision de novo. Cherokee Nation Businesses, LLC v. Gulfside Casino P’ship, 2021 Ark. 183, at 8, 632 S.W.3d 284, 289. Language of a constitutional provision that is plain and unambiguous must be given its obvious and common meaning. Id., 632 S.W.3d at 289. Neither rules of construction nor rules of interpretation may be used to defeat the clear and certain meaning of a constitutional provision. Id., 632 S.W.3d at 289.

[4] Amendment 80 clearly authorizes the chief justice to assign a special judge if he or she determines "there is other need for a Special Judge to be temporarily appointed," as Chief Justice Kemp determined there was here. Ark. Const. amend. 80, § 13(C). Brad recognizes the chief justice’s authority under Amendment 80 but argues that there are no "rules prescribed by the Supreme Court" governing the assignment for "other need." In support of his argument, he cites Dawson v. Stoner-Sellers, 2019 Ark. 410, 591 S.W.3d 299, claiming that the supreme court found "a gap" in the rules for addressing "other need."

In Dawson, the supreme court specifically rejected an argument similar to Brad’s. At issue in Dawson was the administration of several family trusts. 2019 Ark. 410, at 1, 591 S.W.3d at 301. A special judge was requested and assigned "for the sake of judicial economy" because the newly elected circuit judge would not have a "civil term" in the county in 2018. ₅Chief Justice Kemp appointed the retired circuit judge who had presided over the case before his retirement to hear the case. Id. at 5, 591 S.W.3d at 303. The appellant argued that the chief justice lacked jurisdiction to assign the special judge because not all judges in the circuit had recused as required by section III of Administrative Order No. 16, which governs assignments when a circuit judge recuses. The court held that the appellant ignored the broad language of Amendment 80 and section II of Administrative Order No. 16, which provide the chief justice with the authority to assign a special judge if he determines there is "other need" for a special judge. The court determined the assignment in the case was not due to the circuit judge’s recusal: "Here, the chief justice apparently determined there was a need for a special judge for the sake of judicial economy due to the assigned circuit judge’s docket." Id. at 7, 591 S.W.3d at 304. The court specifically addressed the argument Brad makes to us: "[T]he procedures fail to address an assignment based on other need as determined by the chief justice. Nonetheless, this gap in the procedures set out in section (III) does not affect the authority of the chief justice pursuant to Amendment 80 to assign a special judge when he determines that a need exists." Id. n.5, 591 S.W.3d at 304 n.5.¹ Although Brad acknowledges this, he argues that the supreme court’s "conclusion is incorrect." We cannot overrule the supreme court’s precedent, and we reject Brad’s ₆argument. Farm Credit Midsouth, PCA v. Bollinger, 2018 Ark. App. 224, at 20, 548 S.W.3d 164, 177.² The chief justice had the authority and jurisdiction under Amendment 80 to assign Judge Guthrie to this case on the basis of his determination of "other need."

We now direct our review to Brad’s second point on appeal that the court’s ruling on custody and visitation is clearly erroneous. Specifically, he argues that the evidence was insufficient to overcome the statutory preference for joint custody, and even without the statutory preference, the evidence was insufficient to support a find- ing that it was in MC1’s best interest for Karmen to have primary custody and Brad to have visitation.

[5–9] An award of joint custody is favored in divorce cases,³ and when in the child’s best interest, custody should be awarded in such a way as to assure the frequent and continuing contact of the child with both parents. Grimsley v. Drewyor, 2019 Ark. App. 218, at 8, 575 S.W.3d 636, 641. The primary consideration in child-custody cases is the welfare and best interest of the children; all other considerations are secondary. Fox v. Fox, 2015 Ark. App. 367, 465 S.W.3d 18. We perform a de novo review of child-custody matters, but we will not ₇reverse the circuit court’s findings unless they are clearly erroneous. Hamerlinck v. Hamerlinck, 2022 Ark, App. 89, at 12, 641 S.W.3d 659, 665. 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...