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Black v. Black

Court of Appeals of Arkansas, Division II

March 4, 2015



Hilburn, Calhoon, Harper, Pruniski & Calhoun, Ltd., by: Sam Hilburn, Scott Hilburn, and Natalie Dickson, for appellant.

Wright, Berry, Moore & White, P.A., by: Gina White, Rodney P. Moore, and Travis Berry, for appellee.



Page 774


This is an appeal between divorced parents over custody of their child WWB, born in January 2008. Appellant Jessica Black and appellee Brentley (" Brent" ) Black were married in 1999 and were divorced by a decree issued by the Clark County Circuit Court in April 2014. The parties each sought primary custody of the child, although they shared approximately equal time with the child following separation in May 2013 until their divorce. After a full day's hearing in March 2014, the trial court awarded primary custody to Brent, and Jessica appeals, arguing that the trial court clearly erred in granting custody to Brent and not her, or alternatively, in not awarding joint custody. We hold that the trial court did not clearly err and affirm.

With regard to custody and visitation, the primary consideration is the welfare and best interest of the child involved; all other considerations are secondary. Baber v. Baber, 2011 Ark. 40, 378 S.W.3d 699; Hicks v. Cook, 103 Ark.App. 207, 288 S.W.3d 244 (2008). On appeal, we perform a de novo review, but we will not reverse unless the findings are clearly erroneous. Taylor v. Taylor, 353 Ark. 69, 110 S.W.3d 731 (2003); Ross v. Ross, 2010 Ark.App. 497. This necessarily turns in large part upon credibility determinations, and we give special deference to the superior position of the trial judge to evaluate the witnesses, their testimony, and the child's best interest. Sharp v. Keeler, 99 Ark.App. 42, 256 S.W.3d 528 (2007). There are no cases in which the superior position, ability, and opportunity of the trial judge to observe the parties carry as great a weight as those involving children. Judkins v. Duvall, 97 Ark.App. 260, 248 S.W.3d 492 (2007). We do not reverse unless there is clear error, meaning that after conducting de novo review we are left with a definite and firm conviction that a mistake was made. Hollinger v. Hollinger, 65 Ark.App. 110, 986 S.W.2d 105 (1999).

Factual Background and Testimony

The parties lived in Arkadelphia, where each went to college at Ouachita Baptist University and each attained accounting degrees. Each party had a full-time job, although Jessica was a stay-at-home mother for a period of time after WWB's birth. By the date of the divorce hearing in March 2014, a substantial portion of the sizable marital assets and debts were divided by agreement of the parties. The remainder of the marital assets was subject to litigation and equitably divided. The division of assets and debts and the award of alimony are not at issue on appeal.

Page 775

The parties agreed that Brent would remain in the marital home, where the parties lived almost all of WWB's life. This was where WWB had his room, toys, and pets. During the parties' separation, Jessica had moved to the parties' houseboat where she resided until the divorce.

The trial court heard testimony from Jessica and Brent along with Jessica's best friend Rebecca Davidson, Brent's mother Elaine Black, and Michael Connely, a friend of the parties. At the conclusion of the evidence, the trial judge recessed court but returned the same day to issue his ruling from the bench. He noted that because these were both loving, caring parents, the custody decision was harder.

Jessica testified that she was a stay-at-home mother to WWB for about the first three years of his life, and then she returned to part-time employment. She returned to full-time employment when WWB was age five. WWB went to daycare sporadically when Jessica worked part time, and he attended daycare full time when she went to full-time work. WWB started kindergarten in August 2013.

Jessica testified she took their son to swimming lessons, karate lessons, birthday parties, play dates, church activities, and did the typical care taking for WWB when she was home with him. Jessica testified that she took WWB to church and said that she actively worked toward WWB having a sound religious upbringing. Jessica stated that her extended family lived in Iowa and that her full-time job provided five vacation days annually, which she ...

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