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Thurmon v. Thurmon

Court of Appeals of Arkansas, Division IV

October 26, 2016

DONALD ERNEST THURMON APPELLANT
v.
BRITTANY THURMON APPELLEE

         APPEAL FROM THE UNION COUNTY CIRCUIT COURT [NO. 70DR-14-197] HONORABLE DAVID F. GUTHRIE, JUDGE

         AFFIRMED IN PART; REVERSED AND REMANDED IN PART

          Depper Law Firm, Inc., by: Robert L. Depper, Jr., for appellant.

          Ronald L. Griggs, for appellee.

          BRANDON J. HARRISON, JUDGE

         Donald Ernest Thurmon appeals a July 2015 divorce decree that granted Brittany Thurmon a divorce, custody of their child, and divided the couple's property. He also appeals from the deemed denial of his posttrial motion to alter or amend the decree. We affirm the circuit court's custody decision and reverse and remand its property division.

         I.

         Thurmon first argues that the circuit court erred in awarding custody of the parties' two-year-old child, B.T., to Brittany, because it was not in their son's best interest to do so. Arkansas Code Annotated section 9-13-101(a)(1)(A)(i) (Repl. 2015) provides that, during a divorce, the award of custody of a child of the marriage must be made solely on the welfare and best interest of the child. In determining the best interest of the child, the court "may consider the preferences of the child if he or she is of a sufficient age and mental capacity to reason, regardless of chronological age." Ark. Code Ann. § 9-13-101(a)(1)(A)(ii). In an action for divorce, an award of joint custody is favored in Arkansas. Ark. Code Ann. § 9-13-101(a)(1)(A)(iii).

         In this case each party made some good points on the custody issue, but the circuit court's custody determination was not clearly erroneous. Fox v. Fox, 2015 Ark.App. 367, 465 S.W.3d 18 (standard of review). There is some evidence that Donald is available to care for B.T. seven days in a fourteen-day period; there was also evidence that, when he works graveyard shifts, he is not able to care for B.T. The record shows, if so credited, that Brittany was the primary caregiver to B.T. during the marriage and that her schedule allows her to drop off and pick up B.T. each day from daycare. We have held that a parent being the child's primary caregiver is a relevant factor when determining which parent should be granted custody. Fox, 2015 Ark.App. at 7, 465 S.W.3d at 23.

         The circuit court could also weigh and credit testimony that Donald had been abusive at times towards Brittany's daughter from a previous relationship and that he had hit Brittany on occasion. See Davis v. Sheriff, 2009 Ark.App. 347, at 8, 308 S.W.3d 169, 173 (a court may consider an individual's purposeful injury to a child whose welfare is not before the court when determining the best interests of children). It was undisputed that Donald did not have a close relationship with his adult son from a different marriage. There was disputed testimony about whether Donald had threatened to kill himself with a gun in some woods near the house in March 2014. The police were called, though no one was arrested and the gun was returned to Donald. The circuit court could credit this and other testimony about Donald's mental instability and decide whether and how it might affect his parenting. See Nicholson v. Harrison, 2013 Ark.App. 44, 425 S.W.3d 851.

         There is more testimony on both sides but there is no need to go into more detail. It suffices to state that, having reviewed the record and the parties' arguments, we hold that the circuit court's decision that Brittany should have custody of B.T. was not clearly erroneous, given the record as a whole. We therefore affirm the court's decision.

         II.

         Donald's argument that dividing the "marital" home was an error because it was his premarital property is well taken. The circuit court in this case ruled that

[Brittany] shall have possession of the marital home and parties shall divide evenly the mortgage payments thereon. When the child reaches the age of majority, the house shall be sold, the debt paid and the equity divided. [Brittany] shall pay the ...

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