FROM THE UNION COUNTY CIRCUIT COURT [NO. 70DR-14-197]
HONORABLE DAVID F. GUTHRIE, JUDGE
IN PART; REVERSED AND REMANDED IN PART
Law Firm, Inc., by: Robert L. Depper, Jr., for appellant.
L. Griggs, for appellee.
BRANDON J. HARRISON, JUDGE
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.
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).
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.
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.
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.
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 ...