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Wilhelm v. Wilhelm

Court of Appeals of Arkansas, Division IV

January 24, 2018



          Cullen & Co., PLLC, by: Tim Cullen, for appellant.

          Gunn Kieklak Dennis LLP, by: Jennifer Lloyd, for appellee.

          WAYMONDM.BROWN, Judge

         Appellant appeals from the circuit court's December 2, 2016 decree of divorce. On appeal, she argues that (1) the circuit court's findings do not support awarding primary custody to appellee; (2) a complete review of the evidence and the record on de novo review favors awarding primary custody to appellant; (3) the circuit court erred by refusing to consider joint custody; (4) if the custody award is reversed, the award of child support should be reopened; and (5) if the custody award is reversed, the award of attorney's fees should be vacated. We affirm.[1]

          The parties were married on January 10, 2004. Two children-K.W. and L.W.-were born of the marriage. Appellant filed her complaint for divorce on April 28, 2016, noting that the parties had ceased living together as husband and wife on or about February 5, 2016, and alleging general indignities as the supporting ground. She sought temporary and permanent care, custody and control of the parties' children, stating herself to be the fit and proper person between the parties, and temporary and permanent child support.[2]Appellee filed his answer on May 11, 2016, in which he denied the above-referenced assertions and raised affirmative defenses. On May 12, 2016, appellee filed a counterclaim for divorce from appellant, asserting that appellant abandoned the marital home on February 7, 2016, and adultery as the ground in support thereof. He also asserted certain affirmative defenses. He sought custody of and child support for the parties' two children in addition to other items. Appellee answered denying the same assertions on May 27, 2016, and asserting certain affirmative defenses.

         Following a hearing on August 31, 2016, the circuit court entered a temporary order in which it stated the following:

IT IS FURTHER ORDERED that the parties made an agreement on or about February 5, 2016, as it related to . . . custody and visitation of the parties' minor children and as it relates to said agreement, the parties [sic] find that there is no evidence that the minor children have been harmed under the present custody and visitation which has been agreed to by the parties and that it is in the best interest of the minor children that the parties continue to exercise the terms of visitation as agreed to by the parties and the same shall continue until October 3, 2016, which is the date scheduled for the final hearing in this matter; and
IT IS FURTHER ORDERED that pursuant to the aforementioned agreement, the Court finds that [appellant] shall be the temporary custodian of the parties' minor children subject to the rights of [appellee] to exercise visitation with the minor children from the time school is out on Wednesday until the immediate following Thursday morning at which time [appellee] shall deliver the minor children to school and if there is no school then [appellee's] visitation on each Wednesday shall begin at 3:30 p.m. and continue until 8:00 a.m. the immediate following morning. Additionally, pursuant to agreement between the parties, [appellee] shall be granted visitation with the minor children on alternating weekends beginning when school is out on Friday or, if no school, then at 3:30 p.m. and continuing until the children are returned to school on the immediate following Monday morning, or if there is no school, then until 8:00 a.m. on the immediate following Monday morning. The Court orders and directs that in the event [appellant] has work requiring her to be out of town or in any event, unable to be at her home by 6:00 p.m. then she shall immediately notify [appellee] that she will not be available, giving [appellee] the option to keep the minor children while [appellant] is away[.]

         The circuit court declined to award child support.

         A hearing on appellant's complaint for divorce and appellee's counterclaim for the same was held on October 3 and 4, 2016. Eighteen witnesses testified, including both parties. At the conclusion, the circuit court gave the parties the opportunity to file briefs on specific issues that are not pertinent to this appeal; it chose not to hear closing arguments that day. Appellee filed a posttrial brief on October 24, 2016; appellant did not file a posttrial brief. The circuit court reconvened on October 31, 2016.

         From the bench, the circuit court orally granted appellee's counterclaim for divorce and dismissed appellant's complaint for divorce. Regarding joint custody, it stated:

The Legislature has seen fit to enact a statute that says that joint custody is favored in Arkansas. And I said, the statute was enacted by the Legislature. I've never seen an appellate court case that said joint custody is favored by the courts in Arkansas. But that having been done, I do feel an obligation to consider it in every case. And I don't-I've never ordered it when the parties weren't agreeable to it. So I did ask the parties to consider whether or not they would be agreeable to joint custody, and the answer was no. . . . .
Now, if I had not thought that you were both good parents, I would not have asked you to consider or if you would consider joint custody. I think you're both fit to be parents. But I have to make a decision here. It is clear to me that the plan for the two of you for some time was [appellant] was going to concentrate on that job whatever it meant[.] . . . I note that she had-I think it was called a lead parent-has been a lead parent. And I also note that many, many times-and this is according to the neighbors that lived with the Wilhelms. . . . But the neighbors in the neighborhood testified that it was [appellee] that they saw bring the kids home. It was [appellee] they saw bringing the groceries home. It was [appellee] that was out in the yard playing with the kids until [appellant] came home. [Appellant] was seen from time to time in the yard. But the testimony of the neighbors was that [appellee] was the one who took care of the kids and that it was often that [appellant] was not off in time to take the kids home and be with them immediately after school. And that's just the way they worked it, and everybody seemed to be happy with it until the parties separated, and then the normal jockeying started of the parties started to improve their positions with regard to their chances of getting custody. Now, the testimony, and [appellee] agreed with this, that lately [appellant] had not had to travel as ...

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