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Folkers v. Buchy

Court of Appeals of Arkansas, Divisions I, III, IV

January 23, 2019



          Taylor & Taylor Law Firm, P.A., by: Andrew M. Taylor and Tasha C. Taylor, for appellant.

          Phillips & Veach, P.A., by: Robert M. Veach, for appellee.

          N. MARK KLAPPENBACH, Judge

         This appeal concerns visitation and attorney's fees. Appellant Jason Folkers and appellee Brandi Boley Buchy were never married but have a son who was born in 2010. Brandi had custody of their son, given that she is the mother of this child born out of wedlock. Litigation ensued between the parties in September 2016, and ultimately the circuit court denied Jason's petition for joint custody, granted Jason visitation, finalized Jason's unpaid and prospective child-support obligation, and awarded Brandi $8, 965.21 in attorney's fees. Jason appeals, arguing that the circuit court abused its discretion in awarding him "only a limited visitation schedule" and in awarding Brandi attorney's fees. We affirm.

         Before examining the chronology of events and the evidence presented to the circuit court, we set out some legal principles that apply to child-visitation matters and the standard of appellate review. The primary consideration in child-custody and visitation cases is the welfare and best interest of the child involved. All other considerations are secondary. Donato v. Walker, 2010 Ark.App. 566, 377 S.W.3d 437. The primary consideration regarding visitation is the best interest of the child. Baber v. Baber, 2011 Ark. 40, 378 S.W.3d 699. Important factors the court considers in determining reasonable visitation are the wishes of the child, the capacity of the party desiring visitation to supervise and care for the child, problems of transportation and prior conduct in abusing visitation, the work schedule or stability of the parties, and the relationship with siblings and other relatives. Id. Fixing visitation rights is a matter that lies within the sound discretion of the circuit court. Id.

         On appeal, this court reviews the evidence de novo, but we will not reverse unless the findings are clearly erroneous. Black v. Black, 2015 Ark.App. 153, 456 S.W.3d 773. This necessarily turns, in large part, upon credibility determinations, and we give special deference to the superior position of the circuit court to evaluate the witnesses, their testimony, and the child's best interest. Id. There are no cases in which the superior position, ability, and opportunity of the circuit court to observe the parties carry as great a weight as those involving children. Id. We do not reverse unless there is clear error, meaning that after conducting a de novo review we are left with a definite and firm conviction that a mistake was made. Ryan v. White, 2015 Ark.App. 494, 471 S.W.3d 243.

         We now turn to the facts of this case. When their son was born in 2010, both Brandi and Jason signed a notarized acknowledgement that Jason was the child's father. Jason and Brandi lived as a family with their son and Brandi's older daughter until they broke up after an incident on New Year's Eve 2015. Jason moved out in January 2016. Thereafter, the parties worked together so that Jason could have visitation with their then five-year-old son, but this arrangement broke down in late August 2016.

         Shortly thereafter, on September 6, 2016, Jason filed a petition in circuit court in which he (1) asked to formally establish his paternity, (2) stated that he had "exercised continuing and regular visitation, including overnight visitation," with his son since his and Brandi's separation in January 2016, (3) requested joint custody, and (4) requested the return of several unidentified items of personal property and that he be given possession and title to a vehicle that was in Brandi's name. Later in September, Brandi filed responses in which she (1) acknowledged that Jason is their son's father, (2) acknowledged that there had been some visitation, (3) requested child support to be established, (4) asserted that joint custody would not be in the child's best interest, (5) denied that she had any of Jason's personal items, (6) stated that Jason was driving a vehicle titled in her name but continually made untimely payments affecting her credit, and (7) stated that Jason should be ordered to make timely payments or refinance the vehicle in his name.

         After a temporary hearing in November 2016, the circuit court entered a temporary order establishing Jason's paternity and stating that both parties waived DNA testing, setting Jason's child-support obligation, and establishing that Jason would have visitation every other weekend (Friday to Sunday) and specific Thanksgiving and Christmas visitation periods.

         At the final hearing, Jason's attorney stated to the circuit court that the issue to litigate was his request for joint custody, noting that there had been no problem with visitation since paternity was acknowledged. Jason believed that he had been an involved parent, had been financially responsible toward his son, and had demonstrated that it was in their son's best interest to have joint custody. In the alternative, he wanted an expanded version of standard visitation. Jason withdrew his requests concerning the vehicle and personal property in light of the circuit court's statement that this was not a divorce proceeding and that those issues should be in a separate cause of action.

         Brandi's attorney stated to the circuit court that Brandi had major concerns about Jason's diagnosis of intermittent explosive disorder, which she had experienced with Jason's fits of rage and violence toward her and others. After one incident in 2013, Jason had been charged with third-degree battery because he yanked Brandi by the hair, repeatedly threw her into a chair, choked her and broke her finger, and threw a chair out the window. Jason had called her foul and profane names in front of their son. Although Jason had seen a therapist in 2013, he had not seen any therapist since 2014 and had expressed ongoing hatred for Brandi. At the outset of the hearing, Brandi asked for retroactive child support dating back to their separation in January 2016.

         The first witness was Jason's therapist, who had diagnosed Jason in 2013 with intermittent explosive disorder because of his periodic episodes of anger disproportionate to the situation. The therapist discharged Jason in 2014 because the therapist believed that Jason had met the treatment goals. When asked whether Jason had told him about an episode in late 2013 in which he had pinned Brandi against the trailer and cursed her out in front of the children, the therapist said no and that this "would cause me some concern." The therapist's records noted that Jason had these rage episodes "at least once a month," had these rages prior to his relationship with Brandi, and had a family "history of rage issues." The therapist stated that Brandi was the main trigger for Jason's episodes but that Jason had other stressors such as finances and chronic back pain.

         Jason testified that he lived alone, that he was self-employed and owned a couple of saw mills, and that he had lived with Brandi and the two children as a family until January 2016. He acknowledged that he and Brandi both drank and cursed in front of the children, although he accused Brandi of being a very heavy drinker. He admitted that he had broken two windows, damaged a couple of doors by slamming and kicking them, and punched a hole in the wall out of anger. Jason agreed that after he had been arrested for the fight during which Brandi was injured, he had gone to anger-management therapy. He downplayed the severity of the fight, however, and said that the charges had been dismissed. Jason recounted the fight on New Year's Eve 2015, but his version was that he was the victim of Brandi's family not appreciating all he had done, attacking him, and screaming at him. Jason admitted that he had probably been rude to Brandi in text messages but said that dealing with Brandi was stressful.

         Jason said he had exercised as much visitation as he could between January and August 21, 2016, when Brandi stopped his visitation because she was mad that he had started dating a friend of hers. Jason admitted that he had told Brandi that their son "should be afraid of me," but he said that this only meant that he would reprimand their son when he got in trouble. Jason had not been to any parent-teacher conferences; he did not know the names of their son's doctor, dentist, or basketball coach.

         Their son's first-grade teacher testified that she had not seen Jason at any school-related functions but that Brandi had been an active parent. She said that had Jason made an attempt to contact her to find out what was going on with his son, she would have been open to it. Her contact information was on the school's website.

         Brandi testified in line with her attorney's opening statements. She recounted her involvement with their son's school and daily life. Brandi explained that Jason's rages were extreme and took place in front of the children, who were tearful and shaken up by his outbursts. Brandi testified that Jason continued to be uncooperative and mean after they separated. She was afraid for their son to be with Jason for more than a couple days at a time because with his anger problem, "you never know when he could blow up." She admitted that she had been ...

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