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Hobart v. Alcaraz

Court of Appeals of Arkansas, Division III

May 8, 2019

ADRIAN HOBART APPELLANT
v.
GEORGE ALCARAZ APPELLEE

          APPEAL FROM THE LOGAN COUNTY CIRCUIT COURT, SOUTHERN DISTRICT [NO. 42BDR-16-48] HONORABLE DAVID H. MCCORMICK, JUDGE

          Daniel Stewart, for appellant.

          Walters, Gaston, Allison & Parker, by: Derick Allison, for appellee.

          WAYMOND M. BROWN, JUDGE.

         Appellant appeals from the circuit court's order changing custody of EA. and AA from appellant to appellee. Appellant's sole argument on appeal is that the circuit court erred in not requiring proof of a material change in circumstances before changing custody. We affirm.

         Appellee, a resident of New Mexico, filed a complaint for paternity and to establish a visitation schedule on July 7, 2016, seeking an appropriate visitation schedule and amount of support-though he had "been voluntarily paying support for the minor children for some time"-upon a determination of paternity. Following a March 2, 2017 hearing, the circuit court entered a temporary order on September 12, 2017, establishing appellee's paternity of the minor children, giving custody of the children to appellant, and awarding child support to appellant.[1]

         Appellant filed a verified petition to modify visitation on October 19, 2017, based on a "physical altercation with the oldest child, [EA], age 14"; appellee's "treatment of [EA.] during visitation [that was] disrespectful and offensive"; and because "appellee "yell[ed], use[d] profanity and call[ed] the child vulgar names." Appellant sought termination of visitation between appellee and EA.

         On November 1, 2017, appellee filed a motion to modify custody, asserting that appellant "[had] insisted on a course of behavior so as to discourage the parties' minor children from attending school regularly, recognize the value of hard work, and otherwise applying themselves at whatever task they may be doing." He went on to assert that appellant had "created an unwholesome environment wherein her laziness, inattentiveness, and lack of structure [were] negatively impacting the minor children." Accordingly, appellee asserted that appellant had "established a situation that [was] detrimental to the best interest of the minor children." He sought custody and child support.

         Following a hearing on April 5, 2018, the circuit court entered an order on May 29, 2018, in which it found that it was in the children's best interest to award custody of the children to appellee with standard visitation awarded to appellant. Additionally, appellant was ordered to pay child support. This timely appeal followed.

         Child-custody cases are reviewed de novo, but we will not reverse a circuit court's findings of fact unless they are clearly erroneous.[2] A finding of fact is clearly erroneous if, after reviewing all the evidence, the appellate court is left with a definite and firm conviction that a mistake has been made.[3] The question of whether a circuit court's findings are clearly erroneous turns largely on the credibility of the witnesses; therefore, we give special deference to the circuit court's superior position to evaluate the witnesses, their testimony, and the child's best interest.[4] There are no cases in which the circuit court's superior position, ability, and opportunity to observe the parties carry as great a weight as those involving minor children.[5] The primary consideration in child-custody cases is the welfare and best interest of the children; all other considerations are secondary.[6]

         Appellant argues that the circuit court erred in not requiring proof of a material change in circumstances before changing custody from appellant to appellee. She essentially argues that this matter was a modification of custody instead of an initial determination of custody, the former of which has the more stringent standard of requiring a material change in circumstances. This court is unable to address this argument.

         The following exchange occurred below between the circuit court, appellee's counsel, and appellant's counsel:

The Court: All right. Counsel, looking through the file, I know we let [appellee] go first, but the file, to me, reflects we had a petition for establishment of paternity, we had a temporary agreed order that said that they're [sic] was paternity and set up visitation and other-addressed a lot of issues. It's pretty much like a final order but it says temporary order and the petitions after that say file to modify the ...

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