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ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-15-92
OPINION DELIVERED SEPTEMBER 23, 2015
ARNESHIA L. RYAN
APPELLANT APPEAL FROM THE ST. FRANCIS
COUNTY CIRCUIT COURT
[NO. DR-2012-83-5]
V.
HONORABLE KATHLEEN BELL,
JUDGE
BRITNEY Q. WHITE
APPELLEE AFFIRMED
ROBERT J. GLADWIN, Chief Judge
Appellant Arneshia Ryan appeals the July 28, 2014 order entered by the St. Francis
County Circuit Court that awarded joint custody of the parties’ minor child to appellant and
appellee, Britney White, the father of the child. Appellant argues that the circuit court erred
in giving a preference to joint custody in this case and in finding that appellee met his burden
required by Arkansas Code Annotated section 9-10-113 (Repl. 2009) for an award of
custody. We affirm.
The parties are parents to a son, J.W., born out of wedlock on June 26, 2012. The
parties dated for nine years and lived together in appellee’s home for the last four years of
their relationship. During that time, appellant became pregnant with J.W. When she was five
months pregnant, she moved out of appellee’s house based on suspicions that appellee had
been unfaithful. Appellant then cancelled her phone service and moved again without
informing appellee of her new contact information. Appellee repeatedly, but unsuccessfully,
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sought to contact appellant after she had moved out. When appellee realized that appellant
was not going to allow him to be involved for the remainder of the pregnancy, he filed a
complaint to establish paternity, to request that he be allowed to be present at his son’s birth,
and to establish joint custody of the child upon his birth. Appellant responded to appellee’s
complaint, admitting paternity and requesting full custody of the baby. Because appellant did
not inform appellee about the impending birth, appellee, of his own initiative, made multiple
trips to the hospital around the due date to try to see his newborn son. On his fifth trip,
someone at the hospital told appellee that he had arrived two days too late.
Appellant refused to allow appellee to see J.W. until September 3, 2012, ten weeks
after the child had been born. Appellee and appellant then arranged occasional visits among
appellant, appellee, and J.W. during the fall of 2012. Those visits continued until February
2013, when appellant received notice that a “temporary hearing” on appellee’s complaint had
been scheduled for May 2013. From February until May 2013, appellant did not permit
appellee to see J.W. On June 11, 2013, the circuit court filed an order, signed by counsel for
both parties which, in accordance with the May 21, 2013 hearing, established appellee’s
paternity and granted appellant temporary physical custody “subject to the right of reasonable
visitation.” Appellee was given a phased-in visitation schedule progressing to standard
(Schedule A) visitation.
Appellant deprived appellee of his first scheduled visitation in June 2013 and on two
subsequent occasions in December 2013, including Christmas. Thereafter, appellee filed a
petition for contempt. At the January 16, 2014 hearing scheduled for a final custody
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determination, Judge Hudson recused but noted that her prior orders remained in effect and
were to be followed. The very next day, however, appellant denied appellee’s scheduled
visitation and refused to allow contact between J.W. and him. Appellee filed a second
verified petition for contempt on January 23, 2014, noting that appellant had denied him
scheduled weekend visitations in January 2014 without explanation. An order to appear and
show cause was issued on January 29, 2014, setting February 26, 2014, as the hearing date
on appellee’s petitions for contempt. On November 20, 2014, a nunc pro tunc order
reverting to the February 26, 2014 hearing was entered, finding appellant in “willful
contempt” of the circuit court’s visitation orders, changing the child’s last name to appellee’s,
and reserving the issue of sanctions until the final custody hearing on March 10, 2014.
At the March 10, 2014 hearing, appellant acknowledged her history of unilaterally
cutting off appellee’s visitation. She testified that she has no concerns with the physical
attributes of appellee’s home, other than a stray shovel that might be lying in the back yard,
and she agreed that appellee is a good father who is very concerned about J.W. and has been
involved to the extent that he has been allowed. Appellant testified that she knew of no
reason why appellee could not adequately care for J.W. in his home. She further
acknowledged that a father’s relationship with a child is as important as the mother’s and that
a father should be permitted to spend as much time with his child as possible. Appellant’s
only disagreement with appellee’s request for joint custody was that she felt it would confuse
J.W., being almost two years old, but she did express a desire to “co-parent” with appellee.
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Appellee expressed multiple concerns with appellant having primary custody of J.W.,
including her fluctuating work schedule, her mother keeping a loaded gun in the apartment
and having fired it with J.W. present, her cutting appellee off from contact with J.W. when
she became angry, and her fictitious report of child abuse made when she was angry because
appellee had J.W.’s hair cut. Appellee acknowledged his continued willingness to work with
appellant to care for J.W., and he stated that between February 20, 2014, and the March 10,
2014 hearing, the parties had been able to work together. Appellee requested a seven-day
schedule where both parents would have equal time with J.W. to eliminate appellant’s
bargaining ability or “holding him hostage over my head and blackmailing me with my son.”
After hearing the testimony of appellee, appellant, appellee’s mother, the DHS
investigator, and appellant’s character witness, the circuit court noted that appellee had
sustained his statutory burden to be awarded custody and that both parties are “suitable
people to have custody of this child.” The circuit court acknowledged that as of that date,
both parties had presented testimony regarding their willingness to work together and
confirmed that they had successfully done so in the weeks leading to the hearing.
In its order entered July 25, 2014, the circuit court found that both parties were
capable of providing nurture and support to J.W. and that both were appropriate for
placement. The circuit court found that appellee had established paternity and sustained his
burden of providing financial and emotional support to J.W. in order to sustain a custody
request. The circuit court noted that it was cognizant of the fact that the Arkansas Legislature
has directed that joint custody is favored, as stated in Arkansas Code Annotated section
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9-13-101(a)(1)(A)(iii) (Supp. 2013), and awarded joint custody with a seven-day rotation.
Additionally, the circuit court awarded appellee $500 as a sanction against appellant for
contempt. Appellant filed her timely notice of appeal on August 8, 2014.
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. 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. Id.; see also Fox v. Fox, 2015 Ark. App. 367, __ S.W.3d
__.
Also, this court reviews issues of statutory interpretation de novo. Steele v. Lyon, 2015
Ark. App. 251, 460 S.W.3d 827. In reviewing issues of statutory interpretation, a court will
determine the meaning and effect of a statute first by construing the statute just as it reads,
giving the words their ordinary and usually accepted meaning in common language. Id.
When the statute’s language is clear and unambiguous, there is no need to look further and
apply the rules of statutory construction. Id.
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Several statutes are relevant to the current appeal. Specifically, Arkansas Code
Annotated section 9-10-113 sets forth the law regarding custody of a child born out of
wedlock:
(a) When a child is born to an unmarried woman, legal custody of that child shall be
in the woman giving birth to the child until the child reaches the age of eighteen (18)
years unless a court of competent jurisdiction enters an order placing the child in the
custody of another party.
(b) A biological father, provided he has established paternity in a court of competent
jurisdiction, may petition the circuit court in the county where the child resides for
custody of the child.
(c) The court may award custody to the biological father upon a showing that:
(1) He is a fit parent to raise the child;
(2) He has assumed his responsibilities toward the child by providing care, supervision,
protection, and financial support for the child; and
(3) It is in the best interest of the child to award custody to the biological father.
Additionally, Arkansas Code Annotated section 9-10-109 (Repl. 2009) addresses the
establishment of paternity:
(a)(1)(A) Subsequent to the execution of an acknowledgment of paternity by the
father and mother of a child pursuant to § 20-18-408 or § 20-18-409, or a similar
acknowledgment executed during the child’s minority, or subsequent to a finding by
the court that the putative father in a paternity action is the father of the child, the
court shall follow the same guidelines, procedures, and requirements as set forth in the
laws of this state applicable to child support orders and judgments entered by the
circuit court as if it were a case involving a child born of a marriage in awarding
custody, visitation, setting amounts of support, costs, and attorney’s fees, and directing
payments through the clerk of the court, or through the Arkansas child support
clearinghouse if the case was brought pursuant to Title IV-D of the Social Security
Act.
Finally, Arkansas Code Annotated section 9-13-101 (Supp. 2013) provides, in relevant part,
(a)(1)(A)(i) In an action for divorce, the award of custody of a child of the marriage
shall be made without regard to the sex of a parent but solely in accordance with the
welfare and best interest of the child.
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(ii) In determining the best interest of the child, the court may consider the
preferences of the child if the child is of a sufficient age and mental capacity to reason,
regardless of chronological age.
(iii) In an action for divorce, an award of joint custody is favored in Arkansas.
....
(5) As used in this section, “joint custody” means the approximate and reasonable
equal division of time with the child by both parents individually as agreed to by the
parents or as ordered by the court.
....
(b)(1)(A)(i) When in the best interest of a child, custody shall be awarded in such a way so as
to assure the frequent and continuing contact of the child with both parents consistent with
subdivision (a)(1)(A) of this section.
(ii) To this effect, the circuit court may consider awarding joint custody of a child to the parents
in making an order for custody.
(Emphasis added.)
I. Did the Circuit Court Err in Giving Preference to Joint Custody?
Act 1156 of 2013 enacted Senate Bill 901 of the Arkansas General Assembly, which
is codified at Arkansas Code Annotated sections 9-13-101 to -110. The specific statutory
language of this change now reads, “In an action for divorce, an award of joint custody is
favored in Arkansas.” Ark. Code Ann. § 9-13-101(a)(1)(A)(iii) (emphasis added). In this case,
the child in question was born out of wedlock, and appellant argues that this statutory section
should not have applied because it clearly states that it is applicable to divorce actions. She
maintains that the circumstances of children born to a marriage are markedly different
because they ordinarily have lived in the same household with both parents for a period of
time. Both parents have legal custody of children born during a marriage until a court order
severs this relationship.
In this case, J.W. has never lived with both parents, and paternity was not established
until he was almost a year old, which was also the first time that frequent visits began with
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appellee. Before then, J.W. had lived exclusively with appellant, and she had legal custody
of him pursuant to section 9-10-113(a).
We hold that, although the circuit court did not err in acknowledging the “favored”
status of joint custody under section 9-13-101, it does not directly apply to these facts. We
acknowledge that the “favored” status of joint custody specifically applies in divorce cases
rather than custody cases involving children born to unmarried parents but note that section
9-10-109 expressly provides that, once paternity has been established, the court is ordered
to follow “the same guidelines, procedures, and requirements ... as if it were a case involving a child
born of a marriage in awarding custody [and] visitation . . . .” Ark. Code Ann. § 9-10-109
(emphasis added). Our supreme court noted in Norwood v. Robinson, 315 Ark. 255, 866
S.W.2d 398 (1993), that “[f]athers of illegitimate children should certainly bear the same
burden as fathers of legitimate children born of marriage.” Norwood, 315 Ark. at 259, 866
S.W.2d at 401. Once paternity is established, the presumption of awarding custody to the
mother is erased, and the biological father is afforded the same right to establish a parental and
custodial relationship with the child to which a married parent is entitled. Ark. Code Ann.
§ 9-10-109; Norwood, supra. Accordingly, the circuit court did not err in recognizing that
joint custody is “favored” under section 9-13-101. Section 9-13-101, goes on to recognize
that,
(b)(1)(A)(i) When in the best interest of a child, custody shall be awarded in such a
way so as to assure the frequent and continuing contact of the child with both parents
consistent with subdivision (a)(1)(A) of this section.
(ii) To this effect, the circuit court may consider awarding joint custody of a child to
the parents in making an order for custody.
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Ark. Code Ann. § 9-13-101(b)(1)(A)(i)–(ii).
II. Did Appellee Meet His Burden Under § 9-10-113 for an Award of Custody?
Section 9-10-113 gives a father of a child born out of wedlock the right to seek
custody after establishing paternity. Custody may be granted to him if the court finds that (1)
he is a fit parent to raise the child; (2) he has assumed the responsibilities toward the child by
providing care, supervision, protection, and financial support for the child; and (3) it is in the
best interest of the child to award custody to the biological father.
Initially, appellant notes that in Norwood, supra, the circuit court deemed the initial
determination of paternity as the last custody order and required a material change in
circumstances in addition to the three conditions previously listed. The analysis was that
custody vested with the mother at birth and was implicitly affirmed in the paternity order
granting the father visitation. Appellant reiterates that whenever a party is requesting a change
of custody, it is then that party’s burden to show that there has been a change of
circumstances since the original order establishing custody or that there were facts not
presented at the initial hearing that would bear on the best interest of the child. See Metz v.
Steele, 2012 Ark. App. 373, 418 S.W.3d 411. In this case, a full hearing was conducted and
two orders were entered on June 11, 2013.1 Appellant claims that these two orders, regardless
of whether they were temporary, established paternity and awarded visitation to the father.
1
Two orders containing slightly different language, but addressing the same issues, were
filed that date. One of those orders does not include the word “temporary” in the third
paragraph; however, it is undisputed that the order scheduling the May 2013 hearing, which
was personally served on appellant on May 6, 2013, expressly provided that a “temporary
hearing” was scheduled.
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She cites Hodge v. Hodge, 97 Ark. App. 217, 245 S.W.3d 695 (2006), in which this court held
that it was error if a material-change-of- circumstances standard was not used after an initial
award in favor of the mother.
Other than the requirements set out in section 9-10-113, there are no additional
requirements that a biological father must establish upon an initial custody determination. See
Donato, supra; Harmon v. Wells, 98 Ark. App. 355, 255 S.W.3d 501 (2007); Sheppard v. Speir,
85 Ark. App. 481, 157 S.W.3d 583 (2004). We hold that appellee was not required to
establish a material change in circumstances in this case. Appellee filed a complaint to
establish paternity and to obtain joint custody on April 4, 2012, more than two months
before J.W. was born. A temporary hearing was held on May 21, 2013, and appellee’s
paternity was established in the June 11, 2013 order. That order also established temporary
custody in appellant and granted appellee a phased-in visitation schedule working toward
standard Schedule A visitation.
The June 11, 2013 order set temporary custody rather than vesting final, primary
custody in appellant. It was temporary in nature, reserving the determination of custody for
a future date. Judge Hudson, the presiding judge at the time the orders were entered, spoke
with Judge Bell, the current judge, on the record at the March 10, 2014 hearing and stated,
“We never had a hearing on permanent custody.” The only June 11, 2013 order contained
in the record (which Judge Bell declared was controlling) provides that “temporary care and
custody” was granted. Upon reviewing both orders, Judge Bell noted,
Both of them in paragraph three and later on in the order state that the order is the
result of a temporary hearing. So it can only be temporary custody when you were
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at a temporary hearing. And there does not seem to be anything on the face of this
order [that] changes it from a temporary hearing to a final.
The law does not prohibit a circuit court from entering a temporary order of visitation
in favor of the father at the same time that he is found to be the father and reserving the issue
of custody for a later time. Harmon, supra. The evidence established, and the circuit court
correctly determined, that the June 11 order was temporary in nature, with the final issue of
custody being reserved for a later date, as evidenced by the September 20, 2013 order setting
a final hearing to determine the issues of “Custody, Visitation and Child Support.”
Because appellee filed his petition for custody before paternity was established and
because the subsequent June 11, 2013 order was temporary in nature, appellee only had to
meet the three requirements set forth in section 9-10-113 in order to be awarded custody
of J.W. in March 2014. No proof of a material change of circumstances was necessary. See
Donato, supra; Harmon, supra; and Sheppard, supra.
Specifically, in regard to appellee’s failure to meet his burden of proof, appellant
argues that appellee did not demonstrate that he had assumed his responsibilities toward J.W.
by providing care, supervision, protection, and support for the child as required by section
9-10-113(2). Additionally, appellant contends that appellee’s testimony concerning his
financial responsibility was lacking. Appellant states, however, that the biggest deficiency in
the proof was that he presented no evidence to the circuit court that demonstrated that it was
in the best interest of J.W. for him to be awarded custody as required by section 9-10-113(3).
The majority of appellee’s argument for why he should be awarded custody was that
appellant had denied his mother a visit in June 2013 and other visits in December 2013 while
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there was an ongoing investigation. He also expressed concern about appellant’s mental
stability and that of her mother, as well as appellant’s prior attempts to find work and move
out of state with J.W.
Based upon our review of the circuit court’s orders and witness testimony, including
that of appellant, it is clear that there was universal agreement that it would be in J.W.’s best
interest for appellee to have as much time with J.W. as possible. Appellant’s only
disagreement with the proposal of joint custody and seven-day per-week visits was that she
felt it would confuse J.W. at this age, but she presented no evidence to substantiate her
concern that permitting J.W. to share equal time with his parents would be confusing to him.
Likewise, there was no evidence or testimony presented that J.W. was too young for his
father to be awarded custody. The order setting joint custody was entered two weeks before
J.W.’s second birthday, and we note that this court has affirmed circuit court decisions to
place young children with their fathers. See Sheppard, supra (ten-month-old child); Harmon,
supra (three-year-old child).
Despite the universal agreement that appellee should be permitted the opportunity to
spend as much time with J.W. as possible, the testimony and evidence established that when
appellant had temporary, primary physical custody of J.W., she obstructed appellee’s ability
to spend time with J.W. by denying court-ordered visitation and blocking him from her
phone. Due to her actions, appellee filed two verified petitions for contempt, which resulted
in a November 20, 2014 order, filed nunc pro tunc to the February 26, 2014 hearing date,
finding appellant in “willful contempt” of the circuit court’s visitation orders.
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We hold that the evidence and testimony at the hearing established (1) that appellant
initially exhibited a lack of regard for appellee’s opportunity and time to be with J.W. (2)
that appellee met his statutory burden for an award of custody; (3) that appellee’s request for
joint custody provided both parties with meaningful interaction with J.W. which all of the
witnesses testified was important and necessary; and (4) that an award of joint custody was
in J.W.’s best interest. It is undisputed that appellant testified at the final hearing that she was
willing to follow the circuit court’s orders in the future and desired to coparent with
appellee. Appellee also expressed a desire to co-parent with appellant. Based on the circuit
court’s opinion that both parties are “appropriate for the placement of the minor child in
their care and custody,” and its determination to level the playing field by awarding joint
custody, we affirm the circuit court’s award of joint custody.
Affirmed.
WHITEAKER and HOOFMAN , JJ., agree.
Jeanette Whatley, for appellant.
Appellate Solutions, PLLC d/b/a/ Riordan Law Firm, by: Deborah Truby Riordan, for
appellee.
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