Lead Opinion
Appellant Robin Dansby appeals the order entered by the Miller County Circuit Court judge that changed joint custody between Robin and appellee Lathaire Dansby over their younger daughter Krysten to Lathaire’s full custody. The parties married in 1984 and had Lynzi Dansby
Appellant Robin challenges the trial judge’s findings, asserting that they were clearly erroneous in two respects: (1) in concluding that there had been a material and substantial change in circumstances, and (2) in limiting Robin’s visitation to alternate weekends, Wednesdays, alternate holidays, and one month in the summer. We affirm.
The standard of appellate review governing custody modifications is well settled. In child-custody cases, the primary consideration is the welfare and best interests of the child involved; all other considerations are secondary. Eaton v. Dixon,
The evidence at the hearing included the testimony of Lathaire, who testified that Robin basically let him have his younger daughter only when Robin was working her night shift at the hospital, although this still permitted each parent one-half of Krysten’s time. Lathaire was concerned that Robin was drinking, smoking, and having boyfriends spend the night with Krysten present. Lathaire said that some of Robin’s boyfriends had criminal histories and that Krysten was witness to violence at Robin’s house. In addition, Lathaire objected to Robin putting Krysten in a biracial situation by dating white men.
In contrast, Lathaire said that he lived in a three-bedroom house with his older son, his seventeen-year-old daughter Lynzi, and Krysten. Lathaire said he also saw his twelve-year-old son from another relationship at least once or twice a month and paid support for him. Lathaire confirmed that he had many brothers and sisters in the immediate area to help care for Krysten when he was at work as a car salesman or when he had to work at the family business, which apparently was a local bar or tavern.
Lathaire’s main concern was that even though Robin always smoked, drank, and had boyfriends, he could not monitor Robin’s behavior after they separated. Lathaire complained that her smoking was detrimental to Krysten’s asthma, and he could not prevent her being drunk in front of their daughter, or her having boyfriends stay overnight.
Lathaire explained that his older daughter Lynzi did not have a relationship with her mother Robin because Robin berated
Lathaire admitted that he was arrested once while driving in a caravan from a Razorback game back home and that the children were with him, but he explained that he did not understand the police to be trying to pull his car over, he had a minor wreck, he went to the station, and he waited with his children on a bench until posting bail. Lathaire also confessed that he had fallen behind in child support from time to time, but he thought that he had the right to do so when Robin denied his court-ordered visitation. He understood differently now. Lathaire said he had yet to have a female visitor over in Krysten’s presence, and he was bothered by what he characterized as Robin’s revolving door of boyfriends. Lathaire also said that Robin had kept his daughter out at a restaurant past her bedtime on a school night, and Robin was drinking.
Lynzi testified that she was a senior in high school, that she had no relationship with her mother, and that her mother did not even give her a birthday or Christmas gift. Lynzi testified that she observed hef mother get drunk and smoke in front of Krysten, as well as have boyfriends spend the night while Krysten was present. Lynzi said that her mother said derogatory things about her father and his family. Lynzi said that her mother was currently dating a white man. Lynzi reportedly found marijuana in her mom’s house but did not tell her about it. Lynzi helped to care for her little sister when her father had to be away, and she assisted in transporting her sister back and forth between houses. Lynzi wanted her little sister to live with her at their father’s house.
Robin testified that she and Lathaire had never abided by the original decree but that they had arranged it such that they each had Krysten about half the time. In fact, they continued to live together for months until Robin moved out of the marital home. Thereafter, she said he had no problem with having 4-3 day splits during each week to accommodate her work schedule at the hospital. Robin said she had worked graveyard shift (7 p.m. - 7 a.m.) for about twelve years, and she said her mother helped with Krysten when work prevented her from being at home on those occasions when Lathaire insisted on the full-week exchanges. Robin agreed that she would go back to the seven days on, seven days off schedule if that was what Lathaire wanted. Robin agreed that Lathaire was a good father and that Krysten loved her dad and spent time with him. However, Robin believed that she had more time to spend with her daughter, and she saw no reason to depart from their practice in the past of arranging it so that Krysten would never have to be with a sitter. At the time of the hearing on this matter, Krysten was five years old.
Robin pointed out that she had to seek court intervention three times to get her child support, but Lathaire would pay prior to coming to court. As to morals, Robin reminded the court that Lathaire impregnated a woman with his now twelve-year-old son while he and Robin were still married. Robin also pointed out that she was not racist like Lathaire and that, concerning Lynzi, he was too lenient and did not discipline Lynzi, which led to the discord between Lynzi and her mother. Robin said that the specific acts that Lynzi testified about were untrue, and furthermore that Lynzi never spent any time with Robin so that Lynzi would have no way of
Robin testified that she did not have a problem with one of Lathaire’s sisters caring for Krysten because even though the aunt had apparently had a drug problem, she was good to Krysten. Robin said that she had a friend who formerly had a drug problem, but she underwent treatment and was better, similar to Lathaire’s sister. Robin denied smoking in the house when Krysten was there, and she denied ever being drunk in front of her. Robin said that she did have a male overnight visitor once, but it was only because there was a winter storm and it was unsafe to leave. Robin denied any inappropriate behavior with him while Krysten was there. Robin explained that she did have Krysten out at Red Lobster on one occasion after her bedtime; Robin admitted to having one margarita. However, Robin said that this was a one-time occurrence.
Lathaire’s older son Jason Dansby, age twenty, testified that he was in college and living with his father. Jason said he helped take care of Krysten when she was there, until their father got home from work at around 7:00 p.m. Jason said that only family members helped to care for Krysten when their father was at work.
Robin’s mother testified that she knew Robin and Lathaire had made their own custody schedule since the divorce, accommodating Robin’s work schedule. Robin’s mother acknowledged that they did go back to the ordered schedule at least once, and she had to assist in keeping Krysten while her daughter worked. However, she said that Robin and Lathaire went right back to the altered schedule and that Lathaire never complained to her about it. She testified that she occasionally talked to Lathaire on the phone about the children and that they remained cordial.
The parties submitted their respective proposed findings of fact at the end of the case and thereafter the court filed its fifty-six findings of fact about what it believed to be true in the testimony. Apparently, everything negative about Robin was believed true, and everything positive about Lathaire was believed true. The most egregious bad acts found were that Robin smoked, drank, cursed, and cohabited with boyfriends in the presence of Krysten. He found that Lathaire provided a greater moral example and provided a more secure and structured life for Krysten than Robin. He found that Robin had allowed a known drug user in Krysten’s presence and that Robin and a boyfriend engaged in domestic violence in front of the children. The judge noted in his findings that Robin stated that she has no problems with Lathaire Dansby as a father and said that he is a good father. He found that they had not followed the ordered visitation due to Robin’s fault, that material changes had occurred, and that Krysten’s best interest would be to be placed in her father’s custody. Robin was granted every-other-weekend, every Wednesday, alternate holiday, and one-month summer visitation. This appeal followed.
Before we consider the points on appeal in our de novo review, we must first make clear that one of the fifty-six findings of fact was an impermissible consideration. The trial judge stated in finding number thirty-nine that appellant, “a black woman, dates only white men.” No objection was raised to the testimony on this issue at any time; nor did appellant object to this finding when it was proposed by appellee’s counsel or when the trial court included it in its findings of fact and conclusions of law filed on March 21, 2003, some twelve days before the final order
In response to the dissenting judges’ assertion that the issue of race was first advanced by Robin, we disagree. Lathaire, as the moving party, testified first and made clear that he objected to his daughter being exposed to a biracial situation. Robin raised no objection. When Robin testified, she acknowledged that Lathaire did not like the fact that she dated white men, claimed that she did not teach prejudice, affirmed that Lathaire was a good father, and asked the court to leave intact the joint-custody arrangement. At no time did she or her counsel claim that it was legally wrong to advance concerns about biracial dating as a basis for changing custody.
Nevertheless, we take this opportunity to state that the United States Supreme Court made abundantly clear in Palmore v. Sidoti,
Even though no objection was raised to the inappropriate finding number thirty-nine, we do not find on our de novo review that it is of any consequence inasmuch as it neither strengthens nor weakens either party’s position on the best interest of the minor child. Therefore, we proceed in our de novo review to examine the remaining fifty-five findings of fact to determine whether they support the conclusion that material changes occurred and that it was in Krysten’s best interest for Lathaire to be granted custody. We hold that those findings support the trial court’s decision, and we affirm.
In determining whether a change in custody is warranted, the trial judge must first decide whether there has been a material change in circumstances since the most recent custody order. Word v. Remick,
Joint custody or equally divided custody of minor children is not favored in Arkansas. Thompson v. Thompson,
Applying the proper standard of review to the order on appeal, we affirm. Here, the change in circumstances was that Robin’s bad acts were happening in the presence of the child, where they were presumably hidden before the divorce. To her detriment, the judge believed the testimony that Robin had men in the house overnight at least once while the children were present; that marijuana was found in Robin’s house by Lynzi; that Robin spoke disparagingly of Lathaire in the children’s presence; that Robin was drunk and smoked in front of the asthmatic child; and that while the parties were able to work out the schedule most of the time to give each other one-half of Krysten’s time, they were in disagreement now. The judge apparently was persuaded by Lathaire’s explanations for not paying child support when he was frustrated, and for his arrest in the children’s presence. We must defer to the credibility calls made by the trial judge. Moreover, joint custody should only stand where the parties are very agreeable. See Word v. Remick, supra. Given the standard of review, we affirm the change from joint custody of Krysten to Lathaire having full custody.
In contrast to the dissenting judges, we do not see this, after credibility determinations were made, to be a “close case.” If we sat as the finders of fact on credibility, we might have also determined this to be a close case. However, de novo review requires that we examine the record as a whole, but it does not allow us to change .what testimony was believed true or untrue as found by the trial judge. With the extensive findings of fact, clearly demonstrating that the trial judge believed Lathaire to be a better moral, stable, and proper parent for Krysten than Robin, we are not left with a definite and firm conviction that a mistake was committed.
Robin’s second point on appeal asserts that if the change of custody is affirmed, the trial court committed reversible error in granting her limited visitation with Krysten. We disagree. We review cases such as this de novo and reverse only when the trial court’s findings are clearly erroneous. Hollandsworth v. Knyzewski,
Robin states in her brief that she should be given “the same visitation that Mr. Dansby had for four years.” She is in error. The parties had joint custody, and
Affirmed.
Notes
Lynzi turned eighteen in early 2003. Her custody/visitation is not at issue.
Dissenting Opinion
dissenting. The parties to this child-custody case were divorced on September 14, 1999. Pursuant to the divorce decree, the parties were awarded joint custody of their daughter, Krysten, who was born in 1997. The decree further provided that physical custody of Krysten was to alternate between the parties every other week, and that appellee was to pay child support in the amount of $130.00 per week. In September 2003, appellant filed a motion for enforcement of the decree and contempt seeking a child-support arrearage of $3,700.00. This was the third time that appellant was forced to resort to the court to obtain the support appellee had been ordered to pay for the benefit of his child. Appellee answered with a request for a modification of custody. After a hearing, the trial judge entered an order awarding full custody to appellee. This appeal followed.
Appellant argues that the trial court erred in basing his findings of material change of circumstance and best interest on the fact that appellant, a black woman, has dated only white men since the divorce, thereby exposing the child to what appellee, who is also black, characterized as a harmful “biracial situation.” The majority, while conceding that the trial court did base its order on this factor and that this was contrary to the law, does not address the issue, holding that it was not preserved for appeal because appellant did not object below. The majority also opines, in dicta, that the error was of no consequence in any event. I disagree, and I dissent.
The majority errs in holding that the issue was not preserved for appeal. First, because appeals in equity cases are reviewed de novo, there is no requirement of contemporaneous objections to the findings, conclusions, and decree of the court to obtain review on appeal. Jones v. Abraham,
There is no question that the trial court erred in considering appellant’s dating persons of another race as a factor in awarding custody to appellee. The impact on the child from remaining in a racially-mixed
It would ignore reality to suggest that racial and ethnic prejudices do not exist or that all manifestations of those prejudices have been eliminated. There is a risk that a child living with a stepparent of a different race may be subject to a variety of pressures and stresses not present if the child were living with parents of the same racial or ethnic origin.
The question, however, is whether the reality of private biases and the possible injury they might inflict are permissible considerations for removal of an infant child from the custody of its natural mother. We have little difficulty concluding that they are not. The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect. “Public officials sworn to uphold the Constitution may not avoid a constitutional duty by bowing to the hypothetical effects of private racial prejudice that they assume to be both widely and deeply held.”
Id. at 433 (internal citations omitted).
Nor do I agree with the majority’s suggestion that this error was harmless. This was a close case. Although there was evidence that appellant’s behavior has not at all times been exemplary, weighing against that evidence is the established and undeniable fact that appellee has three times required appellant to resort to the court to obtain the child support that appellee had been ordered to pay. There was, in addition, appellee’s racial intolerance, which the trial court not only failed to weigh against him but instead viewed with approbation. Particularly poignant, to me, is appel-lee’s own testimony that, upon encountering the interracial couple of appellant and her boyfriend in a restaurant, his elder daughter was mortified, while Krysten “being a five-year-old kid knows no different.” One cannot help, .upon reading this, but to reflect that the elder daughter has already learned the painful and divisive lesson of racial bigotry that the child whose custody is here at issue has yet to be taught.
Although the trial judge’s findings were generally favorable to appellee and unfavorable to appellant, there is no way to determine, on this record, how much his erroneous view of the law influenced his decision or, indeed, the other findings set out in his order. I do not think that we should presume that the trial court’s error is indicative of bias on its part, but neither do I think that we should summarily deny appellant the opportunity to raise that issue should she desire to do so. In similar situations, where the trial court has erred as a matter of law in awarding custody, we have reversed and remanded to allow such further proceedings as might be necessary to determine the question of custody to be conducted in the trial court. See Walker v. Torres,
I respectfully dissent.
There was no occasion for appellant to object to appellee’s testimony regarding what he characterized as a “biracial situation.” Granted, it was appellee who first testified that he objected to his ex-wife dating white men. However, this testimony was not prompted by questions asked by appellee’s own attorney on direct examination, but was instead directly responsive to a question asked by appellant’s attorney on cross-examination. This question was clearly designed to show that appellee was racially bigoted, and appellee’s testimony to that effect was incontestably “elicited” by appellant. See Turner v. State,
Oddly, the majority states that the preservation question in this case is “similar to the recently decided Tipton v. Aaron!’ Insofar as the purpose of an objection is to draw the trial judge’s attention to an asserted error, it is difficult to imagine more dissimilar circumstances. In the present case, as discussed supra, there was no reason for appellant to suppose that evidence of appellee’s racial intolerance, elicited by appellant’s attorney for the manifestly proper purpose of showing a lack of fitness on appellee’s part, would be viewed by the trial judge as a factor favorable to appellee. The error did not become apparent until the proceeding had concluded and the trial judge’s error was demonstrated for the first time in his findings of fact. In contrast, the testimony in Tipton v. Aaron,
Oddest of all, perhaps, is that the majority strains to discern a parallel between this case and Tipton v. Aaron on the issue of preservation, while simultaneously ignoring the striking similarity of the facts with respect to the merits. Confronted with evidence of the father’s racial intolerance in Tipton v. Aaron, we used that evidence to support the reversal of an award of custody to that father — and did so despite the fact that the issue had, in effect, been expressly waived at trial. In the present case, where there was no reason to object at trial, the majority ignores the question of the father’s racial intolerance and states that it is of “no consequence” because “it neither strengthens nor weakens either party’s position on the best interest of the minor child.” The issue in both cases is identical — whether the father’s child-rearing philosophy promotes racial tolerance — and I respectfully submit that it cannot be grounds for changing custody in one case and of no consequence whatsoever in the next.
Dissenting Opinion
dissenting. In this case, the trial court ordered a child removed from the custody of its mother, specifically listing racial bias as one reason for the custody determination. That reason alone renders the ordr inherently suspect, and that fact alone demands reversal. To do otherwise not only tolerates,
Therefore, I dissent.