*1 Gene RIDDLE v. Ronald RIDDLE Karen CA 89-11 of Arkansas
Court of Appeals Division II delivered September Opinion [Rehearing denied October 1989.*] J., * Rogers, grant rehearing. would
Hardin, Dawson, & Jesson T. J. by: Robert Dawson III, Leslie Evitts for appellant. Jr., Smith,
Willard Crane for appellee. Cooper, James R. Judge. The in this child case, Riddle, Karen Ibison and mother Robert 21, Riddle. Robert Ibison was born on 1983. September single not his father. The raised him as a Riddle, her marriage until to the Robert Gene February marriage August 1986. Brian Riddle was born to on 1988, 7, and the 10, on May 1987. The parties separated After a May on 1988. for divorce filed a complaint on his divorce to the hearing, the chancellor Ibison to counterclaim, appellant, of Robert granted custody From of Brian Riddle granted custody decision, comes this appeal. failing chancellor erred in contends children, argues that the and she her of both
grant bond that there was closer Brian and the than between between Brian and the appellee erred in splitting She also contends appellant. *3 circum- in the absence exceptional of the children custody stances. affirm. that the chancel- the contention
We first address appellant’s and the appellee. lor in closer bond between Brian erred a is, fact, chancellor argument This in an that the point to be the it would be in Brian’s best interest concluding that been Brian’s (1) had appellant because: the appellee’s to awarding custody during marriage; (2) caretaker the primary to awarding of Brian his the is to tantamount appellee to the award (3) paternal grandparents; of the “tender an to the abolition the father was overreaction evidence; and it was the years” doctrine unsupported to a closer bond the determine that impossible for when chancellor had existed between and the appellee never seen the child. novo, do cases we
Although chancery we review de against findings they clearly disturb the chancellor’s unless the evidence. Because the question preponderance on the largely credibility of the evidence turns preponderance witnesses, to we to chancellor’s superior opportunity defer 52(a); Callaway Callaway, R. P. credibility. assess Ark. Civ. the evidence shows asserts that children and that the caretaker of the primary she was However, the to offered minimal assistance her. appellee only record is with evidence show that replete appellee been an active and that he had caring young for was marriage. testimony There caretaker parental during that the had appellee meals for the children had prepared dressed and bathed Brian. was that the There appellee had acted as the caretaker for the children when primary daytime worked shift and the worked an evening sister, shift. The called as appellant’s witness, testified that the is a good father who took good care, care of the children when were in they his and she stated that she had no concern about the for appellee’s ability care children. herself admitted that Finally, the appellee had always care Brian. helped that, guise states under the chancellor fact awarded Brian to his paternal that, grandparents, and asserts should the affirmed, chancellor’s decision be “it bewill the appellee’s parents who care, will be assuming the for the continued responsibility education, Brian, and control of rather This Appellee.” assertion is not supported by the record. it is Although undisputed has been living his since the parents separation, he testified that arrangement temporary that he intended to find his own after the lodgings divorce and custody questions were concluded. He also testified al though his mother had helped with the while were boys in his after separation, he been the caretaker. primary *4 He testified that this he during time had returned from work at care, 3:00 the p.m., picked children at day their cared for them up until the next morning, and them off at the care. dropped We find no merit to this argument.
Next, the asserts that the chancellor’s order of to custody Brian his father was an overreaction on the chancellor’s in the form an part of to exaggerated avoid attempt application of the “tender years” doctrine. This is based point on the solely following hearing: statement the chancellor at the tender years doctrine is no longer something Court “[T]he will consider.” The “tender is a doctrine rule of law years” a court will whereby presume the mother to be more suitable custodian of a child of tender and will award to her years for the of sake the child’s See Am. Jur. 2d Parent and welfare. 59 (1987). However, Child 25 Ark. Code Ann. 9-13-101 § § that child provides custody awards in divorce actions shall be made solely accordance with the best interests of our light In of the parent. and without to sex regard 97, 3 Ark. Drewry Drewry, statement in indicates that of 9-13-101 (1981), language that the clear § legal gender-based any abolish legislature intended to fully determinations, the chancellor's in child preference We find no of the law. a correct statement merely comment was overreaction. allegation to the appellant’s support also asserts The appellant Brian and the a bond between that there was closer finding seen child. when the chancellor never chancellor found that: demonstrated the father has parties, the two
[BJetween Brian, also and has more devotion to caring for shown himself to be physically is a emotional deeper child finds that there Court there is him and the child than attachment between — and the Plaintiff. him between child between indicates between think the chancellor’s statement be the most devoted he found to Brian, which relevant emotionally finding attached without the and one which could made Brian’s best interest love the children in being Both present. parties expressed was the their testimony. his evaluation of devoted must have been based on more therefore earnestness, as veracity parties sincerity, a court which is great testified. is of value to Personal observation in custody mother and father called to choose between upon case. See Holt v. 242 Ark. S.W.2d Taylor, extent, utilize, to the all Chancellors in such cases must fullest witnesses, evaluating the their powers perception children. We know no testimony, and the best interests ability, opportunity cases in position, which superior weight as much as carry the chancellor to observe the parties Calhoun, Calhoun involving those cases minor children. *5 270, 545 We not disturb the will App. did finding on this issue. hold grant interest to not err in it to be in Brian’s best custody that, given the chancellor’s
The next contends finding that the was not unfit an parent, erred in granting of one child to each of the custody rather of both children to the custody appellant. appellant cites S.W.2d 933 Stamps v. Rawlins, (1988), for the of a be proposition that custody may awarded to a only when natural is shown stepparent parent unfit, Ketron, 325, be and Ketron 15Ark. 692S.W.2d261 (1985), for the that be proposition children should not young separated from one another by dividing absence of circumstances. On the basis of this exceptional she that she authority, argues correctly granted Robert Ibison unfit, because she was be not shown to and that she must therefore be custody of Brian to prevent children from being separated.
We do agree not that the law child be custody must applied in such rigid Moreover, and mechanical fashion. cases cited appellant do not mandate such a Ketron result. Ketron, supra, is cited as authority argument prohibition against separating children with force applies equal in cases where the children are A half-siblings. reading careful Ketron, however, case, shows that we did not so hold in that but instead noted merely chancellor’s reluctance to divide half-brothers was “consistent with” the rule that young should not be from each other in the separated Ketron, absence of at exceptional circumstances. Ark. App. 328.
Our chief concern with the theory advanced by appellant is that it no requires consideration the children’s best interests: should the chancellor find that the one natural step-sibling is not unfit and that exceptional circumstances must, he present, formulation, under the appellant’s grant of all the children to considering without parent, whether their best interests would be by granting better served custody to the other theory is thus in parent. conflict both with Ark. Code Ann. 9-13-101 (1987), which § mandates that awarded in accordance with “solely children,” welfare and best interests of the the well- determinations, settled in child the best principle See, interests of the child e.g., concern. paramount Stephenson v. Stephenson, *6 Benson, 237 Ark. Benson consideration);
(unyielding Haller, Haller v. consideration); (controlling 263 S.W.2d bar In the case at 9 (1961) (polestar). had appellee was to show of there in numer engaged lifestyle, the more settled while that required her the home and which took out of ous activities Moreover, the chancellor be left in the care of another. child of the be in best interest that it would found specifically Robert, visita for appellee’s stepson, the chancellor’s justified We hold the circumstances tion. that half-brothers, we affirm. order dividing custody Affirmed. J., agrees.
Mayfield, J., concurs.
Rogers,
concur
Rogers,
Judge, concurring.
reluctantly
I
Judith
child
findings in a
with the
The chancellor’s
majority opinion.
against
unless
are clearly
case will not be reversed
Wallace,
Rush
evidence.
preponderance
review
61,
An of the record indicates that paternal examination num- Riddle, he counted the grandfather, Johnnie testified that son, children upon ber of of the two days his testified, write He “it important was parties’ separation. because he though seeking custody, them down even he wasn’t to, he knew and I knew that.” This chain going was that sincerity calls motive events into question appellee’s these The evidence reveals seeking children. sought originally asking his
Riddle. then amended counterclaim Appellee Ibison, and Robert appellant’s both Brian Riddle child. sister, Tuck, that she admired Rita testified who took care good and that was a mother examination did she testify
her children. on cross Only took care of the when pretty good worker, Allen, not around. The care Carol testified that the *7 children were She further testified that well-adjusted. brought picked children most of the time. up both
Certainly themselves fit and parties proven taking care of being the children. Absent the chancellor able to see interaction or any between the children between the children parents, it is difficult to read record and conclude that one party had demonstrated more love devotion other This party. determination is made even more difficult fact no expert testimony was and no given study home conducted.
One factor to be considered in the
determination of
best
interest of the child is the importance of
and half
keeping siblings
siblings together. That is
we have
why
said
cases that when
past
separating young children
must be
exceptional circumstances
Ketron,
325,
My is that we continue to weigh the impact cases, separating siblings in and that we try should continue to keep young siblings together. must assume chancellor considered the decided splitting the children and love, that the other factors such as appellee’s ability devotion and to care for the outweighed child’s separation further from another member. family