ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JUDGE JOSEPHINE LINKER HART

DIVISION I

BRIAN R. BEARDEN

APPELLANT

V.

FAWN A. BEARDEN

APPELLEE

CA01-1255

October 9, 2002

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. DV-99-0738]

HONORABLE ALICE S. GRAY,

CIRCUIT JUDGE

AFFIRMED

Brian Bearden appeals the provision of the decree of divorce that awarded Fawn Bearden, appellee, primary physical custody of the parties' minor children, Farren, age four, and Brendan, age two. Appellant argues that the court's finding that it was in the best interest of the children that custody be awarded to appellee was clearly erroneous. We disagree with appellant and affirm.

On February 16, 1999, appellant filed a complaint seeking a divorce from appellee and custody of the minor children. Subsequently, an agreed temporary order was entered that awarded custody to appellee.1 The order also contained the parties' agreement toundergo a custody evaluation through Arkansas Children's Hospital (ACH) to be paid for by the appellant.

After a bench trial on June 23, 2000, the court granted appellee a divorce, continued the agreed temporary custody order, and reserved the final determination of child custody for a period of six months. The trial court held a review hearing in February 2001, and on May 4, 2001, entered a final order awarding permanent custody of both children to appellee and granted appellant liberal visitation. From that order comes this appeal.

On review of this chancery matter except for issues not argued2, "the whole case is open for review; therefore, all issues raised in the court below are before us for decision, and a de novo review on appeal in chancery involves determination of both fact questions and legal issues." Atkinson v. Atkinson, 72 Ark. App. 15, 32 S.W.3d 41 (2000) (citing Bradford v. Bradford, 34 Ark. App. 247, 248, 808 S.W.2d 794, 795 (1991)). We will affirm the chancellor's findings unless the findings are clearly erroneous. See Ark. R. Civ. P. 52(a); Hobbs v. Hobbs, 75 Ark. App. 186, 55 S.W.3d 331 (2001). Although there is evidence to support it, a finding is clearly erroneous when the reviewing court is left with the definite and firm conviction that a mistake has been made. Smith v. Parker, 67 Ark. App. 221, 224, 998 S.W.2d 1, 3 (1999).

In child custody cases, the primary consideration is the welfare and best interests of the children involved; all other considerations are secondary. See Eaton v. Dixon, 69 Ark.

App. 9, 9 S.W.3d 535 (2000); Ideker v. Short, 48 Ark. App. 118, 892 S.W.2d 278 (1995). Because the question of whether the trial court's findings are clearly erroneous turns largely on the credibility of the witnesses, we give special deference to the superior position of the chancellor to evaluate the witnesses, their testimony, and the child's best interests. Friedrich v. Bevis, 69 Ark. App. 56, 9 S.W.3d 556 (2000).

Although appellant's sole argument for reversal is that the trial court was clearly erroneous in finding that it was in the best interest of the children to be placed in the primary custody of appellee, his argument is broken into four categories. For his first point, appellant argues that the facts establish appellee's financial irresponsibility and the instability of the children's home environment while in appellee's custody. In support of his argument, appellant notes that appellee moved three times since the parties separated and received several "notices to vacate" her apartment. Additionally, he asserts that appellee's furniture was repossessed, appellee's payments of utility bills were delinquent, and on more than one occasion, the utilities were disconnected.

Appellee testified that she had, in fact, relocated three times during the twenty-seven-month period since separation. She acknowledged receiving notices to vacate from Fountain Lakes, the apartment complex into which she and the children initially moved. She testified that after Fountain Lakes, she and the children temporarily moved into her sister's home. However, at the time of the trial, appellee and the children resided in a home rented by appellee in Jacksonville. Subsequent to the separation, appellee obtained full-time employment with Climatic Corporation located in southwest Little Rock. At the time of thehearing, appellee had been employed with Climatic for approximately one year, and her salary was $9 per hour after she had received two raises.

During the time of their marriage, both parties experienced financial difficulties. Appellant admitted there were financial difficulties but denied they were caused by him. Furthermore, appellant adamantly argues that the trial judge's finding that his income had been supplemented by his parents was not supported by any evidence, and thus, it was an abuse of discretion. Although appellee continued to be delinquent in her financial obligations after the separation, the trial court determined that such difficulties have not materially affected the safety or well-being of the children. We note that appellant's affidavit of financial means discloses that his income was $240 per month. Thus, we cannot say that the court's determination that it was in the best interest of the children for appellee to have custody was clearly erroneous.

For his second point, appellant contends that appellee is promiscuous. Appellant asserts that appellee has had multiple sexual liaisons since the separation and directs our attention to the appellee's testimony that she has had a guest of the opposite sex stay overnight in the home while the children were present. Appellee explained, however, that the overnight guest was just a friend and not a sexual partner. Appellee admitted that she had seven sexual partners since the separation but explained that her activities were conducted outside the presence of the children.

She expressed great remorse for her actions during the early months of the parties' separation and acknowledged that she had, in fact, allowed one man to spend the night in herhome with the children present. Appellee went on to testify that her fiancé has stayed at the residence on a regular basis since March 2000.

Likewise, the appellant testified that his girlfriend has been at his house in the mornings when appellee would drop off their younger son. He explained that his girlfriend worked nights and would sleep at his house for a few hours two or three times a week before going home. The court noted the parties' violation of the court's admonishment not to have overnight guests of the opposite sex who are not family members while the children were present in the home and advised the parties that future violations would not be tolerated. We agree with the trial court's finding that both parties had violated the court's admonishment not to have overnight visitors of the opposite sex who are not family members or spouses while the children were present. Cohabitation of a parent, although regarded as a negative in a child custody determination, does not itself disqualify a parent from obtaining custody; cohabitation is but one factor along with all other factors to be considered in deciding the best interest of the children. Campbell v. Campbell, 63 Ark. App. 136, 975 S.W.2d 869 (1998).

Appellant also contends that appellee failed to attend to the medical needs of the children. Appellant's basis for this point arises from an incident in May 2000, when the parties' daughter injured her ear. According to the ACH phone log, appellee called the hospital and was advised that the staff should evaluate the ear. However, appellee did not want to bring the child into the hospital, and she was given instructions on how to properly care for the wound. Appellee countered this argument by noting that the children were notcovered by medical insurance until she obtained coverage for them after separation from appellant.

Finally, appellant argues that the expert testimony of Dr. Margarita Garcia of the University of Arkansas Medical Sciences concluded that appellant would be a better parent for the custodial placement of the two children. After being contacted by appellant, Dr. Garcia evaluated appellant, appellee, and the children. She interviewed the children alone and together with each parent.

In her report and her testimony at trial, Dr. Garcia opined that appellant would best meet the children's needs on a consistent basis. In her report, she noted that appellant was "more stable in his employment and in his ability to establish and maintain a `home' for these children." In her opinion, appellee had experienced difficulty in maintaining a home and that appellee living with her sister was an improvement but was not an ideal situation. However, in her testimony, Dr. Garcia stated that if appellee had a suitable home and she was paying bills in a timely fashion, it would affect the conclusion of her report concerning recommendations regarding visitation.

Dr. Garcia stated that appellant was more focused on his role as a parent. She based her conclusion primarily on the fact that appellant would bring the children snacks to her office during their interviews. Appellee testified that she had not brought the children snacks to the doctor's office because she had just fed them breakfast. Also, Dr. Garcia noted that appellant was more effective with disciplining the children whereas appellee was less structured. However, she also expressed concern regarding appellant's anger managementand use of excessive force.

In her testimony, Dr. Garcia noted that she had stressed in her report the importance of the parents' involvement with school activities and that appellant attended all parent-teacher conferences at the older child's preschool, and appellee did not attend school functions. Appellee countered Dr. Garcia's testimony by stating that she had begun attending many of the older child's school activities including parent-teacher conferences, a field trip, a parade, and classroom parties. The court did not specifically address Dr. Garcia's report or testimony. Therefore, we are unable to ascertain the weight, if any, that the trial judge gave to the testimony of Dr. Garcia. However, it is within the sound discretion of the trial judge to assess the credibility of the witnesses and to resolve conflicting testimony. McClard v. McClard, 50 Ark. App. 189, 901 S.W.2d 33 (1995).

Both parties filed affidavits of financial means, which were updated following the final hearing and taken into consideration by the trial judge when determining the amount of child support appellant was to pay.3 Appellee's affidavit of financial means discloses that her monthly take-home pay is approximately $1,225.91, and her monthly expenses and payments to creditors total $1,030. More importantly, the expected income of appellant, as set out in his affidavit, has substantially decreased. According to the statement, appellant's monthly expenses totaled $1,169, and his take-home pay was $80 per week orapproximately $346.72 monthly. Further, appellant's affidavit of financial means also lists that he has incurred $24,900 in loans to various sources and has monthly payments totaling $899 since the divorce proceeding. From these figures, appellant's expenses for one month average $2,068 while his take-home pay is only $240. Appellant testified that his parents and grandparents had helped him with some of the litigation costs of this case. While the financial expectations of the parties is not the single controlling factor, it is one to be considered when determining the best interest of the children.

The trial court found that it would be in the children's best interest for appellee to have custody with appellant having liberal visitation that was specifically set out in the order. The trial judge, noting that appellee was much more credible than appellant, found that appellee had presented a feasible plan for the care of the children that would allow "more stability and consistency" for the minors.

After reviewing the reports of Dr. Garcia and hearing the testimony of both parties and other witnesses, the chancellor made the finding that it was in the minor children's best interest for appellee to have custody. Based on our review of all the evidence, we cannot say that the chancellor's determination to grant custody of the children to appellee was clearly erroneous. We affirm.

Affirmed.

Jennings and Griffen, JJ., agree.

1 The agreed temporary order also set forth the following: 1) the visitation schedule for the parties: 2) the protocol for medical care of the children; 3) the order of no child support at the time; 4) the appellant's responsibility of the note and insurance payments on the vehicle in appellee's possession; 5) responsibility of the medical coverage of the children; 6) the obligation of debt repayment by both parties.

2 See Country Gentlemen, Inc. v. Harkey, 263 Ark. 580, 569 S.W.2d 649 (1978).

3 In order for the court to have a comparative analysis, and because the affidavits listed only the weekly take-home pay, we calculated the appellee's and the appellant's monthly income using Arkansas Court Rules Administrative Order No. 10 , Section III which states "for the purposes of computing child support payments, a month consists of 4.334 weeks."