ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN F. STROUD, JR., CHIEF JUDGE

DIVISION IV

BRANDY MARIE HEWITT

APPELLANT

V.

GARY DON HEWITT

APPELLEE

CA 02-81

October 23, 2002

APPEAL FROM THE CLEBURNE

COUNTY CHANCERY COURT

[E-2000-197-2]

HONORABLE JOHN NORMAN

HARKEY, JUDGE

AFFIRMED

Appellant, Brandy Marie Hewitt, and appellee, Gary Don Hewitt, were married on February 14, 1998. Their child, Gage Earl, was born on March 21, 1999. Appellee filed for divorce on July 14, 2000. The divorce was awarded on an uncontested basis, but both parties sought custody of the child. The custody matter was tried in early 2001, and an order awarding custody of the child to appellee was entered on April 9, 2001. The sole issue raised by appellant in this appeal is whether "the trial court committed clear error when it separated half-siblings by awarding custody of the parties' minor child to the appellee." We find no error and affirm.

On appeal from a chancery court case, we consider the evidence de novo, and we will reverse the chancellor's findings of fact only if they are clearly contrary to the preponderance

of the evidence. Eaton v. Dixon, 69 Ark. App. 9, 9 S.W.3d 535 (2000). Because the question of the preponderance of the evidence turns largely on the credibility of the witnesses, we defer to the superior position of the chancellor, especially in cases involving child custody. Id. A finding is clearly erroneous when the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Skokos v. Skokos, 344 Ark. 420, 40 S.W.3d 768 (2001). Custody is not awarded to reward or punish either parent. Eaton, supra. The primary consideration in awarding the custody of a child is the child's welfare and best interest, and other considerations are secondary. Id. We have often recognized that there is no case in which greater deference should be given to the chancellor's position, ability, and opportunity to see and evaluate the evidence than those involving the welfare of minor children. Calhoun v. Calhoun, 3 Ark. App. 270, 625 S.W.2d 545 (1981).

In Atkinson v. Atkinson, 72 Ark. App. 15, 20, 32 S.W.3d 41, 45 (2000), we held:

[T]he awarding of child custody based solely on the presumption that siblings should be kept together is contrary to Act 278 of 1979, which is codified at Ark. Code Ann. § 9-13-101(a) (Supp. 1999), and states:

In an action for divorce, the award of custody of the children of the marriage shall be made without regard to the sex of the parent, but solely in accordance with the welfare and best interests of the children.

(Emphasis added.) The General Assembly's intention by passing Act 278 is clear - - when determining as a part of a divorce action the custody of children of the marriage, the lone criterion is the welfare and best interest of the children. Accordingly, although the value of keeping siblings together is a factor in determining what is in a child's best interest, this rule cannot rise to the level of a presumption that contradicts the statutory standard expressed in Act 278.

Moreover, the prohibition against separating siblings in the absence of exceptional circumstances does not apply with equal force in cases where the children are half-siblings. Eaton, supra.

Appellant summarizes her argument in the following manner:

Appellant's argument is that the separation of the siblings was clearly erroneous. And, Appellee is correct in that the consideration of separating siblings is but one factor when considering what is in the best interest of the child. Appellant clearly argued at the trial court level by presenting testimony of witnesses that there was a close sibling relationship between the two children. The record is absent any showing that Appellee made notice of the factor concerning what was in the best interest of the child. Appellee's testimony, and his witnesses', focused on how much Appellee had supposedly spent time with the child. Neither does the record show any consideration by the trial court of the factor of separating half siblings as having a bearing on the best interests of the child. . . . The relationship of the siblings appears to have not even been a consideration in the trial court's determination.

(Emphasis added.) In its letter opinion of April 9, 2001, the court stated in pertinent part:

2. By agreement, the divorce is granted to the father on an uncontested basis. The father and the mother each seek custody of the child. The mother has a child from a previous relationship, and great care should be exercised before separating siblings. However, this concern is ordinarily not as great where, as in this case, the children are of the half-blood. Eaton v. Dixon, 69 Ark. App. 9 (2000).

3. The mother demonstrates, by her actions prior to trial and by her manner of testifying, a marked lack of maturity. I do not believe she is truthful about her relationship with Mr. Camp. Subsequent to the first day of trial, additional testimony was taken. It now develops Mr. Camp has moved from Searcy into a house located about fifty feet from Ms. Hewitt. She still maintains he is just a friend. I am genuinely concerned this mother has difficulty in distinguishing fact from fiction. She has made baseless charges against the father concerning conditions in the father's home. There is circumstantial evidence that the mother either herself or through another burglarized the father's home and took only certain selected items by amethod (using a hammer taken from a closet she knew about) and of a nature (leaving new weapons she had bought him but taking other weapons, and moving cash to his dresser instead of taking it) which indicates she was the culprit. This is consistent with what appear to be other attempts to harass her husband.

4. I am persuaded under all the proof that it is best for this little boy to live with his father.

(Emphasis added.)

It is clear from the court's explanation in paragraph 2 that it did consider the separation of the siblings in connection with the best interest of Gage. Moreover, the court clearly found that appellant's testimony lacked credibility in several regards and that she demonstrated a lack of maturity, both of which findings the trial court is in a decidedly better position to judge than the appellate court.

Here, appellant testified that in addition to the child of her marriage with appellee, she also has a six-year-old child, Haylee. She stated that her parents were Haylee's guardians, which she said was set up for insurance purposes, and that she was currently trying to get the guardianship set aside. She stated that she lived with appellee for about six months prior to their marriage, and that during that time Haylee lived with her mother and grandmother "because I didn't want to put her in that kind of environment."

Following her separation from appellee, she acknowledged that she contacted the sheriff's department on December 27 and January 7 to ask for a "welfare check" on Gage. She also acknowledged that on January 26, she had a package delivered to appellee at work, and that the package contained "female rubber genitalia with slime coming out of it . . . in a cage with a tarantula." She said that she sent it because of his girlfriend.

She denied having a relationship with a man named David Camp and said that she had never spent the night at David's house. She also acknowledged filing an Order of Protection "last summer" against appellee, which she later dismissed. She stated that she had filed another one "last week," and that she would not dismiss it. In it, she claimed that appellee threatened to kill her during an episode in which he took a picture of her holding Gage in front of David Camp's house early one morning.

She stated that she is currently employed by CenturyTel as a dispatcher and that her hours are 8:00 a.m. to 5:00 p.m. She said that her net weekly earnings are $250 and that she takes Gage to day care in Cabot when she has him.

Amanda Tate, an investigator for DHS, testified about the Child Abuse Hotline complaint that appellant lodged against appellee. She stated that she investigated appellee's house and found the allegations to be unfounded.

Appellee, Gary Don Hewitt, testified that appellant lied to him all the time; that she did not cook nor take care of the kids like he thought she should; that he did most of the cooking; that he drinks alcohol, but not on a regular basis and not in Gage's presence; that he has had a relationship with one woman since he and appellant separated; that the woman is married but that she is separated and getting divorced soon; that he has never brought the woman into his house after Gage went to bed; and that he is a member of and attends Sunny Slope General Baptist Church.

He stated that he now works from 7:00 a.m. to 3:30 p.m.; that he normally wakes up around 5:30 a.m. and gets Gage up; that he fixes Gage breakfast and then takes him to hisfather's house; and that his father watches Gage until appellee gets off work. He stated that during the marriage he worked second shift and kept Gage while appellant worked from 8:00 a.m. to 3:30 p.m., and that she kept him when she got off work. He stated that his family lives a quarter of a mile away; both of his sisters live nearby and they have kids; and that every Sunday the entire family gets together to have dinner with his parents. He further stated that he reads books to Gage; that Gage's favorite books are Noah, Big Bird, Sesame Street, and Tall and Small books; that Gage loves reading; that they go to the lake and play; and that Gage has a little puppy.

He stated that his net income is approximately $330 a week; that he can provide for Gage's financial and emotional needs; and that he disciplines Gage with time-outs. He stated that appellant took primary care of Gage during his first three months, but that when she stopped breast feeding she turned Gage over to appellee. He said that he took care of Gage, got up in the middle of the night, and changed most of the diapers. He also said that he did most of the cooking and cleaning during their marriage.

He said that he was aware of the guardianship over Haylee when he first started dating appellant; that she told him her parents didn't think she was fit to take care of a child because she was young; and that he put Haylee on his insurance policy as soon as they got married and that she is still on his insurance.

Appellee stated that on December 27, a police officer came to his house to check on Gage's welfare and that the officer seemed satisfied with what he found. He said that on December 30, his house was burglarized, and that some of his guns were taken but not thosethat appellant had given him. He said that the safe was opened with a hammer taken from a closet where appellant knew he kept his tools. He said that on January 7, another police officer came out for a welfare check and that on January 9, he saw appellant and David Camp driving by his house very slowly and stop by his truck. He said that they "took off" when he turned on the light, and that he went after them. He stated that he did not realize that Gage was in the car with appellant.

He stated his belief that appellant was spending the night at David Camp's house and that she had Gage with her. He acknowledged that he had driven by her house one night, around midnight, and that no one was there. He said that was how he knew she was at Camp's. He said that he, his father, and sister bought a cheap camera at Wal-Mart at around 5 a.m. and arrived at Camp's house at approximately 5 or 5:15 a.m. that morning. He said that they sat there for about two hours; that appellant came out and got the car seat out of the Jeep and put it in her car; that "all three" (Camp, appellant, and Gage) came out about five minutes later; and that he took pictures and left. He denied that anybody threatened to kill her. He said that the following week a game warden showed up at his parents' house and questioned him about killing turkeys and deer illegally. He said that he had only killed one turkey but that acknowledged he did so illegally. He stated his belief that appellant had done "all of this" to harass him; that she had told him she does not get mad, she gets even.

David Camp testified that he is not appellant's boyfriend and that she has never spent the night at his house. Jennifer Osborne, a friend of appellant's, testified that sheaccompanied appellant to David Camp's house on the morning that appellee took pictures, but that she remained inside Camp's house.

Appellant testified that most of the time she prepared the meals and that she, not appellee, fed the children in the morning. She said that he did not clean the house during the marriage. She testified that she works on colors, shapes, and small words with Gage; that he is potty trained; that she is working on teaching him to put on his shoes; that she works on his language skills by correcting him when he says a word wrong; and that to help with his coordination skills, they roll a ball back and forth and see if he can catch it. She said that it is very important to her to keep the children together and to be the custodial parent. She stated that she thinks they need to have a chance to grow up together and that they worship each other.

Both sets of grandparents testified, opining that their own child should be the one to have custody of Gage. Additionally, other friends and family members testified that appellant was a loving mother and that she should have custody.

Following our de novo review of the record in this case, we are not left with the definite and firm conviction that a mistake has been committed. We therefore conclude that the trial court's findings were not clearly erroneous.

Affirmed.

Crabtree and Baker, JJ., agree.