ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

DIVISION I

CA02-52

November 6, 2002

JEFF HURLEY AN APPEAL FROM FAULKNER

APPELLANT COUNTY CIRCUIT COURT

[E00-899]

V. HON. CHARLES E. CLAWSON, JR.,

JUDGE

SHANNON HURLEY

APPELLEE AFFIRMED

Jeff Hurley appeals from an order of the Circuit Court of Faulkner County awarding custody of the parties' minor child to appellee, Shannon Hurley. Appellant raises four points of appeal. We affirm.

I. Factual and Procedural History

On September 25, 2000, appellant filed a complaint for divorce requesting joint custody and primary physical custody of the parties' two-year old son. Appellee filed a counterclaim for divorce seeking sole custody of the parties' minor child, with reasonable visitation to appellant. A hearing was scheduled for October 24, 2000.

On October 6, 2000, appellee filed a petition for an ex parte temporary order of custody, which was granted. Subsequently, appellant filed a motion to modify the ex parte order arguing that he did not have an opportunity to be heard, that the parties had agreed to split the time with the child equally, and that there had not been any allegation or finding made that either party was an unfit parent; so both parties were entitled to equal visitation. On October 10, 2000, a hearing was held on appellant's motion, after which the court issued an order awarding joint legal custody and alternate physical custody.

Following the October 24, 2000 hearing, the court issued a temporary order of custody on November 8, 2000, finding both parties fit and proper persons to have custody and/or visitation, but awarding appellee temporary custody of the child. This temporary order was subsequently amended, but custody of the child remained with appellee.

On May 3, 2001, appellant filed a motion requesting that the issue of custody be submitted for mediation. Appellee responded that she did not believe mediation would be beneficial given the alienation between the parties at the time. Mediation was denied.

The divorce hearing was held on August 8, 2001. Following the hearing, the trial court issued a letter opinion awarding the parties joint custody but making appellee the primary physical custodian of the child. The divorce decree, which incorporated the court's previous findings and conclusions as to custody, was entered on September 18, 2001. Appellant appeals the award of custody as set forth in the divorce decree.

II. Best Interest of the Child Standard

For his first point on appeal, appellant argues that the court did not apply the bestinterest of the child standard and that the court's findings of fact were against the preponderance of the evidence. Appellant's argument is without merit.

In determining custody, the court's primary consideration is the welfare and best interest of the child, and other considerations are secondary. Eaton v. Dixon, 69 Ark. App. 9, 9 S.W.3d 535 (2000). The factors that a court may consider in determining what is in the best interest of a child include the psychological relationship between the parents and the child, the need for stability and continuity in the child's relationship with parents and siblings, the past conduct of the parents toward the child, and the reasonable preference of a child. Rector v. Rector, 58 Ark. App. 132, 947 S.W.2d 389 (1997). The appellate court gives special deference to the trial court's position to evaluate what is in the best interest of the child. Id. However, if the court erroneously applied the law and appellant suffered prejudice as a result, the appellate court will reverse the trial court's erroneous ruling on the legal issue. City of Lowell v. M & N Mobile Home Park, Inc., 323 Ark. 332, 916 S.W.2d 95 (1996); Oliver v. Oliver, 70 Ark. App. 403, 19 S.W.3d 630 (2000).

In support of his argument, appellant contends that the trial court never referred to the best interest of the child in his letter opinion, the divorce decree, or his statements from the bench. Appellant asserts that the trial court's statements made in his letter opinion that the child had respiratory problems, that appellee had been more involved in the day-to-day care of these problems, and that appellee seemed more able to provide this care, indicated that the trial court applied the primary caretaker standard in determining custody, instead of the best interest of the child standard.

Although appellant is correct in stating that the trial court did not make any specific reference to the best interest of the child standard, it seems clear from the other statements made by the trial court in his letter opinion that he considered such appropriate factors as parental fitness, the parties' child rearing practices, and the parties' conduct in front of the child in first determining which party should receive custody of the child. However, after having considered such factors, the trial court found neither party more fit or proper than the other to have custody and thus, awarded the parties joint custody of the child. Thereafter, the trial court looked to such secondary factors as the child's health and which party had more involvement with the child's medical care. The trial court determined that appellee had been more involved on a day-to-day basis in taking care of the child's respiratory problems than had appellant. It was not error for the trial court to give weight to this fact and thereby award primary physical custody to appellee. See Milum v. Milum, 49 Ark. App. 3, 894 S.W.2d 611 (1995).

Furthermore, there is no indication that appellant requested specific findings of fact as to the best interest of the child, or that he obtained a ruling on whether the trial court did in fact apply the best interest of the child standard as appellant could have pursuant to Rule 52 of the Arkansas Rules of Civil Procedure. Appellant's failure to request specific findings of fact amounted to a waiver of this issue on appeal, and the appellate court will assume that the trial court correctly applied the law. Smith v. Quality Ford, Inc., 324 Ark. 272, 920 S.W.2d 497 (1996).

Appellant also argues that there was no evidence presented for the trial court to findthat the child had special medical needs and that appellee was more capable of attending to those needs. Appellee testified that the parties' child had Respiratory Air Disease, that the child had had pneumonia three to four times since he was born, that he had had three ear tube surgeries, and that the child regularly used Claritin, Singular, and a tylated inhaler to prevent attacks. None of appellee's testimony was disputed by appellant. Appellee further stated that when the child got sick, she was the one to take him to the doctor, and that appellant had never been to a doctor's visit.

Contrary to what appellant claims, the trial court made no finding that the child's respiratory problems were of such an extraordinary nature that only appellee was capable of taking care of the child. What the trial court did determine was that the child had respiratory problems and that appellee was "much more involved in the day to day care of these problems" than appellant had been when the parties were married. The appellate court will affirm the factual findings of the trial court unless they are clearly erroneous. Helms. v. Helms, 317 Ark. 143, 875 S.W.2d 849 (1994). We hold that the trial court's findings were not clearly erroneous.

IV. Application of the Best Interest of the Child Standard

On his second point of appeal, appellant argues that if the trial court had applied the best interest of the child standard, he would have received custody of the parties' minor child.

While the appellate court reviews circuit court cases de novo, it will reverse only if the trial court's findings are clearly against the preponderance of the evidence or clearlyerroneous. Larson v. Larson, 50 Ark. App. 158, 902 S.W.2d 254 (1995). 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). However, this court has often recognized that there is no case in which greater deference should be given to the trial court's position, ability, and opportunity to see and evaluate the evidence than those involving the welfare and best interest of minor children. Hickman v. Culberson, 78 Ark. App. 96, 78 S.W.3d 738 (2002).

Appellant argues that it was in the child's best interest for him to have primary physical custody by claiming appellee had demonstrated a history of poor judgment, had tried to alienate the child from appellant and his family, had problems disciplining the child, had admitted past drug use, had never lived on her own before, and had switched jobs several times.

The trial court found that both parties, although not without flaws, were fit and proper people to have custody. Even appellant's witnesses testified that appellee was a good mother. The trial court further found that the parties' child had respiratory problems and that appellee had been more involved in the health problems of the child than had appellant. Thus, the trial court determined appellee should have physical custody because she would be better able to provide the supervision needed by the child. Giving deference to the trial court's superior position to evaluate the credibility of the witnesses and the evidence, this court cannot say that he was clearly erroneous or that his findings were against the preponderance of the evidence.

V. Ex parte Custody Order

Appellant's third point of appeal is that the court erred in issuing an ex parte order granting custody of the parties' child to appellee and in failing to award appellant attorney fees. Specifically, appellant contends that there was no proof of irreparable harm or damage, in accordance with Rule 65 of the Arkansas Rules of Civil Procedure, to justify the trial court's issuance of the ex parte order. Thus, appellant contends that he should not have had to pay the attorney's costs involved in responding to and seeking to amend the ex parte order. Appellant's argument is moot and without merit.

On October 6, 2000, appellee filed a petition for an ex parte temporary order of custody and supporting affidavit. In her affidavit, appellee alleged that appellant had picked the parties' child up from daycare on October 4, 2000, a day not agreed to by the parties; that when she first tried to contact appellant by phone, she never got a response; that when appellant finally contacted her that evening, he stated that he would not bring the child back to her because the child was already at home, and that if appellee planned to pick the child up from daycare the next day, he would not take the child to daycare.

The issue of the ex parte order is moot, as appellant concedes, because after the trial court issued the ex parte order on October 6, 2000, a hearing was held and a temporary order of custody was issued on October 10, 2000, granting appellant his requested relief of joint legal custody of the child with equal visitation. Appellant contends, however, that the appellate court should address the issue, despite the fact that it is moot, because ex parte orders in custody disputes are capable of repetition, yet may evade review.

Mootness may not determine whether we review a case that involves the public interest, or tends to become moot before litigation can run its course, or in which a decision might avert future litigation. Mastin v. Mastin, 316 Ark. 327, 871 S.W.2d 585 (1994); Campbell v. State, 300 Ark. 570, 781 S.W.2d 14 (1989). However, when mootness is the result of the complaining litigant receiving the relief requested from the trial court, the appellate court is not inclined to review the matter. Bynum v. Savage, 312 Ark. 137, 847 S.W.2d 705 (1993).

In regard to appellant's argument that the trial court erred in not awarding appellant attorney's fees, this court has held that trial courts have the inherent power to award attorney's fees in a domestic relations proceeding, Miller v. Miller, 70 Ark. App. 64, 14 S.W.3d 903 (2000), and that such an award of fees lies within the sound discretion of the trial court. Winans v. Winans, 55 Ark. App. 272, 934 S.W.2d 546 (1996). In the absence of a clear abuse of discretion, we will not disturb the trial court's decision on appeal. Seamans v. Seamans, 73 Ark. App. 27, 37 S.W.3d 693 (2001). Based on the allegations made in appellee's petition for ex parte relief and supporting affidavit, this court cannot hold that the trial court abused his discretion in denying appellant's request for attorney's fees.

VI. Judicial Bias

For his last point of appeal, appellant contends that the court exhibited bias toward appellee, which tainted the proceedings; thus, the trial court should be reversed.

Judges must refrain from presiding over cases in which they might be interested and must avoid all appearance of bias. Reel v. State, 318 Ark. 565, 886 S.W.2d 615 (1994). Whether a judge has become biased to the point that he or she should disqualify is a matter to be confined to the conscience of the judge because bias is a subjective matter within the knowledge of the judge. Wakefield v. Wakefield, 64 Ark. App. 147, 984 S.W.2d 32 (1998). Judges are presumed impartial, and the party seeking disqualification bears the burden of proving otherwise. Arkansas Dep't of Human Servs. v. R.P., 333 Ark. 516, 970 S.W.2d 225 (1998). To decide whether there was an abuse of discretion, the appellate court reviews the record to determine if any prejudice or bias was exhibited. Black v. Van Steenwyk, 333 Ark. 629, 970 S.W.2d 280 (1998).

Appellant claims that the large amount of evidentiary rulings in appellee's favor had a "cumulativeness effect" on the final determination of custody and showed the trial court's favoritism or bias toward appellee. Appellant took issue with the trial court granting appellee ex parte relief; awarding appellee temporary custody of the parties' child and signing the temporary order prepared by appellee's attorney without his attorney's signature; denying appellant's request for mediation of the custody issue; and allegedly assisting appellee with evidentiary matters at trial.

However, at trial, appellant failed to raise any issue of judicial bias or cumulative effect upon which the trial court would have had an opportunity to rule. Appellant never asked the trial court to recuse nor did he object to any of the trial court's comments that he now contends exhibited bias. Most noteworthy is the fact that the trial court directly asked appellant's counsel if she was asking him to recuse and she replied, "No, your Honor, not whatsoever." Absent an objection below, the issue of bias may not be raised for the first timeon appeal. Nichols v. State, 69 Ark. App. 212, 11 S.W.3d 19 (2000). However, had appellant preserved the issue of judicial bias for appellate review, these allegations of bias would not have warranted the trial court's recusal.

Affirmed.

Hart and Jennings, JJ., agree.