ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION II

LORI STUBBS

APPELLANT

v.

DARRELL STUBBS

APPELLEE

CA 02-1276

NOVEMBER 5, 2003

APPEAL FROM THE

INDEPENDENCE COUNTY

CIRCUIT COURT

[NO. DR02-40-4]

HONORABLE DAVID KEITH

RUTLEDGE, JUDGE

AFFIRMED

John B. Robbins, Judge

Appellant Lori S. Stubbs and appellee Darrell Stubbs were divorced by a decree entered by the Independence County Circuit Court on September 4, 2002. The decree awarded custody of the parties' four-year-old daughter Sydney to Mr. Stubbs. Ms. Stubbs now appeals, arguing that the trial court's decision to award custody to Mr. Stubbs was clearly against the preponderance of the evidence.

Mr. Stubbs filed for divorce on January 25, 2002, and a temporary hearing was held on February 22, 2002. Ms. Stubbs testified at the temporary hearing that the parties separated in August 1998, when Sydney was two months old. Ms. Stubbs remained in Independence County for about three months after the separation, and has since moved to the Little Rock area. Mr. Stubbs continues to live in Independence County. During the separation both parties have exercised custody, with Ms. Stubbs having custody more than half of the time.

Ms. Stubbs testified that the longest period Sydney stayed with Mr. Stubbs was two weeks.

Ms. Stubbs testified that Sydney attends Grace Lutheran Pre-K in Little Rock. When she is old enough to go to kindergarten, she would attend Grace Lutheran Kindergarten.

Ms. Stubbs testified that she and Sydney are the only ones living in her home. She stated that she has lived in three different places in central Arkansas and had three different roommates. The most recent roommate was a man named Lee Jefferson, who has lived with Ms. Stubbs since August 2000. Ms. Stubbs maintained that she and Mr. Jefferson had never been sexually involved, that he lived with her only to help financially, and that she asked Mr. Jefferson to leave after Mr. Stubbs filed for divorce.

Mr. Stubbs testified that all of his family lives in Independence County. He stated that Sydney is very close to her paternal grandparents, as well as cousins, aunts, and uncles. Ms. Stubbs' father also lives in Independence County and has a good relationship with Sydney. Ms. Stubbs' mother resides in Magnolia, Arkansas, and Sydney has no extended family in Little Rock.

Mr. Stubbs testified that Ms. Stubbs is a good mother and has done a good job of taking care of Sydney. However, he stated that he is concerned about the fact that Sydney had been living in the same house with Mr. Jefferson, and stated that in a telephone conversation Sydney asked him whether he was her real dad or her step-dad.

At the conclusion of the temporary hearing, the trial court entered an order awarding temporary custody to Ms. Stubbs, subject to visitation. The order also provided that Ms. Stubbs shall not expose Sydney to Mr. Jefferson during the pendency of the divorce action.

The trial in this case was held on August 2, 2002, and Ms. Stubbs testified that she continues to live in the Little Rock area. She works as an LPN for Arkansas Pediatric Clinic in Little Rock, and is also in the National Guard.

Ms. Stubbs indicated that she delivers the child to Mr. Stubbs for visitation without any problems. She acknowledged that Mr. Stubbs is a good father, but gave the opinion that Mr. Stubbs relies too much on help from his parents when Sydney comes to visit.

Ms. Stubbs admitted in her testimony at trial that she has been sexually intimate with Mr. Jefferson, and that the sexual relations began before the temporary hearing. Indeed, she acknowledged that she is pregnant with Mr. Jefferson's child, which was due September 11, 2002. However, Ms. Stubbs denied having sex with Mr. Jefferson while Sydney was in the home.

Ms. Stubbs testified that since the February hearing Mr. Jefferson has been to her house a couple of times a week. She stated that she loves Mr. Jefferson and will continue to see him, although they will not live together.

Ms. Stubbs testified that "little girls just need things that sometimes only their mama can give," and "I think every kid needs their mother." She further stated:

I think Darrell is a good dad, but I still think that Sydney needs to be with her mother and I will never think otherwise. It's from my raising. I think every mother would feel that way, everybody.

Mr. Stubbs testified that he is buying a four-bedroom home and will live there with his brother. He stated that he is employed as a foreman for Jamestown Lumber.

Mr. Stubbs indicated that he has two daughters from a previous marriage and that he exercises visitation with them. According to Mr. Stubbs, Sydney is very close with her half-sisters, and they do things together as well as talk on the telephone.

Mr. Stubbs testified that he has an arrangement where his mother can care for Sydney while he is at work. He stated that this can continue until Sydney is enrolled in preschool.

Barbara Harris testified on behalf of Ms. Stubbs. She stated that she is a registered nurse and recommended Ms. Stubbs for employment at the pediatric clinic. Ms. Harris indicated that Ms. Stubbs is one of the best nurses she has worked with, is always happy, and has an excellent relationship with the children she cares for.

Ms. Stubbs argues on appeal that the trial court erred in failing to award her custody of Sydney. She asserts that the trial court's decision was based entirely on her cohabitation with another man during the parties' separation, and submits that this alone should not have disqualified her from being awarded custody.

Ms. Stubbs argues that from the evidence presented, it is in Sydney's best interest to be placed with her. She notes that while Mr. Stubbs has been afforded liberal visitation since their separation, she has been the primary custodian. Ms. Stubbs asserts that she is the only day-to-day caregiver Sydney has ever known, and further asserts that she provides love and safety for her child. Ms. Stubbs maintains that she has virtually supported Sydney financially by herself, and notes that she has carried Sydney on her health insurance. Moreover, even Mr. Stubbs acknowledged in his testimony that she is a good mother. Ms. Stubbs urges this court to reverse the custody determination of the trial court because the decision was impermissibly founded on the trial court's desire to punish her for an extra-marital affair, and did not focus properly on what was in the child's best interest.

In reviewing a trial court's decision regarding child custody, we review the evidence de novo, but we do not reverse the findings of the trial court unless they are clearly against the preponderance of the evidence. See Thompson v. Thompson, 63 Ark. App. 89, 974 S.W.2d 494 (1998). In cases involving child custody great deference is given to the findings of the trial court. Ford v. Ford, 347 Ark. 485, 65 S.W.3d 432 (2002). There is no other case in which the superior position, ability, and opportunity of the trial court to observe the parties carries a greater weight than one involving the custody of minor children. Taylor v. Taylor, 345 Ark. 300, 47 S.W.3d 222 (2001). The best interest of the child is the polestar in every child custody case; all other considerations are secondary. Ford v. Ford, supra.

We hold that the trial court's decision to award Mr. Stubbs custody was not clearly against the preponderance of the evidence. The supreme court and court of appeals have never condoned a parent's promiscuous conduct or lifestyle when such conduct has been in the presence of the child. See Taylor v. Taylor, supra; Ketron v. Ketron, 15 Ark. App. 325, 692 S.W.2d 261 (1985). While Ms. Stubbs suggests her adulterous conduct did not affect the welfare of her child, there was evidence to the contrary. Ms. Stubbs cohabitated and had sexual relations with Mr. Jefferson while Sydney was a member of the household, and there was evidence that Sydney was confused as to who her father was. This was evidenced by even Ms. Stubbs' testimony, where she stated that Sydney once asked her if Mr. Stubbs would always be her dad. Ms. Stubbs testified that Sydney's confusion was natural, and explained:

She asked me that because she's four and she loves Lee and, you know, I'm sure she doesn't have all of the - all of it figured out or all the wisdom of the world and when she - every kid asks that. Every kid. That is a natural reaction from a kid. Every kid asks that.

Without question, Ms. Stubbs' illicit sexual conduct had a negative impact on Sydney's welfare, and this was a proper consideration for the trial court in making its custody decision.

Contrary to Ms. Stubbs' argument, there was also other evidence to support the decision of the trial court. While there was evidence that Ms. Stubbs is a good mother, she testified that Mr. Stubbs is a good father. Moreover, it is undisputed that virtually all of Sydney's extended family lives in Independence County and has close contact with her. When making a custody decision, a proper consideration is support from the child's extended family. See Riley v. Riley, 45 Ark. App. 165, 873 S.W.2d 564 (1994). Finally, there was evidence that Mr. Stubbs has a suitable home and has frequent visitation with Sydney's two half-sisters, with whom Sydney is close.

Upon review of the evidence and the trial court's order awarding custody to Mr. Stubbs, we cannot agree that the decision was premised upon punishing Ms. Stubbs. The trial court properly considered the best interest of the child, and its decision was not clearly against the preponderance of the evidence.

Affirmed.

Gladwin and Bird, JJ., agree.