                                Cite as 2014 Ark. App. 150

                 ARKANSAS COURT OF APPEALS
                                      DIVISION III
                                      No. CV-13-475


                                                 Opinion Delivered   February 26, 2014
CHARLES SMITH
                               APPELLANT         APPEAL FROM THE WHITE
                                                 COUNTY CIRCUIT COURT
V.                                               [NO. DR-11-999]

                                                 HONORABLE CRAIG HANNAH,
CHRISTINA HUDGINS                                JUDGE
                                 APPELLEE
                                                 AFFIRMED



                            KENNETH S. HIXSON, Judge


       Appellant Charles Smith appeals from an order of the White County Circuit Court

entered on February 7, 2013, awarding custody of the parties’ son, D.S., to appellee Christina

Hudgins. Charles raises two arguments on appeal. First, he argues that the trial court erred

in failing to recuse. Charles also contends that the trial court erred in awarding custody to

Christina. We affirm.

       On July 20, 2011, D.S. was born out of wedlock to Charles and Christina. The three

of them lived together in Benton until Christina moved with the child to Searcy in December

2011. On December 9, 2011, Christina filed a petition for paternity and custody. Christina’s

petition was filed by her father, Robert Hudgins, who is an attorney.1 A temporary hearing

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        Charles subsequently filed a motion to disqualify Christina’s father as her counsel on
the basis that Robert was likely to be a material witness in the case. The record shows that
Robert never represented Christina at any hearings, and he signed his last pleading on
January 26, 2012. After that, Christina was exclusively represented by another attorney. An
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was held on December 14, 2011, wherein Charles waived the requirement of a DNA test and

acknowledged paternity. On January 5, 2012, the trial court entered a temporary order

finding Charles to be the father of D.S. and awarding temporary custody to Christina.

Charles was awarded visitation to include most weekends and one hour each Tuesday and

Thursday night. Charles was also ordered to pay child support.

       On August 8, 2012, over Charles’s objection, the trial court entered an order

appointing psychiatrist Charles Spellmann to perform a custody evaluation. Dr. Spellmann

conducted psychological evaluations on each of the parties at separate times, and he observed

them interact with the child. On September 6, 2012, Dr. Spellmann authored a letter stating:

       Based on my evaluations, it is my opinion that the child will be best cared for by
       Christina, as she has family members who are available caretakers when needed.
       Furthermore, the mother is off work during the week and can be a full time mother.
       A child of this age needs “mothering.” He will appreciate “fathering” as he gets older.

       On October 23, 2012, Charles filed a motion asking the trial judge, Craig Hannah, to

recuse, alleging at least the appearance of impropriety. In his motion, Charles alleged that

Christina had told him that she had communicated with Judge Hannah ex parte regarding the

issues in the case. Charles claimed to be in possession of an audio recording corroborating this

allegation. On November 6, 2012, Christina responded to the motion to recuse, denying

having any such conversation with Charles or having any ex parte contact with the judge.

The trial court entered an order denying Charles’s motion to recuse without comment on

November 15, 2012.




order relieving Robert as Christina’s counsel was entered on May 31, 2012.

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       The final custody hearing was held over two days on November 28 and December 14,

2012. At the outset of the November 28 hearing, Charles renewed his motion to recuse.

Charles testified that he was requesting recusal based on communications by Christina stating

that she had talked with the judge after the temporary hearing, and also because of the

apparent relationship between Christina’s family and Judge Hannah’s family.          Charles

proffered pages from Facebook purporting to demonstrate a friendship between the Hudgins

family and the Hannah family, but these documents were ruled inadmissible by the trial court

because they had not been provided in discovery. However, Charles was permitted to testify

as to what he viewed on Facebook, which included Judge Hannah himself being listed as one

of Christina’s younger brother Michael’s “friends,” as well as a comment by Judge Hannah

to a hunting picture posted by Michael. Charles also produced documentation that Judge

Hannah had appointed Christina’s father Robert Hudgins as the executor in an unrelated case,

and that the two men were codefendants in a federal lawsuit that was later dismissed. In

addition, Charles introduced emails from Christina purporting to show a relationship between

her family and Judge Hannah’s family. In particular, in response to an email from Charles

accusing Christina’s father of using his friendship with the judge to get his way, Christina

responded, “he’s not using his friendship,” thereby implying that a friendship existed. In

another email, Charles stated that he thought Christina’s brother was friends with Judge

Hannah’s children, and Christina responded that “we aren’t doing anything with that family

right now.”




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       Christina contradicted Charles and testified that she had not had any communications

with Judge Hannah since the case began. Christina further testified that there is no friendship

between her father and Judge Hannah, nor is there a friendship between her family and the

Hannah family. Christina maintained that she had never socialized with Judge Hannah or his

family. The trial court orally denied Charles’s motion to recuse, again without comment, and

the custody hearing moved forward.

       Christina testified that she and D.S. live in a house in Searcy with her parents and

younger brother Michael, who is twenty years old. Christina stated that she cares for D.S.

every day, bathing and feeding him, and she described D.S. as a very happy baby. Christina

stated that while she and Charles were together, she was D.S.’s primary caregiver.

       Christina testified that she is currently employed at a nursing home in Searcy. Her

hours are from 11:00 p.m. to 7:00 a.m. four or five nights per week, and she said that her

mother takes care of D.S. while she is at work.

       Christina stated that throughout their relationship Charles had been threatening and

physically abusive toward her, and that he beat her both before and during her pregnancy.

Christina acknowledged that she and Charles signed an agreement when D.S. was one month

old, stating that Charles would have custody of the child. However, she maintained that

Charles threatened her with a gun and forced her to sign that agreement against her will.

Christina testified that Charles continues to harass her during the visitation exchanges. She

also said that when she gets D.S. back from visitation he has wet diapers with dried feces,

smells of cigarette smoke, and is hungry.


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       Christina’s father, Robert Hudgins, testified that he attends the visitation exchanges

and that Charles videotapes every exchange and does everything possible to make things

difficult. On one weekday visitation in March 2012, D.S. had some marks on his head and

Charles called the police. Charles refused to give the baby back to Christina until after the

police arrived, and the parties had a brief physical confrontation as Christina tried to retrieve

the child from Charles. Christina was charged with assault, but the charge was later dropped.

A subsequent DHS investigation found no evidence of abuse.

       Robert testified that D.S. is very happy and healthy. He said that Christina is an

excellent mother and that she raises the child, while other family members are there to help.

Robert stated that, prior to the day of the final hearing, they had never needed an outside

babysitter for D.S. Robert testified that Christina was eventually planning on moving to

another house, but that he loved having her and D.S. at his house and that they were

welcome to live there as long as they wanted.

       Charles testified that he currently lives in Little Rock and is employed full-time by the

Arkansas Army National Guard. Charles works five days a week and occasionally has drill on

the weekend. Charles testified that his mother is deceased and his father lives in Texas.

Charles stated that he has brothers who live out of state, but he also has a sister living in

Sherwood who would be available to help care for D.S. if he were awarded custody. Charles

said that he wanted more contact between D.S. and his family.

       Charles denied that he ever physically harmed Christina. He acknowledged that there

had been violence in their relationship, but he maintained that it was Christina who had


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assaulted him. Charles stated that he was asking for custody because he did not believe

Christina showed natural maternal instincts or could provide an appropriate home.

       Charles testified that he spends every minute he can with D.S., and he said that D.S.

“is my world.” Charles indicated that he primarily took care of D.S. for the first few months

of his life, and stated that he does everything he can do to create a great home and loving

atmosphere for the child. Charles also presented the testimony of other witnesses who

described him as a great father.

       On February 7, 2013, the trial court entered an order establishing paternity, custody,

visitation, and child support. The trial court awarded custody of D.S. to Christina, and also

ruled that, due to the young age of the child, Charles should be awarded more frequent

visitation than would be standard. The trial court awarded visitation to Charles to include

every other weekend as well as overnight visitation every Tuesday night until D.S. begins

school, at which time Charles will get D.S. on Tuesday evenings until 7:00 p.m. The trial

court also ordered Charles to pay child support.

       In this appeal, Charles first argues that Judge Hannah should have recused, and that he

erred in refusing to do so. He claims that the bias in this case was based upon the relationship

between Judge Hannah, appellee’s father Robert Hudgins, and the friendship between their

respective families.

       In support of his argument, Charles raises multiple issues that allegedly put Judge

Hannah’s impartiality into question. These include the trial court’s denial of appellant’s

motion to dismiss for improper venue at the outset of the litigation; the alleged ex parte


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communications between the judge and Christina; the emails from Christina ostensibly

indicating some relationship between her family and the judge’s family; the Facebook pages

demonstrating “friends”; the fact that the judge had appointed Robert Hudgins executor in

an unrelated case; the fact that the two men were among the codefendants in a federal lawsuit

arising from the events in that case; the fact that Robert Hudgins initially represented

Christina in this matter; the judge’s appointment of Dr. Spellmann, who had previously

received client referrals from Robert Hudgins, to perform a custody evaluation; and the trial

court’s modification of the temporary visitation schedule over appellant’s objection. Charles

contends that the appearance of impropriety permeated this case from the beginning, that the

above instances demonstrate bias and prejudice, and that Judge Hannah should have recused

sua sponte.

       Rule 2.11 of the Arkansas Code of Judicial Conduct provides that a judge shall

disqualify himself in any proceeding in which the judge’s impartiality might be reasonably

questioned, including when the judge has a personal bias or prejudice concerning a party or

a party’s lawyer. A trial judge is presumed to be impartial, and a party seeking disqualification

bears a substantial burden to prove otherwise. Deere v. State, 59 Ark. App. 174, 954 S.W.2d

943 (1997). A trial court’s decision to recuse is within his or her discretion, and we will not

reverse absent a showing of an abuse of discretion. Carmical v. McAfee, 68 Ark. App. 313, 7

S.W.3d 350 (1999). An abuse of discretion can be proved by a showing of bias or prejudice

on the part of the trial judge. Id. Absent some objective demonstration by the appellant of

the trial judge’s prejudice, it is the communication of bias by the trial judge that will cause us


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to reverse his or her refusal to recuse. Id. The mere fact of adverse rulings is not enough to

demonstrate bias. Id.

       On this record, we hold that Charles failed to meet his burden of demonstrating bias

on the part of the trial judge. The trial judge’s denial of appellant’s motion to dismiss was

based on testimony that Christina and D.S. lived in White County and thus that venue was

proper, and the fact that the judge ruled against Charles on that issue was insufficient to

demonstrate prejudice. The only allegation raised in Charles’s written motion to recuse was

ex parte communications between Christina and the judge, but Christina denied any such

communications and the original CD recording submitted by Charles in support of that

allegation was unintelligible. Charles claimed to have an altered recording enhanced by a

sound engineer to reduce background noise, but the only copy of the enhanced recording was

on Charles’s counsel’s cell phone, which counsel refused to offer as an exhibit. Moreover, the

engineer did not testify and the enhanced recording was not authenticated, nor did appellant

produce a transcript of the enhanced recording. Hence, the record is void of any intelligible

ex parte communication. Although Facebook pages were proffered giving some indication

of an acquaintance between the Hannah and Hudgins families, Christina testified that the

families did not socialize and that her father was not friends with the judge. None of the

instances identified by the appellant, taken individually or collectively, required recusal in this

case. Given the presumption of Judge Hannah’s impartiality and the absence of objective

proof that he was biased or prejudiced, we conclude that the trial court did not abuse its

discretion in refusing to recuse.


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       Charles next argues that the trial court erred in awarding custody of D.S. to Christina.

We, however, do not agree.

       Arkansas Code Annotated section 9-10-113(a) (Repl. 2009) provides that an

illegitimate child shall be in the custody of its mother unless a court of competent jurisdiction

enters an order placing the child in the custody of another party. Brimberry v. Gordon, 2013

Ark. App. 473. Section 9-10-113(b) provides that a biological father may petition the court

for custody if he has established paternity in a court of competent jurisdiction. Id. Custody

may be awarded to a biological father upon a showing that (1) he is a fit parent to raise the

child; (2) he has assumed his responsibilities toward the child by providing care, supervision,

protection, and financial support for the child; and (3) it is in the best interest of the child to

award custody to the biological father. Ark. Code Ann. § 9-10-113(c).

       In reviewing child custody cases, we consider the evidence de novo, but will not

reverse a circuit court’s findings unless they are clearly erroneous or clearly against the

preponderance of the evidence. Preston v. Preston, 2014 Ark. App. 58. We give due deference

to the superior position of the circuit court to view and judge the credibility of the witnesses.

Id. This deference to the circuit court is even greater in cases involving child custody, as a

heavier burden is placed on the circuit court to utilize to the fullest extent its powers of

perception in evaluating the witnesses, their testimony, and the best interest of the child. Id.

       Charles correctly asserts that he is a fit parent and has assumed responsibilities toward

his child. The issue, then, was what was in the best interest of the child. Charles asserts that

he showed that it was in D.S.’s best interest to be placed in his custody. Charles relies on


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testimony putting Christina’s mental stability at issue, as well as Christina’s testimony that she

would allow Charles no visitation beyond that ordered by the court. Charles also takes issue

with the custody evaluation of Dr. Spellmann, and in particular Dr. Spellmann’s opinion that

due to D.S.’s young age he needed mothering more than fathering. Charles cites Riddle v.

Riddle, 28 Ark. App. 344, 775 S.W.2d 513 (1989), where we stated that the “tender years”

doctrine, whereby a court presumes the mother to be a more suitable custodian of a child of

tender years, has been abolished and that custody should be awarded solely in accordance with

the best interest of the child without any gender-based preference.

       We hold that the trial court did not err in awarding custody to Christina. There was

evidence that Christina had been the primary caregiver during D.S.’s life and was able to

provide a suitable home with help from family members to care for him. Although the

relationship between the parties is acrimonious and Christina is not willing to allow any

visitation beyond that ordered by the trial court, the testimony showed that Christina did

comply with the court-ordered visitation schedule. And in the order being appealed Charles

has been afforded liberal visitation with his child. Although Dr. Spellmann thought that D.S.

needed mothering more than fathering, the trial court made no such finding. In both its

ruling from the bench and in its written order, the trial court made its custody determination

in part based on its finding that Christina had been the primary caretaker, which is a valid

consideration in deciding custody. See Overstreet v. Overstreet, 2013 Ark. App. 710, ___

S.W.3d ___. On our de novo review of this record, we conclude that the trial court’s




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findings as to the best interest of the child and its award of custody to Christina were not

clearly erroneous or clearly against the preponderance of the evidence.

       Affirmed.

       GLADWIN, C.J., and VAUGHT, J., agree.

       Miller Miller Churchwell P.L.L.C., by: Joseph Churchwell, for appellant.

       Robert M. Abney, P.A., by Robert M. Abney, for appellee.




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