                               Cite as 2016 Ark. App. 363


                 ARKANSAS COURT OF APPEALS
                                      DIVISION II
                                     No. CV-15-879



                                                Opinion Delivered   August 31, 2016

   LINDSEY GIBSON                       APPEAL FROM THE BOONE
                              APPELLANT COUNTY CIRCUIT COURT
                                        [NO. 05-DR-10-165]
   V.
                                                HONORABLE SHAWN A.
   MORGAN KEENER                                WOMACK, JUDGE
                                APPELLEE
                                                AFFIRMED


                          BRANDON J. HARRISON, Judge

        This case started as a paternity action initiated by the Office of Child Support

Enforcement (OCSE). Lindsey Gibson and Morgan Keener are the mother and father of

seven-year-old K.K. An agreed order entered in August 2010 established Keener as K.K.’s

father, granted OCSE a judgment for retroactive child support, established Keener’s support

obligations, and recognized that Gibson, as K.K.’s birth mother, had sole legal custody of

K.K. pursuant to Arkansas Code Annotated section 9-10-113. A November 2010 order

established Keener’s visitation rights. When these orders were entered, K.K. was only a

year old; Keener and Gibson were not married and had never lived together.

        Shortly thereafter in 2011, Gibson and K.K. moved into Keener’s home and lived

together as a family unit. In February 2012, an agreed order was entered abating Keener’s

obligation to pay child support. In June 2014, Gibson and K.K. moved out of Keener’s

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home, and the parties abided by the visitation schedule contained in the circuit court’s

November 2010 order. That order gave Keener visitation every other weekend.

       The latest round of litigation resulting in this appeal started in July 2014 when OCSE

filed a motion to set child support because (1) Gibson and Keener were no longer cohabiting

and (2) Keener was no longer providing support for K.K. In August 2014, Keener filed a

cross-claim against Gibson, alleging that circumstances had changed because he established

a relationship with K.K. by residing in the same home for the past three years, that he had

supported K.K., and that it was in K.K.’s best interest for Keener to be granted joint custody.

       Gibson appeals the circuit court’s decision to give Keener joint custody of K.K. and

to increase his visitation time. We affirm.

                                              I.

       This court performs a de novo review of child-custody matters, but we will not

reverse the circuit court’s findings unless they are clearly erroneous. Taylor v. Taylor, 353

Ark. 69, 110 S.W.3d 731 (2003). A finding is clearly erroneous when, although there is

evidence to support it, the reviewing court is left with the definite and firm conviction that

a mistake has been made. Smith v. Parker, 67 Ark. App. 221, 998 S.W.2d 1 (1999). We

recognize and give special deference to the superior position of the circuit court to evaluate

the witnesses, their testimony, and the child’s best interest. Sharp v. Keeler, 99 Ark. App.

42, 256 S.W.3d 528 (2007).

       Arkansas Code Annotated section 9-10-113 sets forth the law regarding custody of a

child born out of wedlock:

        (a) When a child is born to an unmarried woman, legal custody of that child
       shall be in the woman giving birth to the child until the child reaches the age
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       of eighteen (18) years unless a court of competent jurisdiction enters an order
       placing the child in the custody of another party.

       (b) A biological father, provided he has established paternity in a court of
       competent jurisdiction, may petition the circuit court in the county where
       the child resides for custody of the child.

       (c) The court may award custody to the 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(a)–(c) (Repl. 2015).

       In Norwood v. Robinson, 315 Ark. 255, 866 S.W.2d 398 (1993), our supreme court

held that a permanent order establishing paternity and awarding visitation rights to a father

was an implicit custody award in the mother. In other words, an award of visitation to the

father was tantamount to a finding that he was not entitled to custody and that the custody

of the child should be with the mother—by order, not statute. Harmon v. Wells, 98 Ark.

App. 355, 358, 255 S.W.3d 501, 503 (2007). Therefore, the father was prohibited from

gaining custody of the child absent a showing of changed circumstances. Id. This means

that a noncustodial parent seeking a custody change must prove that a material change in

circumstances has occurred and that a change in custody is in the best interest of the child.

See Donato v. Walker, 2010 Ark. App. 566, at 5, 377 S.W.3d 437, 440.




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                                              II.

       For her first argument on appeal, Gibson contends that the circuit court’s custody

ruling was predicated on “an inapplicable statute dealing with initial custody awards in

divorce actions.” Ark. Code Ann. § 9-13-101(a)(1)(A)(iii) states, “In an action for divorce, an

award of joint custody is favored in Arkansas.” (Emphasis added.) The circuit judge in this

case stated in his oral ruling that

              I want to make one other observation. One other factor that weighed
       into my decision was the statute that was changed by the legislature last year
       deals with joint custody. This addresses joint custody, the statute that creates,
       and I’m a fan of joint custody, equal time where it is workable, reasonable
       and appropriate. The statute that creates the new law on that is specifically
       contemplated in the event of divorce where the couple was married.

               I think where there was a family unit that included a marriage, you get
       the benefit of some of those extra things that you all just do. So one of the
       reasons, not the only reason, but one of the reasons we are not getting all the
       way up to 7 and 7 out of those 14 nights is that this is not a situation where
       this child is coming out of the marital home. This is a paternity situation.
       There was no relationship. There was a stair-step relationship. There was
       cohabitation and then there was a breakup and that’s different. Even though
       some aspects may be similar, that’s a different environment than a marital
       relationship that the legislature contemplated being a transition as joint
       custody.

       Gibson argues that this statement by the circuit court was clear error. In Ryan v.

White, 2015 Ark. App. 494, 471 S.W.3d 243, we held that while the circuit court did not

err in acknowledging the “favored” status of joint custody under section 9-13-101, it does

not “directly apply” when a father seeks joint custody of a child born out of wedlock. In

Ryan we wrote,

       We acknowledge that the “favored” status of joint custody specifically applies
       in divorce cases rather than custody cases involving children born to
       unmarried parents but note that section 9-10-109 expressly provides that,

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       once paternity has been established, the court is ordered to follow “the same
       guidelines, procedures, and requirements . . . as if it were a case involving a
       child born of a marriage in awarding custody [and] visitation. . . .” Ark. Code
       Ann. § 9-10-109 . . . Once paternity is established, the presumption of
       awarding custody to the mother is erased, and the biological father is afforded
       the same right to establish a parental and custodial relationship with the child
       to which a married parent is entitled.

Ryan, 2015 Ark. App. 494, at 8, 471 S.W.3d at 248. Like the court in Ryan, the circuit

court here did not err in acknowledging the favored status joint custody receives under

section 9-13-101. We therefore affirm on this point.

                                             III.

       Gibson next argues that the circuit court erred in finding a material change in

circumstances and the joint-custody award was reversible error because “cooperation

between [her] and Keener was lacking.”         As we mentioned earlier, the circuit court

convened a hearing on Keener’s change-of-custody request in May 2015. The parties and

various witnesses testified about Gibson and Keener’s relationship and the parties’ individual

parenting styles.

       During the hearing, Keener testified that K.K. lived in his house for almost four years

and that they had developed a close bond. He bathed, fed, and put K.K. to bed and took

him hunting and bowling. According to Keener, Gibson did not maintain a regular bedtime

schedule for K.K. and failed to address several cavities in K.K.’s mouth even after K.K. had

complained about his teeth hurting. Keener’s father Lynn, a dentist, testified that K.K. has

an excessive number of cavities and needs to take sodium fluoride tablets. According to

Margie (Keener’s mother), Keener did everything for K.K. when he and Gibson lived




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together.   Keener also indicated that he and Gibson “have had a problem with

communication” but that he was able to communicate with Gibson on the phone.

       Keener explained that he wanted joint custody, in part, because K.K. can’t develop

a close relationship with Keener’s parents on a standard visitation schedule. Keener has a

“close-knit” family. Keener has a teaching job close by, but if he is not available, his mother

can help pick up K.K. from school.

       For her part, Gibson produced evidence that Keener never voluntarily paid child

support after K.K. was born, nor did he contact or visit K.K. until OCSE initiated a child-

support action. Once Keener and Gibson moved in together, Gibson still did almost all the

caretaking of K.K. Keener was gone often on the weekends hunting and fishing and would

leave K.K. with Gibson. Keener’s “noncommunication” and “hateful” speech made for an

unhappy relationship, according to Gibson.

       Gibson presented evidence of Keener’s alcohol use.          Keener had prior DWIs.

According to Gibson, Keener drank every night and frequently went out drinking with

friends. Gibson’s friend viewed Keener’s frequent drinking as a problem and testified about

it. Gibson’s mother testified that Keener was “intoxicated every time he was at my home”

and that she saw him “very, very, very, very drunk many times with K.K. around.” Keener,

for his part, admitted drinking “four or five beers every night,” but denied that it caused

him any problems. According to Keener, Gibson drank sometimes, too.

       Gibson also testified that Keener allowed his father to perform dental work on K.K.,

without telling Gibson. K.K.’s gum was raw and swollen. Gibson also expressed her

frustration that Keener never attended any of K.K.’s soccer games. The breaking point for

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their relationship, according to Gibson, was when Keener didn’t want to have a birthday

party for K.K.

       At the conclusion of the hearing, the court found that a material change in

circumstances existed and granted Keener’s request “for joint legal custody.” The court

then stated that it would “deny the request for joint physical custody to the extent that it

would provide for an equal division of time[.]” The court set Thursday to Tuesday as the

“default” schedule, expanding Keener’s time with K.K. from 2 of 14 nights to 5 of 14 nights.

Summer visitation was changed to alternating two-week periods with each parent. After

fielding a few follow-up questions, the court said:

              And, let me, this is not part of the order, so this is just kind of one of
       the many factors that went into my decision-making process. Where we have
       two reasonable parents that both do well with their children, it is important
       to have as much contact as reasonable or practical so that those relationships
       can be maintained and expanded on both sides.

               One thing we do not get, and this is actually something that your client
       [Gibson] complained about, was that he gets all the fun time on the weekends
       and when all we have is Friday to Sunday every other weekend, so one thing
       we do not get is the non-custodial parent participating in the responsibility of
       getting the child to bed on time, getting the child up on time, getting the
       child to school on time, taking backpacks, doing homework, that’s part of my
       rationale for including the school months in there as I did.

       On May 21, before the court’s written order was entered, Gibson filed a motion

under Arkansas Rule of Civil Procedure 52, requesting that the court make certain written

findings and asked the court to consider changing visitation for Keener from Thursday

afternoon until the following Monday afternoon (instead of Tuesday morning). Among

other things, Gibson also asked that Keener be held in contempt for “admitting in court




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that he drank alcohol on two occasions in front of the minor child.” No written order

denying or granting Gibson’s motion was entered.

       The appealed custody order, entered on July 9, states,

        The Court finds there has been a change in circumstances since the entry of
       the last Order entered herein sufficient to warrant a modification of the
       custody/visitation provisions . . . . The Petitioner [Keener] and Respondent
       [Gibson] are hereby awarded joint legal custody of their minor child[.]

The circuit court does not identify the factual basis for its conclusion that a material change

had occurred. Where the circuit court fails to make findings of fact about a change in

circumstances, this court, under its de novo review, may nonetheless conclude that there

was sufficient evidence from which the circuit court could have found a change in

circumstances. McNutt v. Yates, 2013 Ark. 427, at 8, 430 S.W.3d 91, 97. Such is the case

here. The July 9 order also does not state that a change in custody is in K.K.’s best interest.

Because there is a presumption that a circuit court made the findings necessary to support

its judgment, we presume that the court considered K.K.’s best interest when awarding joint

custody. See Hoover v. Hoover, 2016 Ark. App. 322, at 8.

       Turning to the record in our de novo review, we conclude that there was a material

change in circumstances sufficient to reopen the issue of child custody. The last order

addressing custody was entered in 2010. It is undisputed that, at the time the 2010 order

was entered, the parties had never lived together and K.K. was only one year old. Shortly

after the entry of the 2010 order, Gibson and K.K. moved into Keener’s home, and the

parties lived together until their separation in June 2014. On the whole, the evidence

demonstrated that Keener’s relationship with young K.K. had blossomed into a parent-child



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relationship that had not yet begun when the last custody order was entered, resulting in a

material change in circumstances.

       Recognizing the superior position of the circuit court to evaluate the witnesses, their

testimony, and the child’s best interest, we are not left with a definite and firm conviction

that the court made a mistake in awarding joint custody. Although there was conflicting

testimony on many issues, including Keener’s alcohol use and how much involvement

Keener had with K.K.’s care, the circuit court ultimately determined that Gibson and

Keener were “two reasonable parents that both do well” with their child. While both

parents candidly admitted that they had trouble communicating with one another at times,

there was also evidence that they were capable of communicating well enough to co-parent

K.K. The parties live relatively close to one another. The court created a sensible visitation

schedule designed to maximize K.K.’s relationship with both his mother and his father. We

therefore see no error and affirm.

       Affirmed.

       GLOVER and VAUGHT, JJ., agree.

       Sexton Law Firm, by: Jane Watson Sexton, for appellant.

       Carney Law Firm, by: Jodi G. Carney, for appellee.




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