                                 Cite as 2017 Ark. App. 98


                 ARKANSAS COURT OF APPEALS
                                        DIVISION I
                                       No. CV-15-193



                                                 Opinion Delivered: February   22, 2017
HECTOR HORTELANO
                                APPELLANT
                                                 APPEAL FROM THE PULASKI
                                                 COUNTY CIRCUIT COURT,
V.                                               TWELFTH DIVISION
                                                 [NO. 60DR-10-3555]

LAURA HORTELANO
                                  APPELLEE HONORABLE ALICE S. GRAY,
                                           JUDGE

                                                 AFFIRMED


                          RAYMOND R. ABRAMSON, Judge

        Hector Hortelano appeals the divorce decree from his former wife, Laura Hortelano,

 issued by the Pulaski County Circuit Court. On appeal, Hector argues that the circuit court

 erred in awarding joint legal custody to the parties with Laura being the primary custodial

 parent. We affirm.

        On July 29, 2010, Hector filed a divorce complaint against Laura. He asserted that

 both he and Laura were fit and proper parents and asked the court to award joint custody

 of their children, I.H. and A.H., with him being the primary custodial parent. Laura filed a

 counterclaim for divorce. She also asked for joint custody; however, she requested that she

 be the primary custodial parent. On September 22, 2010, the court entered an agreed

 temporary order granting joint custody with Hector being the primary custodial parent and

 Laura having visitation every other weekend and every Wednesday after school.
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       On March 25, 2011, following a hearing, the court entered a temporary order stating

that “the parties shall have joint custody of the minor children with neither party designated

as the primary custodial parent.” The court ordered the same visitation schedule as contained

in the September 2010 agreed order. The court further noted that “neither party shall have

members of the opposite sex overnight with them when they have children with them

unless they are related or married to that person.”

       On August 19 and August 21, 2014, the court held a final divorce hearing. At the

hearing, Hector testified that Laura left him and the children on July 26, 2010, and that he

then filed for a divorce. He denied kicking Laura out of their home, and when asked

whether he changed the door lock in the days before Laura left, he stated that he changed

the lock because their daughter had broken it. He noted that Laura had an affair with his

brother and that angered him, but he denied kicking her out as result of the affair. He

explained that since Laura left, he had been the primary caregiver of the children and had

transported them to and from school every day. He also stated that he had paid for their

tuition to private school, school supplies, clothes, and karate lessons. When asked whether

I.H., their then eleven-year-old daughter, slept in his bed at night, Hector stated that she

only slept with him when she had nightmares or during bad weather.

       Laura testified that she began having a sexual relationship with Hector when she was

thirteen years old. She stated that when they met, Hector told her that he was seventeen

years old, but she later discovered he was twenty-seven. She explained that when she was

thirteen, she and Hector traveled to Mexico, and they later married there when she was

fourteen. She testified that he had limited her contact with her family while they were in


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Mexico. They returned to the United States in 2005 and remarried for Hector’s immigration

status.

          Laura testified that during the marriage, she was the primary caregiver for the

children and that Hector worked long hours. She further testified that she and Hector fought

frequently over his brother’s living with them. Laura did not like his brother’s living with

them because they had a two-bedroom trailer, and the children had to sleep with her and

Hector. She stated that Hector had kicked her out of the house several times as a result of

the fights. She admitted that she had an affair with Hector’s brother and stated that she told

Hector about it in May 2010. Hector then tried to kick her out, but she refused to leave

the children. She stated that in July 2010, he changed the locks on the trailer and denied

her entry. Laura then lived in her car before moving in with a male coworker. She denied

having a romantic relationship with the coworker but stated that he had raped her, though

she never filed charges. 1 She testified that Hector had control over her financial and personal

records; so she had nothing when he kicked her out. She stated that she tried to give Hector

money to help with the children’s needs but he refused it.

          As to her current living situation, Laura testified that she lives with her boyfriend,

Addias Lopez, in a two-bedroom trailer in Hot Springs and that they have two children

together. She explained that they have lived together since 2011 and that they plan to marry

when her divorce from Hector is final. She testified that Adidas has no criminal history but

he does not have a legal immigration status. She noted that she is not employed but is

enrolled as a full-time student at National Park Community College. She hopes to become


          1
              At a previous hearing, Laura denied that the coworker had raped her.

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a registered nurse. Laura testified that she called child-protective services about I.H. sleeping

in Hector’s bed every night, but the investigation was closed as unsubstantiated.

       Laura’s mother, Maria Alvarez, testified that Hector and Laura began having a sexual

relationship when Laura was thirteen years old and Hector was twenty-seven years old and

that she disapproved of the relationship. She further testified that Hector kidnapped Laura

and took her to Mexico. She explained that she contacted the police, but the police told

her they could do nothing since Laura had left the county. She eventually located a phone

number for Hector and Laura and made contact with them, but Laura refused to return to

the United States until her mother stopped the kidnapping investigation and gave her

permission to marry Hector. She stated that either she or her husband had given them

permission to marry.

       Alvarez testified that when Hector and Laura returned to the United States, Laura

acted as the primary caregiver for the children and that Hector limited her time away from

their house as well as her communication with others. She explained that Hector and Laura

had arguments about Hector’s brother living with them and that Hector had kicked Laura

out of the house on several occasions. As to Laura leaving Hector and the children in July

2010, Alvarez testified that Hector had kicked Laura out of the house. She also testified that

I.H. continues to sleep in Hector’s bed and that concerned her.

       Hector and Laura’s daughter, I.H., then testified that she sleeps with her father and

brother every night. When asked with whom she wanted to live with, I.H. stated that she

did not know.




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         At the conclusion of the hearing, the attorney ad litem recommended that the court

award joint custody with Hector being the primary custodial parent. The court then orally

noted,

                  One of the concerns I have is the comment about the mother moving on
         with her life, because we have had the case going on for four years in this Court, and
         I am not sure what any would have expected for her to do, and you may say she is
         gone and had two children by someone else. But as judge, I personally think what
         he did far outweighs what she has done. A fourteen-year-old or thirteen-year-old,
         out of the country with[out] the parents’ consent, and I have to look at character.
         The kind of person who would do that, and I am having some problems with that
         as it relates to his character overall. To take a child away from [her] parents without
         their consent is basically kidnapping and to take [her] out of the country, and while,
         you may not think it is right, I have seen a lot of people who have children out of
         wedlock these days, and obviously she had two, but I think the fact that taking an
         underage child as young as thirteen, and having sex with them and then moving
         from the country, not just having sex with them, far outweighs her having two
         children.

The court took the custody matter under advisement. Thereafter, the court held a

teleconference stating that it planned to grant joint custody with Laura having primary

physical custody. The court stated that it “considered all of the evidence” and that its ruling

was “not just based on the sleeping arrangement.”

         On November 13, 2014, the court entered a divorce decree. The court found it was

in the best interest of the children for the parties to have joint custody with Laura being the

primary custodial parent. The court awarded Hector visitation every other weekend as well

as visitation at least twice during the week with Wednesday overnight visits. Hector timely

appealed the divorce decree to this court. On appeal, he argues that the court erred in

awarding Laura custody of the children.

         This court reviews child-custody cases de novo and will not reverse a circuit court’s

findings unless they are clearly erroneous. Gibson v. Gibson, 2010 Ark. App. 741. A finding

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is clearly erroneous when the reviewing court, on the entire evidence, is left with a definite

and firm conviction that a mistake has been committed. Id. Because the question of whether

the circuit court’s findings are clearly erroneous turns largely on the credibility of the

witnesses, we give special deference to the superior position of the circuit court to evaluate

the witnesses, their testimony, and the child’s best interest. Id. In fact, there are no cases in

which the superior position, ability, and opportunity of the circuit court to observe the

parties carry as great a weight as those involving minor children. Id.

       The primary consideration in child-custody cases is the welfare and best interest of

the children; all other considerations are secondary. Fox v. Fox, 2015 Ark. App. 367, 465

S.W.3d 18. Although joint custody has been disfavored in Arkansas in the past, Act 1156 of

2013 amended Arkansas Code Annotated section 9-13-101 to state that an award of joint

custody is now favored in divorce proceedings. Id. When in the child’s best interest, custody

should be awarded in such a way as to assure the frequent and continuing contact of the

child with both parents. Ark. Code Ann. § 9-13-101(b)(1)(A)(i) (Repl. 2015). Other factors

that may be considered in determining what is in the best interest of the 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 the child. Rector v. Rector, 58 Ark.

App. 132, 947 S.W.2d 389 (1997). 2


       2
         Throughout his brief, Hector references the custody award in the divorce decree
as a modification of custody from the court’s September 2010 and March 2011 orders and
cites the legal standard for a modification of an initial custody determination. Hector is
mistaken. The prior orders were temporary orders, not initial custody determinations.
Specifically, the September 2010 order states that the parties “agreed on a temporary basis,”

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       Hector argues that the court erred in finding it was in the best interest of the children

to award joint custody with Laura having primary physical custody because of Laura’s

unstable lifestyle and her promiscuous conduct with men. He points out that at the time of

the hearing, Laura did not have a job and lived in a two-bedroom trailer with her boyfriend

and their two children. He further points out that Laura cohabitated with her boyfriend in

violation of the court’s previous orders and that she had lived with another man prior to

that. He claims that the court failed to consider these circumstances and disregarded the fact

that Laura did not call her boyfriend as a witness. 3

       We hold that the circuit court did not clearly err in awarding the parties joint custody

with Laura being the primary custodial parent. Despite Laura’s lifestyle and romantic

relationships, the primary consideration in child-custody cases is the welfare and best interest

of the children. See Moix v. Moix, 2013 Ark. 478, 430 S.W.3d 680 (stating that public-

policy arguments against romantic cohabitation may not override the primary consideration

of what is in the best interest of the children); Carver v. May, 81 Ark. App. 292, 101 S.W.3d

256 (2003) (stating that the fact that a parent has violated court orders is a factor to be taken


and the March 2011 order is titled “Temporary Order.” Further, in the teleconference, the
court specifically stated, “I don’t consider the temporary order[s] to be . . . final order[s].”
Accordingly, we review this appeal as an appeal of an initial custody determination, and
Hector’s arguments concerning Laura’s burden to prove changed circumstances are
irrelevant.
        3
          In a point heading, Hector also asserts that Laura’s “cohabitation and recurrent
promiscuous activities demonstrate that she was not a fit parent.” However, in the text
following that point heading, Hector does not assert that Laura is an unfit parent; he discusses
her cohabitation with her boyfriend and how it relates to the best interest of the children.
Our courts do not consider an argument when the appellant presents no citation to authority
or convincing argument in its support. Baker v. State, 2016 Ark. App. 468. We also note
that in Hector’s divorce complaint, he alleged that both he and Laura were fit and proper
parents.

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into consideration, but it is not so conclusive as to require the court to act contrary to the

best interest of the child). Here, the record showed that Laura had been the primary

caregiver before the parties’ separation and that she left because Hector had kicked her out

of their home. Further, the record showed that Hector and Laura began having sex when

Laura was only thirteen years old and that Hector kidnapped her to Mexico, which the

court found reflected poorly on his character.

       As to Hector’s assertion that the circuit court failed to consider the facts about Laura’s

lifestyle and the absence of her boyfriend from the hearing, the circuit court was not required

to make specific findings on every allegation that each party made against the other, and if

Hector wanted such findings, he could have asked for them pursuant to Arkansas Rule of

Civil Procedure 52. See Black v. Black, 2015 Ark. App. 153, 456 S.W.3d 773. Even so, the

court’s oral statements at the conclusion of the divorce hearing show that the court weighed

the circumstances of both Hector’s and Laura’s home environments, and in the

teleconference following the hearing, the court stated that it had considered all the evidence.

       Hector also asserts that the circuit court improperly discredited his testimony based

on his language barrier. However, Hector fails to show that the court rested its decision on

a finding that he was not credible. Again, the court did not make specific findings of fact,

and the court stated that it had considered all the evidence when making its decision. 4




       4
         Hector cites Vo v. Vo, 78 Ark. App. 134, 79 S.W.3d 288 (2002), for his proposition
that a court cannot discredit a party’s testimony when inconsistencies in the testimony could
be attributed to a language barrier. However, in that case, the court cited the appellant’s
inconsistent testimony as a factor warranting change of custody.

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Accordingly, we are not left with a definite and firm conviction that a mistake has been

made, and we affirm the custody award.

      Affirmed.

      VIRDEN and GLADWIN, JJ., agree.

      Hale & Young, P.L.L.C., by: Milas H. Hale III; and Robert S. Tschiemer, for appellant.

       Morris W. Thompson Law Firm, P.A., by: Morris Thompson; and Brett D. Watson,
Attorney at Law, PLLC, by: Brett D. Watson, for appellee.




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