                                 Cite as 2014 Ark. App. 521

                 ARKANSAS COURT OF APPEALS
                                       DIVISION IV
                                       No. CV-14-124


                                                  Opinion Delivered   OCTOBER 1, 2014

STUART BLAKE DEATON                               APPEAL FROM THE COLUMBIA
                   APPELLANT                      COUNTY CIRCUIT COURT
                                                  [NO. DR-12-306]
V.
                                                  HONORABLE HAMILTON H.
                                                  SINGLETON, JUDGE
ALYSSA MORGAN
                                 APPELLEE         AFFIRMED



                              DAVID M. GLOVER, Judge

       Appellant, Stuart Deaton, and appellee, Alyssa Morgan, are the unmarried parents of

a minor female child, M.D. Stuart appeals from the October 24, 2013 order granting custody

of the child to Alyssa. He contends that the trial court erred 1) in considering evidence

presented by Alyssa for any purpose other than Stuart’s fitness to have custody, and 2) in

placing custody with Alyssa. We affirm.

                                          Background

       On November 9, 2012, when M.D. was approximately four months old, Stuart filed

a motion for ex parte temporary custody. He also filed a petition to establish paternity, which

Alyssa acknowledged. At the December 12, 2012 hearing on Stuart’s motion, Stuart appeared

with his counsel. Alyssa appeared pro se, having never been served but waiving service of

summons on the record. She also acknowledged that she and Stuart had reached a temporary

accord, and she approved a temporary order (which was not actually entered until April 10,
                                 Cite as 2014 Ark. App. 521

2013) by which Stuart would have temporary custody of M.D. and Alyssa would have

supervised visitation. The order provided that this “arrangement shall continue until this

matter is further heard by the Court.” On March 26, 2013, Alyssa’s counsel entered his

appearance. Following a hearing on April 10, 2013, the trial court entered its May 6, 2013

order, which established a visitation schedule for Alyssa, eliminated the requirement that

visitation be supervised, provided that the temporary custody and visitation was without

prejudice, and made clear that a full hearing on the merits would be set by the trial court to

establish what was in the child’s best interest and that an attorney ad litem would be

appointed.

       The full hearing on the merits took place August 2, 2013. The parties and M.D. were

each represented by counsel at the hearing, and posthearing briefs were submitted. By order

entered October 24, 2013, the trial court stated that “[t]his matter came on for hearing Friday,

August 2, 2013, on the issue of the custody of [M.D.],” and determined that it was in the

child’s best interest for custody to be with Alyssa. Stuart was awarded reasonable visitation

and ordered to pay child support and the balance of the appointed ad litem’s fee.

       In this order, the trial court further recounted the unusual procedural history of the

case, noting that it had earlier placed temporary custody with Stuart “without prejudice” to

be followed by a full hearing on the merits. The order then explained in part:

              6. That on the 2nd day of August 2013, a full hearing on the merits was held.
       Petitioner appeared with his new/substituted attorney, Mr. Ronald Griggs.
       Respondent appeared with her attorney, Mr. Lloyd Smith and Ms. Amy Freedman
       appeared on behalf of the minor child, . . . , as the child’s attorney ad litem.



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       After petitioner rested his case in chief he moved to prohibit any witnesses who
may be called by respondent to testify because there had been no pleadings seeking
affirmative relief. This motion was denied by the Court with the comment that
neither party had filed pleadings seeking affirmative relief.

                                      ....

       7. That the Court has reviewed the briefs submitted, its notes from the
hearings and the docket entries. After a careful consideration of all the evidence and
law, the Court agrees with the ad litem’s description of this case as being “strange”
procedurally. In fact, this case is a “train wreck” procedurally.

        As the Court acknowledged following the full hearing on August 2, 2013,
“. . . Court opines there is nothing which supports the Ex Parte Order.” Accordingly,
the Ex Parte Order is set aside and dismissed.

       8. That if the Ex Parte Order is vacated then custody of this child would and
should revert to the biological mother, ACA 9-10-113. However, because of
procedural peculiarities of this case, coupled with the pleading deficiencies, the Court
feels compelled to also address “the best interests” of this child before awarding
custody.

       The respondent mother’s childhood and young adult history is sad and her
experience tragic. As a mid-teen, she elected to place her firstborn for adoption
because it was in her child’s best interest to do so.

       At still a young age, she had her second child, a daughter . . . born during her
marriage to Dayberry. This is the same child that she has continued to raise
throughout the life of this particular lawsuit. And, according to her in-laws with
whom she lives, she has done an outstanding job of raising [the second child].

        The evidence presented prior to the parties’ separation establishes respondent
as the primary care giver of [both children]. Both she and petitioner did some drugs
occasionally, but that conduct is now behind them.

       [The two little girls] need to be reunited as sisters.

        9. That it is the Court’s opinion that it would be in [the minor child’s] best
interest that her custody be restored to her mother, respondent.




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                                        Procedural argument

       For his first point of appeal, Stuart contends that the trial court erred in considering

evidence presented by Alyssa for any purpose other than Stuart’s fitness to have custody. That

is, Stuart takes the position that the sole issue before the trial court should have been his

request that the temporary-custody order be made permanent because Alyssa had filed no

affirmative pleading “asking for any relief other than denying the allegations in the motion for

temporary custody filed by [Stuart].” We disagree.

       Arkansas Code Annotated section 9-10-113 addresses custody of a child born outside

of marriage:

               9-10-113. Custody of child born outside of marriage.

               (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 eighteen (18) years of
       age 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.

              (d) When in the best interest of a child, visitation shall be awarded in a way that
       assures the frequent and continuing contact of the child with the mother and the
       biological father.

(Emphasis added.)


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       The trial court described the procedural history of this case as a “train wreck,” and we

agree. But, even so, it can be fairly said that under the statute quoted above, custody of the

child under the law was with Alyssa until a court of competent jurisdiction placed custody

with another person. Even though the trial court granted temporary custody to Stuart, it was

always clear that final action on the issue of custody was to follow, after a full hearing on the

merits. When everyone gathered for the final hearing on August 2, 2013, it was clear, or

should have been, that permanent custody was the issue to be decided.

       Stuart presented his custody case, but then objected to Alyssa’s being able to move

forward with any evidence of her fitness to have custody of M.D. because she had not filed

an affirmative pleading. In ruling on the objection, the trial court stated:

              Let me put it this way, there is no affirmative pleading period, by anybody.
       There is nothing driving this hearing today. There was nothing driving the hearing
       on April 10th. Everybody forgot to file a pleading. So that motion is overruled. Call
       your first.

In short, neither side filed appropriate pleadings. Nonetheless, custody of M.D. had been

placed with Stuart only temporarily, and it was always clear that a final hearing on that issue

would follow. We find no merit in Stuart’s argument that the state of the pleadings barred

Alyssa from presenting any evidence for any purpose other than to determine his fitness for

custody. Stuart’s reliance upon Arkansas Rules of Civil Procedure 8(a) (pleading claims for

relief), and 15(b) (amendment of pleadings to conform to evidence presented at trial when

issues are tried by express or implied consent), along with cases addressing those rules, is

misplaced under the circumstances of this case and simply not convincing. There are two sides

to a custody coin, and once Stuart put on his “custody” case, Alyssa was entitled to put on

her full “custody” case, which rightly included evidence beyond Stuart’s fitness.


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                                           Custody

       For his second point of appeal, Stuart contends that the trial court clearly erred in

granting custody of M.D. to Alyssa. We disagree.

       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. Smith v. Hudgins, 2014 Ark. App. 150, 433 S.W.3d 265. 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. A finding is clearly erroneous when we are left with a definite

and firm conviction that the trial court made a mistake. Sykes v. Warren, 99 Ark. App. 210,

258 S.W.3d 788 (2007).

       As quoted previously, Arkansas Code Annotated section 9-10-113 provides that a child

born to unmarried parents shall be in the child’s mother’s custody unless a court of competent

jurisdiction enters an order placing the child in the custody of another party. Smith v.

Hudgens, supra. 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. Id.



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       As noted by the trial court, neither party properly pled in this case. Stuart never truly

petitioned the trial court for custody under section 9-10-113. Rather, he sought temporary

custody and then in paragraph 7 of that petition, he included the following sentence:

“Further, it is in the best interest of the parties’ minor child that the plaintiff be granted full

and permanent custody of the parties’ minor child.” As the trial court further noted in its

order following the final hearing in August:

              8. That if the Ex Parte Order is vacated then custody of this child would and
       should revert to the biological mother, ACA 9-10-113. However, because of
       procedural peculiarities of this case, coupled with the pleading deficiencies, the Court
       feels compelled to also address “the best interests” of this child before awarding
       custody.

The trial court set aside and dismissed the order that granted temporary custody to Stuart. In

fact, at the end of the August 2013 hearing, arrangements were made for hair-follicle tests

(which proved negative) and posthearing briefs were scheduled, but the trial court also

commented, “I will tell you right now in my opinion that nothing, nothing, supported the

Ex Parte Order, nothing. Had she [Alyssa] not caved on December 12, 2012, I doubt if we

would be here today.” In an abundance of caution, however, the trial court made a specific

finding in its May 6, 2013 order that it was in the child’s best interest for Alyssa to have

custody. We find no clear error in that finding.

       At the August 2013 hearing, both parties testified, along with six other witnesses, and

several exhibits were introduced. Alyssa was the primary care giver for M.D. until Stuart

assumed custody.      Testimony was presented that Alyssa had lived in a stable home

environment since the day after Thanksgiving 2012, and that she lived with her other

daughter and that daughter’s grandparents, the Dayberrys, who were Alyssa’s in-laws at the



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time. Alyssa acknowledged that she was separated from her husband, David Dayberry, and

that she planned to divorce him. She remained close to her in-laws, however, who testified

that Alyssa was doing an outstanding job of raising their granddaughter, that David had

essentially abandoned the child and had no contact with her, that he was not welcome in their

house, and that their granddaughter and M.D. played together and seemed to have bonded.

The trial court stated in its letter opinion that the little girls needed to be reunited as sisters.

       In addition, the trial court was presented with testimony that Alyssa had maintained

employment during that time period, sometimes working two jobs; that she brought home

approximately $825 a month, with bills amounting to $584 a month; that she worked from

5:50 a.m. until 1:50 p.m.; that her other daughter went to daycare; and that M.D. would also

go to daycare. Photographs of the Dayberrys’s house were introduced. There was testimony

that Alyssa was welcome to stay there as long as she needed to do so and that she had her own

private area for herself, the daughter living with her, and for M.D. if she were awarded

custody. There was also testimony that Alyssa was a loving mother and that she responsibly

fulfilled the child’s needs, i.e., Alyssa did not rely upon the grandparents to care for her child,

although that they did help in getting the child to daycare in the morning after Alyssa had left

for work.

       Giving due deference to the trial court’s superior position to evaluate the testimony

and determine M.D.’s best interest, we are not left with a definite and firm conviction that

a mistake was made in awarding custody of M.D. to Alyssa.

       Affirmed.

       HARRISON and WYNNE, JJ., agree.

       Ronald L. Griggs, for appellant.
       Lloyd H. Smith, Jr., for appellee.

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