James Corter v. Nakisha Corter , 2023 Ark. App. 266 ( 2023 )

Cite as 2023 Ark. App. 266ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-22-318
JAMES CORTER Opinion Delivered May 10, 2023
APPELLANT
APPEAL FROM THE INDEPENDENCE
COUNTY CIRCUIT COURT
[NO. 32DR-20-155]
V.
HONORABLE DON MCSPADDEN,
NAKISHA CORTER JUDGE
APPELLEE
AFFIRMED
RAYMOND R. ABRAMSON, Judge
In this one-brief appeal, appellant James Corter argues that the circuit court erred in
its custody and visitation determinations, its calculation of child support, and in awarding
attorney’s fees. We affirm.
James and appellee, Nakisha Corter, were married on January 18, 2014. Nakisha has
two children from a previous relationship who are not parties to this custody and visitation
dispute, and she was pregnant with a third (MC 1) when she and James married. James has
two older children (MC 2 and MC 3) from a prior relationship. James and Nakisha have one
biological child (MC 4) together.
In 2019, Nakisha left the home, and the four minor children continued living with
James. Later, Nakisha took MC 1 for a visit but never brought her back and was subsequently
arrested and pled guilty to drug offenses. James filed for divorce; that case was later dismissed.
On May 11, 2020, James filed the instant divorce case. Nakisha was served and filed
an answer on June 3. There was no activity until April 29, 2021, when the case was set for
trial on November 16.
Nakisha went to James’s house on August 23, 2021, and got into a physical altercation
with him; all the children witnessed it. James was arrested, and Nakisha obtained an order
of protection against him. At the November divorce proceeding, both James and Nakisha
testified as well as Frank Foll and Justin Hager, who testified on James’s behalf. The minor
children also were examined by the court.
Following the hearing, the court granted the divorce and awarded custody to Nakisha.
The court found by clear and convincing evidence that it was in the children’s best interest
to be in Nakisha’s custody. The court also ordered James to pay child support in the amount
of $1006 a month and made it retroactive to August 1, 2021. In addition, the court ordered
that the $4024 in arrears be paid at a rate of $200 a month. The court ordered James to
repay Nakisha $3000, representing the amount he received in stimulus money after the
parties’ separation. After ninety days of only limited telephone contact and visitation, the
court allowed supervised visitation between James and the children one weekend a month
from 10:00 a.m. to 6:00 p.m. on Saturdays. The court noted that if the supervised visits went
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well, the court would revisit the issue after March 1, 2022. The court ordered James to pay
$2000 in Nakisha’s attorney’s fees. This timely appeal followed.
This court reviews domestic-relations cases de novo, but we will not reverse the circuit
court’s findings unless they are clearly erroneous. Doss v. Doss, 2018 Ark. App. 487, 561
S.W.3d 348. A finding is clearly erroneous when, although there is evidence to support it,
the reviewing court on the entire evidence is left with a definite and firm conviction that a
mistake has been made. Id. Due deference is given to the circuit court’s superior position to
determine the credibility of witnesses and the weight to be given their testimony. Id.Whether a circuit court’s findings are clearly erroneous turn in large part on the
credibility of the witnesses, and special deference is given to the circuit court’s superior
position to evaluate the witnesses, their testimony, and the children’s best interest.
Cunningham v. Cunningham, 2019 Ark. App. 416, 588 S.W.3d 38. There are no cases in which
the circuit court’s superior position, ability, and opportunity 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 child, with all other considerations being
secondary. Id.James first argues on appeal that the circuit court erred in awarding custody to a
stepparent without a finding that the natural parent was unfit and that its ruling should
therefore be reversed. Here, while the circuit court did not make a specific fitness finding,
we can assume that it found Nakisha to be fit because it awarded custody to her. This court
has held that “in the absence of a showing to the contrary, we presume that the circuit court
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acted properly and made such findings of facts as were necessary to support its decision.”
Chekuri v. Nekkalapudi, 2020 Ark. App. 74, at 13–14, 593 S.W.3d 467, 475–76.
Moreover, the evidence before the circuit court here supports a fitness finding. James
physically abused Nakisha in front of the children. The court found that James was the
aggressor, supporting the legislative directive that it is not in a child’s best interest to be in
the custody of an abusive parent.1 The circuit court made the following relevant findings:
Number one, it’s obvious that the parties do not get along. There’s been
multiple assaults and batteries over the years, the way that Mr. Corter has
talked to Ms. Corter, the domestic violence, and that is always something that
is addressed in child custody suits, and that goes against the person who is
guilty of the domestic violence, and that would be Mr. Corter.
Given the circuit court’s clear language and our deference to the court’s superior
position to evaluate witnesses, their testimony, and the children’s best interest, we are not
1
Arkansas Code Annotated section 9-13-101 (Supp. 2021) provides, in pertinent
part:
(c)(1) If a party to an action concerning custody of or a right to visitation with a
child has committed an act of domestic violence against the party making the
allegation or a family or household member of either party and such allegations are
proven by a preponderance of the evidence, the circuit court must consider the effect
of such domestic violence upon the best interests of the child, whether or not the
child was physically injured or personally witnessed the abuse, together with such facts
and circumstances as the circuit court deems relevant in making a directive pursuant
to this section.
(2) There is a rebuttable presumption that it is not in the best interest of the child
to be placed in the custody of an abusive parent in cases in which there is a finding
by a preponderance of the evidence that the parent has engaged in a pattern of
domestic abuse.
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left with a definite and firm conviction that the court erred in its findings to award Nakisha
custody.
James next argues that the circuit court erred in awarding only telephonic and limited
supervised visitation. His entire argument is simply asking us to second-guess the circuit
court’s determination as to the weight of the evidence and the credibility of the witnesses.
The circuit court properly considered all the evidence and testimony before it, and we, as
the reviewing court, cannot and will not reweigh the evidence in favor of James’s position.
Raymond v. Kuhns, 2018 Ark. App. 567, 566 S.W.3d 142. Given our standard of review and
the special deference we give circuit courts in child-custody cases, we cannot say that the
circuit court clearly erred in determining that supervised visitation was in the children’s best
interest.
James’s third point on appeal is that the circuit court erred in its calculation of child
support. Specifically, he maintains that the circuit court erred by not taking into
consideration “the lack of support from Nakisha during her abandonment of the children
from May 2020 to August 2021” and that “[a]ny award for retroactive support should have
accounted for both parties’ roles in supporting the children up until that point.” We decline
to address this issue because it is being raised for the first time on appeal. Our law is well
settled that issues raised for the first time on appeal, even constitutional ones, will not be
considered. Tipton v. Aaron, 87 Ark. App. 1, 185 S.W.3d 142 (2004).
Finally, James argues that the circuit court erred in awarding Nakisha’s attorney’s fees.
As a general rule, attorney’s fees are not allowed in the absence of a statute permitting them;
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however, a circuit court has the inherent power to award attorney’s fees in domestic-relations
proceedings. Hargis v. Hargis, 2019 Ark. 321, 587 S.W.3d 208. When awarding attorney’s
fees in a domestic-relations case, the court is not required to conduct an analysis using the
Chrisco2 factors or make any particular findings. Tiner v. Tiner, 2012 Ark. App. 483, at 16,
422 S.W.3d 178, 187. Rather, in domestic-relations cases, where the court is intimately
acquainted with the record and the quality of services rendered, we have held that the circuit
court is in a better position than we to evaluate the services of counsel and observe the
parties, their level of cooperation, and their obedience to court orders. Hudson v. Hudson,
2018 Ark. App. 379, at 7, 555 S.W.3d 902, 906. This court will not disturb a circuit court’s
decision regarding attorney’s fees absent an abuse of discretion. Vice v. Vice, 2016 Ark. App.
504, at 10, 505 S.W.3d 719, 725.
Here, James does not cite any legal authority in support of his argument that the
court’s award was unwarranted. This court may refuse to consider an argument when the
appellant fails to cite any legal authority, and the failure to cite authority or make a
convincing argument is sufficient reason for affirmance. Jewell v. Fletcher, 2010 Ark. 195, at
24, 377 S.W.3d 176, 191 (citing Middleton v. Lockhart, 344 Ark. 572, 43 S.W.3d 113 (2001)).
Thus, we affirm the circuit court’s order directing James to pay $2000 for Nakisha’s
attorney’s fees.
Affirmed.
2
Chrisco v. Sun Indus., Inc., 304 Ark. 227, 800 S.W.2d 717 (1990).
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GRUBER and MURPHY, JJ., agree.
Law Office of Shannon Briese, PLLC, by: Shannon Briese, for appellant.
One brief only.
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