Vongkhamchanh v. Vongkhamchanh

Cite as 2015 Ark. App. 584

ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-15-312

SUNGKA VONGKHAMCHANH Opinion Delivered October 21, 2015
APPELLANT
APPEAL FROM THE WASHINGTON
V. COUNTY CIRCUIT COURT
[NO. DR-14-1238]

ALICIA VONGKHAMCHANH HONORABLE CRISTI BEAUMONT,
APPELLEE JUDGE

AFFIRMED

RITA W. GRUBER, Judge

This case involves a custody dispute between appellant, Sungka Vongkhamchanh, and

his ex-wife, appellee, Alicia Vongkhamchanh, over their two children. The parties were

divorced by a decree entered on February 6, 2015, which awarded primary custody of the

children to appellee and standard visitation to appellant. Appellant contends that the trial

court erred in using his military status as the basis for denying him custody and in awarding

him standard visitation in “flagrant disregard” of its incompatibility with his active military

status. We hold that the trial court did not clearly err, and we affirm its decision.

The parties were married in 2011. Appellee filed a complaint for divorce on July 22,

2014, and appellant filed an answer on August 18, 2014. At the time of the divorce hearing

in January 2015, their children were ages three and five. Appellant testified that he was

employed by the United States Air Force and had been with the air force for four years at

the time of the hearing. Although the parties met while in high school in Arkansas, the
Cite as 2015 Ark. App. 584

family lived together for most of their marriage in Great Falls, Montana, where appellant was

stationed. The parties separated in late 2013, when appellee left Montana with the children

and moved in with her parents in Arkansas.

Appellee testified that, when they lived in Montana, she had stayed at home and been

the primary caretaker of the children and that appellant had done very little interacting with

them, even when he was home. She testified that, at the time of trial, she was living with her

parents in Fayetteville and working at a newspaper factory in Lowell from 1:30 p.m. to 9:30

p.m. each day. She was planning to become a machine operator, which would pay more. She

testified that her brother was a supervisor where she worked and that she could change her

shift as needed so that she or her parents were available to take care of the children. She also

planned to get an apartment with her increased income and child support, if support were

awarded. She testified that her children generally awoke at 7:00 a.m., ate breakfast, and then

spent time outside until she put them down for a nap while she prepared to go to work.

On cross-examination, appellee admitted that she had been arrested for and pleaded

guilty to DWI in June 2014. She said that the children were not in the car with her at the

time, that she no longer drank alcohol, and that she had not been arrested for any alcohol or

drug-related offenses since that time. She also testified that she was in a new relationship and

pregnant at the time of the hearing.

Appellee’s mother and stepfather testified that the parties’ relationship was volatile and

that they argued regularly about appellant’s lack of involvement in the children’s life. Both

testified that appellant’s interaction with the children was very limited and that appellee had

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always been there for the children. Both also opined that it was in the best interest of the

children to remain with appellee.

Appellant testified that his work hours were from 3:00 p.m. to 11:00 p.m. Saturday

through Thursday but that he would change those hours if he were granted custody. He said

that he currently lived in a two-bedroom apartment and that he was on a waiting list for a

three- or four-bedroom house on base. He testified that he accumulated two-and-a-half days

of leave per month; however, he did not visit the children after they left Montana in

December 2013 until August 2014, when he took three weeks’ leave to spend in Arkansas

with his family. He saw the children only three or four days during that time. He testified

that he asked appellee “a couple of times” during those three weeks to see them but appellee

had told him “her parents had them.” When the court asked appellant why he did not file

“something” with the court to set up visitation, he said he was not aware that he could. He

testified that he would be deployed overseas for only six months every three years and that,

if he were awarded custody, his sisters or his mom, who all lived in Arkansas, could watch

the children while he was deployed. Although appellant testified that appellee was a “good

mom,” he said that he could “give them a better education, properly finance them,” and he

had “contingency plans” for them in case anything happened.

Appellant’s sister testified that the parties had a very rocky relationship, that there was

always miscommunication between them, and that, when the parties were together, appellant

had worked full-time and appellee had stayed home with the children. She said that appellant

was very good with the children and always tried to instill education and discipline. She

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testified that, in her opinion, it was in the best interest of the children to be with appellant

because of the instability she had witnessed when the parties were together. She said that

appellant did not allow “certain things to affect him emotionally” the way appellee did.

The court found that it was in the best interest of the children for appellee to be

awarded custody, giving several reasons for its decision. First, the court said that appellee had

been the primary custodian of the children, and it did not want to remove them from the

home they had known all of their lives. The court said that it appreciated appellant’s military

service and found it “admirable” but noted that it did not put him in the best position to

provide the safest environment for the children and that it had, unfortunately, put him in a

situation where the children did not know him as well as they knew appellee. The court

found that the most “stable environment” for the children at that time was with appellee.

The court also awarded standard visitation to appellant with one Skype or phone visitation

per week. The court’s order, entered on February 6, 2015, reflected its oral pronouncement,

finding that it was in the best interest of the children for primary custody to be awarded to

appellee with appellant having standard visitation. The court also stated that visitation could

be adjusted “by mutual agreement of the parties to accommodate the Defendant’s service in

the United States Air Force.”

For his first point on appeal, appellant contends that the trial court erred when it used

his military status as the basis for denying him custody. We review child-custody cases de

novo, but we will not reverse a trial court’s findings unless they are clearly erroneous.

Grantham v. Lucas, 2011 Ark. App. 491, at 4, 385 S.W.3d 337, 340. Because the question of

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

witnesses, we give special deference to the superior position of the trial judge to evaluate the

witnesses, their testimony, and the child’s best interest. Sharp v. Keeler, 99 Ark. App. 42, 44,

256 S.W.3d 528, 529 (2007). There are no cases in which the superior position, ability, and

opportunity of the trial judge to observe the parties carry as great a weight as those involving

minor children. Horton v. Parrish, 2015 Ark. App. 306, at 10, 461 S.W.3d 718, 724.

Appellant’s argument specifically relies on Arkansas Code Annotated section 9-13-

110(b), which forbids a court from “permanently modify[ing]” an order for child custody or

visitation “solely” on the basis that one of the parents is a “mobilized” parent. Ark. Code

Ann. § 9-13-110(b) (Repl. 2009). In such a case, the court must determine whether a

temporary modification is appropriate and, in making that determination, consider “any and

all circumstances that are necessary to maximize the mobilized parent’s time and contact with

his or her child that is consistent with the best interest of the child.” Ark. Code Ann. § 9-

13-110(c)(1) & (2). The statute then lists certain factors for the court to consider. Ark. Code

Ann. § 9-13-110(c)(2). Although appellant admits that the statute does not apply here

because the court was not modifying an order but entering an initial custody order and

appellant was not, at the time of the hearing, being “mobilized,” he argues that the trial court

should have incorporated the spirit of the statute in this case. Appellant did not make this

argument or even mention this statute to the trial court. Therefore, whatever the statute’s

tangential relevance to this case, it is elementary that we will not consider arguments that are

not first raised in the trial court. Stacks v. Stacks, 2009 Ark. App. 862, at 4, 377 S.W.3d 265,

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269. Otherwise, we would be placed in the position of reversing a trial court for reasons not

addressed by that court. Id. This argument is not preserved for our review.

We now turn to appellant’s characterization of the trial court’s ruling. Appellant has

misstated the basis for the court’s award of custody to appellee. The court stated that appellee

had been the primary caretaker of the children and that it did not want to remove them from

her. The court said that it appreciated appellant’s military service but stated that it did not put

him in the best position to provide the safest environment for the children and that it had,

unfortunately, put him in a situation where the children did not know him as well as they

knew appellee. The court found that the most “stable environment” for the children at the

time was with appellee. The trial court did not, as appellant argues, deny custody to him

based on his military status. Rather, the court very specifically awarded custody to appellee

based on the best interest of the children. One factor it considered in making its decision was

the limited time appellant had spent with the children in part because of his job. We hold

that the trial court’s finding that it was in the children’s best interest to remain in the custody

of appellee was not clearly erroneous.

For his second point on appeal, appellant argues that the trial court erred in awarding

him standard visitation in “flagrant disregard” of its incompatibility with his active military

status and against the best interest of the children. The court’s order awarded “visitation in

accordance with the Washington County Standard Visitation schedule” but also stated that

appellant’s visitation could be adjusted “by mutual agreement of the parties to accommodate

[appellant’s] service in the United States Air Force.” We review visitation de novo and will

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not reverse the trial court’s findings unless they are clearly erroneous or clearly against the

preponderance of the evidence. Bowen v. Bowen, 2012 Ark. App. 403, at 2, 421 S.W.3d 339,

341. The main consideration for the court in awarding visitation is the best interest of the

child. Favano v. Elliott, 2012 Ark. App. 484, at 8, 422 S.W.3d 162, 166. Fixing visitation

rights is a matter that lies within the sound discretion of the trial court. Baber v. Baber, 2011

Ark. 40, at 10, 378 S.W.3d 699, 705.

Appellant contends that, in awarding standard visitation, the trial court did not give

any consideration to the unique circumstance of his being in the military nor did it consider

the distance he would be required to travel to exercise his visitation. He argues that the

court’s failure to consider these unique circumstances constitutes reversible error. First, we

are left to speculate about the substance of the Washington County Standard Visitation

schedule because appellant did not provide any details about this schedule. Moreover, the

schedule is not in the record or the addendum. Secondly, appellant failed to provide any

alternative visitation schedule to the trial court. The record is devoid of any testimony by

appellant establishing a workable visitation schedule or any argument or pleading by

appellant’s lawyer for any alternative to the standard visitation. Indeed, neither appellant nor

his attorney mentioned future visitation or the difficulty that an order of standard visitation

might present. Absent any evidence or argument to support a more workable visitation

schedule, we hold that the court did not abuse its discretion by failing to create such a

schedule out of whole cloth.

Affirmed.

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KINARD and HIXSON, JJ., agree.

Kevin Hickey Law Firm, by: Kevin L. Hickey, for appellant.

Wayne Williams Law Office, PLLC, by: Wayne Williams, for appellee.

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