LADONNA S. GEREN WILLIAMS, APPELLANT
PATRICK B. GEREN, APPELLEE
APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT. No. DR-2008-303. HONORABLE ANNIE POWELL HENDRICKS, JUDGE.
Edwin G. Dooley, Jr., for appellant.
Byars, Hickey, and Hall, PLLC, by: Kevin L. Hickey, for appellee.
ABRAMSON and KINARD, JJ., agree.
LARRY D. VAUGHT, Judge.
Appellant LaDonna Geren Williams (LaDonna) appeals the Sebastian County Circuit Court's order modifying custody of her two minor children, E.G.1 and E.G.2. The court removed the two girls from LaDonna's custody and placed them in the custody of their father, appellee Patrick Geren (Patrick). LaDonna argues that the circuit court erred in finding changed circumstances and erred in determining that a transfer of custody was in the children's best interest. We agree that there was no material change in circumstances sufficient
to warrant modification of custody and therefore reverse. We do not reach LaDonna's second point as to best interest.
LaDonna and Patrick were married on February 16, 1997. They divorced on May 9, 2008. There were three children born of the marriage: a son, Tyler, who is now an adult, and two daughters, E.G.1, born in 2003, and E.G.2, born in 2005. The divorce decree awarded custody of all three children to LaDonna. The divorce decree anticipated that both parents would spend equal amounts of time with the children and ordered that Patrick pay all daycare expenses in lieu of child support. In January 2013, Patrick married Sue Geren. Sue and her two minor sons began living with Patrick. In August 2013, LaDonna transferred the girls from the Greenwood School District to the Fort Smith School District, in which she was residing. In 2013, LaDonna filed a motion to set child support, alleging that the children were not spending equal time with each parent and that Patrick was not paying daycare expenses. Patrick filed a response and motion for modification of custody alleging the following material changes in circumstances: (1) LaDonna had driven with the minor children in her car after drinking, (2) LaDonna had picked up the children from visitation while intoxicated by alcohol, (3) LaDonna had left the minor children home alone for extended periods of time while she went out drinking, (4) LaDonna was cohabiting with a man to whom she was not married, and (5) there were other factors that impacted the welfare of the children that would " be shown at a hearing of this matter." LaDonna filed a response denying the allegations. In December 2013, LaDonna married Tony Williams, the man with whom Patrick alleged she had been cohabiting.
A hearing was held on May 14, 2014. E.G.1, age ten, testified that she lived with her mother, sister, and stepfather, Tony Williams, and visited her dad. She testified that she was going to a new school but preferred her old school and that she was an A and B student but had recently gotten two C grades. E.G.1 testified that during visitation at her father's house she was allowed to call her mother, that the younger children were sometimes left in the care of Sue's fourteen-year-old son, and that she got along with both of her stepbrothers. She also testified that she and her sister were sometimes left alone at her mother's house. E.G.1 testified that her father's wife, Sue Geren, did not drink alcohol, but that her mother's husband, Tony Williams, drank beer at the house. E.G.2, age eight, testified that she liked being at both her mother's and father's houses, was happy living with her mother, liked her stepfather, was doing well in school, had friends, and maintained good grades.
LaDonna testified that Patrick had not paid child-care expenses as ordered in the divorce decree. She testified that the children had spent approximately equal amounts of time with both parents until recently and that she was asking for child support because she was caring for the children more than originally anticipated. LaDonna testified that the girls attended an after-school care program called Girls, Inc., which provided activities that they enjoyed. She testified that Patrick refused to help pay for Girls, Inc. She introduced a letter from Patrick in which he refused to pay for $5 school t-shirts for the girls, and she testified that the letter was actually written by Sue.
LaDonna described an acrimonious relationship between herself and Sue. She stated that she could not communicate with Patrick because Sue was the " gatekeeper," that Sue had soured her co-parenting relationship with Patrick, and that Sue
had called her a " fucking bitch" in the children's presence.
LaDonna testified that, while under Patrick's care, E.G.2 had fallen into his swimming pool and nearly drowned. LaDonna, a former nurse, testified that Patrick had not been truthful about the extent of E.G.2's injuries and the seriousness of her condition when he initially called her and that he had not immediately sought emergency medical care. LaDonna testified that E.G.1 had special medical needs due to kidney problems and required vigilant monitoring and care. LaDonna testified that she and both girls had a latent type of antibiotic-resistant staph infection known as MRSA, which can cause severe complications. She testified that, as a trained nurse, she knew how to care for the girls' health needs, including preventing and detecting MRSA outbreaks.
LaDonna stated that she had recently married Tony Williams, whom she had dated for five years before the marriage. She denied that, prior to their marriage, Tony had lived with her or stayed overnight with her while the children were present. She described Williams's relationship with her children as very good. She stated that he sometimes took care of the girls when she was at work.
LaDonna testified that she worked two full-time jobs: the resident manager at the apartment complex where she lived and a cereal packaging operator with Nestle. She stated that, as manager of the apartment complex, she was provided a large apartment directly above (and connected to) the office. She testified that she had to be available from 9:00 a.m. to 6:00 p.m., but she did not have to be in the office the entire time and she had assistants who could help if needed. LaDonna's duties as residential manager sometimes required her to leave the girls in the apartment while she was downstairs in the office or somewhere else in the complex. She testified that she left the girls with the office phone in case they needed anything and also had her assistants watch them. LaDonna's second job at the Nestle plant was a swing-shift position, meaning that she worked every other weekend and two variable days per week. Those shifts were night shifts, starting at 6:00 p.m. and ending at 6:30 a.m., during which the girls were usually either at Patrick's house for scheduled visitation or in the care of LaDonna's husband. She testified that, when she got off ...