FROM THE CROSS COUNTY CIRCUIT COURT. NO. DR-2004-170-4.
HONORABLE KATHLEEN BELL, JUDGE.
Witcher Brock, for appellant.
D. Roberts, for appellee.
VIRDEN, Judge. GLADWIN, C.J., and GRUBER, J., agree.
F. VIRDEN, Judge
appeal stems from the Cross County Circuit Court's denial
of Marcus Wilson's petition to set aside a judgment in
which it denied Marcus's request to modify visitation
with his minor child, D.W. We affirm.
Wilson and Edie Wilson were divorced in August 2004, and by
mutual agreement, Edie was granted custody of the
parties' minor children. Marcus was granted visitation
and shared parenting.
February 26, 2010, Edie filed a petition to suspend
Marcus's visitation with the children because of
allegations that Marcus had been arrested for possession of a
firearm, that Marcus and his wife had been manufacturing
methamphetamine, and that there was domestic abuse in their
home. A temporary ex parte emergency order suspending
visitation was entered the same day. On March 5, 2010, Marcus
was personally served by process server with a summons, the
complaint, and the order. The summons set forth that a
hearing would be held on March 10, 2010, or sooner if Marcus
requested one, and that if he failed to respond he would be
subject to a default judgment. An affidavit of service of the
summons, complaint, and ex parte temporary order was
did not file an answer, and the hearing took place on March
10, 2010. Marcus did not attend the hearing, and the circuit
court entered an order on April 8, 2010, terminating
Marcus's visitation with his children.
November 15, 2013, Marcus filed a petition to reinstate his
visitation with D.W., the only child who was still a minor.
In his petition, Marcus acknowledged that on February 26,
2010, the circuit court entered a temporary order suspending
his visitation. Marcus asserted that the criminal charges
against him had been dropped, and that because it was in
D.W.'s best interest to have a relationship with his
father, the court should reinstate visitation. Edie filed a
response on January 10, 2014, arguing that the petition
should be denied.
hearing on July 31, 2014, Marcus asserted that a material
change in circumstances had occurred, namely, that no
criminal charges had ever been filed against him and that he
was employed and remarried; therefore, Marcus argued, because
of his stability over the last few years, and because it was
generally good for fathers to be involved in their
children's lives, it was in D.W.'s best interest for
the court to reinstate visitation. Edie and the child's
stepfather asserted that visitation should not be reinstated.
They testified that the child's family life had been
stable for the last four years and that D.W. was thriving in
his current situation that did not include Marcus.
hearing, Marcus's attorney explained that the petition to
reinstate visitation had referenced the February 26, 2010
order, and not the April 8, 2010 order, because neither she
nor Marcus had been aware until that morning that the April
order existed and that Marcus had believed that " there
was never another hearing." The court refused to hear
testimony concerning anything but the issue of modification
of visitation and instructed counsel that she could proffer
any evidence related to why Marcus did not attend the hearing
on March 10, 2010.
September 10, 2014, the court entered an order denying
Marcus's petition to reinstate visitation. In the order,
the circuit court made the following findings: there had been
little contact between D.W. and his father over the last few
years other than a few phone calls and their paths crossing
at a family Christmas gathering; Marcus had kept up with
D.W.'s life by talking to D.W.'s adult siblings;
Marcus's visitation had been terminated in 2010 because
he had been arrested and charged with possession of a gun and
manufacturing methamphetamine; the criminal charges had been
dismissed in 2013; and since 2014, Marcus had remarried, had
been employed full time, and was stable in his lifestyle.
circuit court also found that though Marcus had shown a
material change in circumstances had occurred, " there
is no evidence introduced which could lead this court to
determine that modification is in the best interest of the
child. Without that finding, this court may not modify the
visitation order." The circuit court also found that
Marcus had not addressed " the other factors which this
court should consider" listed in Sharp v.
Keeler, 99 Ark.App. 42, 56, 256 S.W.3d 528, 538 (2007)
(" the wishes of the child, the capacity of the party
desiring visitation to supervise and care for the child,
problems with transportation and prior conduct in abusing
visitation, the work schedule and stability of the parties,
the relationship of siblings and other relatives" ).
September 22, 2014, Marcus filed a motion to set aside the
April 8, 2010 default judgment. Alternatively, he requested
postjudgment relief in the form of a new trial.
hearing on the matter took place on November 12, 2014, and
after hearing argument from both sides, the court denied
Marcus's motion to set aside judgment. Marcus filed a
timely notice of appeal.
Points on Appeal
raises the following four points in this one-brief appeal:
(1) the circuit court erred when it denied Marcus's
motion to set aside the April 8, 2010 judgment as void for
insufficient service; (2) the circuit court erred when it