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Louton v. Dulaney

Court of Appeals of Arkansas, Division III

April 12, 2017



          The Applegate Firm, PLLC, by: Ryan J. Applegate, for appellant.

          Wood, Smith, Schnipper, Clay & Vines, by: Beau Britton, for appellee.


         Appellant Jacob Louton appeals from an order by the Garland County Circuit Court awarding custody of his son, KL (DOB: 11-26-2012), to appellee Audra Dulaney, the child's mother, and ordering him to pay monthly child support of $1, 000. He raises two points on appeal: (1) the trial court erred in awarding custody to Dulaney without considering joint custody, and (2) the trial court erred in imputing income to him and setting child support based on that amount. We affirm the custody decision but reverse and remand on the issue of child support.

         I. Procedural History

         This case began on September 12, 2014, when Ann Leach, Dulaney's mother, filed a Family in Need of Services (FINS) petition seeking temporary custody of one of Dulaney's other children because Dulaney was then in treatment for a drug addiction. On September 24, 2014, the trial court placed custody of that other child with her maternal grandparents and ordered Louton to be served with an order to appear with KL at a hearing in October 2014, which was continued until November. A paternity report was filed on November 25, 2014, indicating that Louton was KL's biological father. Louton was awarded temporary custody of KL in an order entered in January 2015.

         On April 23, 2015, Dulaney moved for KL to be returned to her custody, alleging that she had been sober for at least six months, was attending NA meetings, and had secured stable housing and employment. Alternatively, Dulaney sought visitation with KL because Louton had refused to allow her any visits with the child. A hearing was held later that month, and Louton failed to appear. The trial court returned custody of KL to Dulaney. In June 2015, the trial court ordered the parties to alternate visitation with KL until the case was resolved. Through mediation, the parties agreed to a different visitation schedule with respect to KL, but they refused to cooperate with each other. A hearing was held in December 2015 to establish custody and support.[1]

         II. Hearing

         The evidence established that Louton and Dulaney were married briefly in 2007. According to Dulaney, their marriage ended when she filed domestic-violence charges against Louton and got a no-contact order. KL was conceived and born out of wedlock to the parties in 2012. Dulaney testified that shortly after KL's birth Louton had requested a DNA test, which confirmed that he was KL's father. Dulaney stated that Louton, who had moved to Colorado, visited only twice after KL was born and provided her with a small amount of money.

         Dulaney testified that she had been diagnosed with bipolar disorder as a teenager and took medication for that. She admitted having an opiate addiction in 2008. While pregnant with KL, Dulaney was diagnosed with both cervical and uterine cancer, ultimately requiring that she have "a radical hysterectomy." Dulaney said that she had cut her wrists while pregnant with KL and had been hospitalized for five days. Dulaney said that her family had offered some help but that Louton had offered her no help. Dulaney explained that she was a single mother raising five small children aged ten, six, four (twins), and three (KL). Dulaney testified that she felt "helpless" and thought that she was "failing at being a mom, " so she started using drugs to give her energy. She admitted "shooting up" with methamphetamine for six months before the FINS petition was filed.

         She stated that the Arkansas Department of Human Services (DHS) became involved due to her drug abuse but did not remove KL from the home. During DHS's involvement, Dulaney asked a social worker for help finding a drug-rehab facility. The social worker advised her that she could not keep her children, which Dulaney said led her to ask Louton to take temporary custody of then eighteen-month-old KL. She saw that as "her only option." Dulaney went to two drug-rehab facilities while Louton had KL. Dulaney testified that, during the eight or nine months that Louton had custody of KL, he did not allow her to see the child, even after she had been awarded visitation.

         She said that after custody of KL had been returned to her, Louton and the child spoke on the telephone almost every day. Dulaney said that on one occasion when KL returned from visitation with Louton, he had been bitten by Louton's dog; there were two or three times when KL's hair, shoes, and clothing smelled like marijuana; she thought Louton was growing marijuana in his basement; she did not think KL had been taken to the doctor and dentist for checkups; and the boy was very withdrawn and quiet since he had been returned to her custody. According to Dulaney, Louton did not return the child on time and sometimes arrived with him after midnight. Dulaney stated that she and Louton did not communicate effectively at all.

         Dulaney testified that she lives in a three-bedroom, two-bath house and that all of KL's siblings and extended family, as well as Louton's child from another relationship, also live in Garland County. Dulaney admitted that she had been fired from her last job but stated that she had been working at a new job for three weeks, earning $300 per week. Also, she was in the military in 2003 but had been discharged due to a back injury, for which she received VA and SSI disability.

         Dulaney further testified that she had been sober for fourteen months, attended NA/AA meetings five times per week, and attended "Celebrate Recovery" meetings twice per week. She said that she gets along well with her family, as well as Louton's family, and that ...

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