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Li v. Ding

Court of Appeals of Arkansas, Division III

April 19, 2017

HONGYANG "BRIAN" LI APPELLANT
v.
YI DING APPELLEE

         APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. 72DR-10-809] HONORABLE BETH BRYAN, JUDGE.

          Taylor Law Partners, LLP, by: William B. Putman, for appellant.

          Goodrum Law Firm, PLLC, by: Sara E. Goodrum, for appellee.

          WAYMOND M. BROWN, Judge

         This is an appeal from the circuit court's order granting appellant's petition to modify custody, in which it awarded joint custody to both parties.[1] On appeal, appellant argues that the circuit court erred (1) in determining that joint custody is in the best interest of the parties' minor children, (2) in denying appellant primary custody of the parties' minor children, and (3) in the amount of child support it ordered appellant to pay. We reverse and remand.

         A divorce decree was entered on June 18, 2010, awarding primary custody of the parties' two minor children-G.L. and N.L.-to appellee and ordering appellant to pay $1, 176.00 in child support, among other things. On December 16, 2015, appellant filed a motion to modify custody alleging an unidentified material change in circumstances.[2] On January 15, 2016, appellee filed a motion to dismiss appellant's petition for failure to include facts supporting the petition as required by Arkansas Rule of Civil Procedure 7.[3] A hearing on appellant's petition was held on July 1, 2016.

         Appellant testified, in pertinent part, to the following. Both parties agreed to enter G.L. into the lottery to get into Haas Hall Academy (HHA)-where 100% of the students go to college-when G.L. was going to the seventh grade, but appellee failed to "follow through" on doing so.[4] Appellant followed up with appellee to ensure that G.L. was getting enrolled, but it was clear that appellee had not signed up G.L. Appellant registered G.L. through the school's lottery system for her ninth-grade year, but she did not get in. Appellant stated that appellee was not active in the children's school engagements. One example given was appellee's failure to attend a ceremony in which G.L. was recognized for receiving the highest SAT score in Arkansas, despite a free bus ride being provided to the event. She was either late or missed other meetings dealing with the children's education. Appellee also does not go to N.L.'s baseball practices or games. He also discussed the difficulties imposed on the children's education by appellee's failure to acquire internet service, despite his offer to pay for the same. G.L.'s application to Duke University's TIP program was late, so she had to be waitlisted, though she did eventually get in.

         Appellant also noted that while both children had eye exams back on April 4, 2016, to date, appellee still had not gotten their glasses. N.L. was supposed to be doing a treatment for his eyes at home, but appellee was failing to ensure that he did so. In an "outburst" over the phone, appellee told appellant, "if you want to give him this treatment, you help him." Furthermore, appellee was hindering his visitation, recently disallowing N.L. to go on a visit with appellant until he had completed his chores, which appellant helped him finish. He told the circuit court about a call he received from the Department of Human Services (DHS) about appellee "slapping [N.L.] on the face." Appellee, who was unemployed, had lived in five or six places since their divorce, including with a man who was arrested for video voyeurism.[5] Appellee is now taking medication for her mental-health issues, though she did not when the parties were married. Appellant was seeking primary custody because he is "the one doing all the things for schooling, education, activities, and medical stuff for the children now[, ]" which he has been "doing for a long time[, ]" and "[i]t's difficult to do that as a non-custodial parent because the children are at the other home." He was opposed to joint custody because

Everybody gets different ideas. I won't do this. I won't do that. So, what are we going to do the next time? The reason why is we got different ideas. [Appellee] got her own ideas how to take care of the kids. I've got my own idea of how to take care of the kids.

         Appellee testified that appellant had "expressed concern to [her] about wanting to get custody of the children . . . a few times when [she] didn't go [his] way regarding parenting." She was not working; her income was her scholarship, a Pell grant, and child support. She explained her multiple housing situations, noting that two were due to mold issues. She explained that the wife of the perpetrator of the video voyeurism was someone she knew from church, and the perpetrator was the mold inspector she had hired to inspect the mold in two or three places she had lived. She stated that she was "deeply involved" in volunteering with Leverett Elementary during the 2013-2014 school year, so much that she received volunteer of the year for Fayetteville schools that same school year. She used the time during N.L.'s games to take G.L. to use the internet at a church on-campus ministry, RFC.

         Appellee averred that she had taken the kids to "all of the doctors' appointments except some eye doctor's [sic] appointment that [appellant] wanted to take"; she was never late and never missed a treatment. The children's new glasses had been ready since "the end of May, beginning of June, " but the children had been on a mission trip and a trip with appellant. She did not remember appellant offering to pay for internet service at her home- "[m]aybe that's true"-but she was "not opposing it." She emails the children's teachers at the start of the school year and requests that they provide the children with hard copies of work assigned online. Teachers have been accommodating, with each responding to her emails that they do not require internet, will not assign internet homework, and will provide hard copies if they do assign internet homework. She takes the children to RFC to use the internet and does not have internet in her home because she thinks it is "[n]ot only the best environment, also, in our priority" not to have internet in the home.

         Appellee admitted being investigated by DHS for slapping N.L. in April 2014. N.L. was "grumpy" and a "slow person" that morning, but she "did wrong by slapping him because [she] wanted to get him to school on time." She averred that it was an isolated event. Regarding HHA, she denied that she agreed to register G.L. there for her ninth-grade year, though she did permit appellant to register her there. She admitted that she "failed to follow through with the online registration" last year. She stated that appellant "did tell her to sign" G.L. up there, but went on to state that their "pattern of communication" was that appellant "gives orders, [she] takes orders." She was "co-dependent and he [controlled] everything" in their marriage. She explained that she thinks G.L. has "the hurdle of being comfortable, stand out and being a leader" and she thinks "public school would actually offer her more opportunity to try different things" where HHA is "very focused on academia, " in which G.L. is already "no doubt" capable. As far as the late Duke TIP program application goes, appellant "never discussed [the program] with [her] in the firsthand"; he just gave her a form and she filled out her part and returned it to him.

         Appellee's concerns with the children being in appellant's custody were that appellant "does not allow [his wife] to be the authority of the household" with the kids "simply completely ignor[ing]" her instructions, appellant's drinking, and appellant's anger with her when she does not "go his way." She was not fighting appellant in this case; she was "fighting this dysfunction of this family" because she did not "want the kids to be involved in this dysfunctional family relationship with controlling father, with co-dependent mother." However, though she admitted that it was "hard" for her to "stand up and say no" or that she did not agree with appellant, she thought joint custody was best for the children. She admitted being overwhelmed by her commitments "[b]ack in 2014" with her condition "interfer[ing] with her ability to focus on her children's needs." She limits her commitments to avoid being overwhelmed by them and is being treated with counseling and medication for anxiety and depression since the divorce. She has a "habit of getting [N.L. to school] late" because she is "overwhelmed in the morning trying to get everything together." Both parents testified to there being tension between the kids and the other parent; however, appellee also admitted to there being tension between herself and the children.[6]

         The circuit court ruled from the bench granting joint custody to the parties. It found that there had been a material change in circumstances on account of the parties' "obviously significant disagreement on where the children should attend school." It found that "an agreement was reached" to apply to and/or register for HHA for G.L. on two occasions, but "[appellee] did not take the necessary steps as the primary custodian to effectuate that agreement as to the children's education." It found that there was "uncontroverted testimony that while there were certain mental health issues during the marriage, that they have become so severe that her depression and anxiety require counseling and medication and that she at times is overwhelmed and that has affected her ability to be the primary custodian." It also highlighted the instability of her six moves and the tension between appellee and N.L., which led to a DHS investigation due to her slapping N.L.[7]

         It found that the material changes in circumstances "obviously" adversely affected the children where there was uncontroverted evidence of appellee slapping N.L., "missed opportunities for schooling that the court finds both parties agreed to, " and no follow-up on doctors' appointments. It also found that the material changes in circumstances "is a result of [appellee] essentially being overwhelmed because of the burdens of being a single mother with primary custody and also suffering from the depression and anxiety." The circuit court went on to find the following:

The court finds that obviously the parties' parenting skills are very different. I don't know that I've seen two more diverse personalities than the two of you. Both of you are abusing your children in very different ways and that has caused, the court finds, problems for the children.
However, the court finds that both of you have character traits, personality traits that are beneficial to the children and that they would benefit by having more time with each of you. And while communication between the two of you has been poor, again, because of these very different personalities-[appellee] describes it as sort of a co-dependent relationship. That [appellant] makes the decisions and she just sort of-has always had to acquiesce, which that's a problem and that's not good communication. But the court finds that even though ...

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