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Marshall v. Rubright

Court of Appeals of Arkansas, Division IV

October 25, 2017

JAMES ANDREW MARSHALL APPELLANT
v.
SETH ROBERT RUBRIGHT AND MINOR CHILD APPELLEES

         APPEAL FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04PR-16-616] HONORABLE XOLLIE DUNCAN, JUDGE

          Niblock Law Firm, PLC, by: Raymond L. Niblock, for appellant.

          Clark & Spence, by: George R. Spence, for appellee Seth Rubright.

          RAYMOND R. ABRAMSON, JUDGE

         James Andrew Marshall appeals the Benton County Circuit Court order granting the adoption petition of Seth Robert Rubright. On appeal, James argues that the circuit court erred by (1) failing to make specific credibility findings and (2) finding that he failed significantly and without justifiable cause to communicate with his son, B.M. We affirm.

         James married Valerie Rubright (formerly Woolsey) on August 30, 2010. They have one child, B.M.[1] In July 2011, James and Valerie separated, and on April 18, 2012, the Benton County Circuit Court entered their divorce decree. The decree granted Valerie primary custody of B.M., subject to James having visitation. It further provided that James pay Valerie child support in the amount of $66 a week. On November 18, 2013, Valerie married Seth.

         On December 10, 2013, the Benton County Circuit Court entered a one-year order of protection of B.M. and Valerie against James. The order resulted from an incident wherein James threatened to break B.M.'s neck and then sent Valerie weblinks to stories about fathers who killed their children and the children's mothers during disputes over child custody and child support. On June 30, 2014, James pled guilty to first-degree terroristic threatening associated with the incident. The court sentenced him to three years' probation and thirteen days in the county jail.

         On July 9, 2014, the circuit court entered an order finding James in contempt for failing to pay child support to Valerie. On October 8, 2014, the circuit court entered a compliance-review order, finding that James had resumed paying child support.

         On December 2, 2014, the circuit court entered a second order of protection of B.M. and Valerie against James lasting through February 24, 2015. On February 15, 2015, the circuit court extended the order for five years.

         On June 2, 2015, the State of Arkansas filed a petition to revoke James's probation. It alleged that James had violated the order of protection, violated a no-contact order with Valerie, and failed to report to his probation officer.

         On April 2, 2016, the State amended the petition to allege that James committed two counts of first-degree terroristic threatening and one count of harassing communication on November 18, 2014, after James had posted a series of threatening messages to Valerie and B.M. on his Facebook page. The messages included the statement that James hoped someone would put a bullet in Valerie's neck and a meat cleaver in B.M.'s head. He also posted the comment: "You [expletive] sue me again and it will be the worst [expletive] mistake you'll regret. I promise you that." Around that time, James also posted on Facebook that his location was Siloam Springs, where Valerie lived. On May 5, 2016, the circuit court revoked James's probation and sentenced him to six years' imprisonment.

         On May 16, 2016, James pled guilty to two counts of first-degree terroristic threatening, one count of violating an order of protection, and one count of harassing communications. He received six years' imprisonment to run concurrently with his revocation sentence.

         On July 26, 2016, Valerie's husband, Seth, filed a petition for adoption of B.M. In the petition, Seth alleged that because James had not had contact with B.M. since October 2012, his consent to the adoption was not required pursuant to Arkansas Code Annotated section 9-9-207 (Repl. 2015). James objected to the petition.

         The court held a hearing on October 19, 2016. At the hearing, the court granted Seth's oral motion to amend his petition to additionally allege that James's consent to the adoption was not required because James had failed to pay child support for one year. At the conclusion of the hearing, the court orally granted the petition. The court noted that the test "stated by the attorneys [is] whether [James] failed substantially, and without justifiable cause, to communicate ...


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