FROM THE PULASKI COUNTY CIRCUIT COURT, THIRD DIVISION [NO.
60DR-16-971] HONORABLE CATHLEEN V. COMPTON, JUDGE
S. Tschiemer, for appellant.
a one-brief appeal. In it, appellant Marcus Townsend appeals
a Pulaski County Circuit Court order modifying a custody
determination registered here but made by a Hawaiian court.
On appeal, Marcus first argues that we should dismiss the
case because the summons was defective; thus, the circuit
court did not have personal jurisdiction over him. He next
argues that even if the circuit court had personal
jurisdiction over him, it did not have jurisdiction to modify
the decree under the Uniform Child Custody Jurisdiction and
Enforcement Act (UCCJEA). We affirm in part and reverse in
March 10, 2016, appellee Dorian Townsend petitioned the
Pulaski County Circuit Court to register a divorce decree
from the state of Hawaii. The decree divorced her from her
then-husband, Marcus and awarded her custody of the
parties' three minor children, set child support, and set
a visitation schedule. At all times during this case, Dorian
and the children lived in Arkansas, and Marcus lived in
Hawaii. Dorian's counsel mailed a copy of the notice,
petition, and exhibits to Marcus by certified mail with
return receipt and restricted delivery, and Marcus received
them on March 29, 2016. Dorian's counsel filed proof of
service on April 26, 2016.
never responded, and an order was entered June 8, 2016,
registering the decree. On June 17, 2016, Dorian filed a
motion for contempt alleging that contrary to the decree,
Marcus was not allowing her to contact the children while
they were in Marcus's care. On June 30, 2016, Dorian
filed a motion to modify visitation to allow her to
communicate with her children at least once a day when the
children are with Marcus. She alleged discord between the
parents as the material change in circumstances. Marcus did
not respond to either of these motions.
hearing was held on January 5, 2017. Dorian was represented
by counsel, and Marcus appeared in person, pro se. He
specifically stated he was there by special appearance and
moved to dismiss the case for lack of jurisdiction. The court
denied the motion. After the hearing, the circuit court
modified the decree, ruling that the parents may have
electronic contact with the children at least once a day
while the children are in the care of the other parent. The
court also ordered that, going forward, the parents would
freely share medical information with one another and would
immediately notify the other of any medical events involving
the children. Marcus timely appealed.
the second time this case is before us. We had initially
remanded it to settle and supplement the record with a copy
of the summons, if any, issued with the petition for contempt
or motion to modify visitation. Townsend v.
Townsend, 2018 Ark.App. 75. Marcus has now tendered a
substituted brief and a supplemental record that included a
summons issued by the Pulaski County clerk on July 1, 2016.
appeal, Marcus first argues that the trial court lacked
personal jurisdiction due to a defective summons. He alleges
the summons is defective because it said that he had only
twenty days to respond, and not thirty, as provided in
Arkansas Rules Civil Procedure 4(b) and 12(a).
Rule of Civil Procedure 4(b) provides that a summons shall
state, among other things, "the time within which these
rules require the defendant to appear, file a pleading, and
defend." Arkansas Rule of Civil Procedure (12)(a)
provides that "[a] defendant shall file his or her
answer within 30 days after the service of summons and
complaint upon him or her." A summons that provides an
incorrect number of days within which the defendant must file
an answer after service of the summons is defective and will
deprive the circuit court of jurisdiction over a defendant.
Earls v. Harvest Credit Mgmt. VI-B, LLC, 2015 Ark.
175, 460 S.W.3d 795.
argument, Marcus repeatedly points to the notice for the
registration of the divorce decree, and not the summons, to
argue that the summons is defective. After settling the
record, however, we hold that there was, in fact, a correct
summons that stated Marcus had thirty days to respond. The
summons was issued by the clerk of the court the day after
Dorian had filed her motion for contempt. The record also
contains an affidavit of service from a personal-process
server averring that Marcus was served by "delivering a
true copy of the SUMMONS; VERIFIED PETITION FOR CONTEMPT
CITATION; NOTICE OF HEARING; MOTION TO MODIFY VISITATION; to:
MARCUS LASHUN TOWNSEND" on September 28, 2016. Marcus
did not change his argument with the settled record. On this
point we affirm.
second point on appeal is that the trial court lacked
authority to modify the decree. As previously noted, Dorian
correctly registered the decree in Pulaski County following
the process set forth in the UCCJEA codified at Arkansas Code
Annotated section 9-19-305 (Repl. 2015). The order
registering the decree was entered June 8, 2016, and Marcus
does not argue that it was done so improperly. Instead, he
argues that the court did not have the authority to modify
the decree. Arkansas Code Annotated section 9-19-203 provides
Except as otherwise provided in § 9-19-204,
court of this state may not modify a child-custody
determination made by a court of another state unless a court
of this state has jurisdiction to make an initial
determination under § 9-19-201(a)(1) or (2) and:
(1) the court of the other state determines it no longer has
exclusive, continuing jurisdiction under § 9-19-202 or
that a court of this state would be a more ...