FROM THE FAULKNER COUNTY CIRCUIT COURT [NO. 23DR-09-41]
HONORABLE CHRIS CARNAHAN, JUDGE AFFIRMED
& Taylor Law Firm, P.A., by: Andrew M. Taylor and Tasha
C. Taylor, for appellant.
Jessica Steel Gunter, for appellee.
W. GRUBER, Chief Judge
Major appeals from an order of the Faulkner County Circuit
Court granting Michael Penney's motion for change of
custody. April contends that the circuit court erred in
finding that there was a material change in circumstances
sufficient to warrant a change in custody and that a change
in custody was in the best interest of the children. We
disagree and affirm.
and Michael were married on March 22, 2007. The parties have
two children, T.P., born November 1, 2006, and P.P., born
July 9, 2008. The parties were divorced by an order of the
Faulkner County Circuit Court on March 19, 2010. The order
incorporated a written custody, support, and
property-settlement agreement, which contained the following:
10. The parties shall have joint custody with Wife retaining
primary custody of the parties' minor children, subject
to Husband's visitation privileges. Both parties are in
the military and will be deployed in 2010 and/or 2011. When
the residential parent is away for extended time, the other
parent will be the primary caregiver. If for some reason the
other parent cannot provide the childcare, then care shall be
the responsibility of Barbara Penney, paternal grandmother or
Lori Scroggins, maternal grandmother.
agreement further provided that Michael's visitation
would be determined according to whether the parties resided
in the same county or different counties. If the parties
resided in the same county, Michael would have the children
every other week. Otherwise, Michael's visitation would
be every other weekend with an extended period in the summer
and specified holiday visitation. The order provided that
child support would be based on whether custody was
alternated weekly, and it stated that the "parties agree
to enter an Order setting child support when it becomes
January 13, 2015, Michael filed a motion for change of
custody and for contempt. He alleged that there had been a
material change of circumstances since the divorce decree was
entered, specifically stating that April failed to provide
physical, emotional, and financial care for the children; to
provide a stable and wholesome environment for the children;
and to set a proper moral example for the children. Michael
also alleged that April violated the terms of the divorce
decree by exposing the children to overnight stays with
persons with whom she is romantically involved and by failing
to inform him of her current place of residence, employment,
and phone number. A hearing took place on March 21, 2017.
testified that at the time of the hearing she had been in the
Arkansas Army National Guard for almost 19 years and had been
deployed overseas three times, including once to Iraq from
2010 to 2011. She explained that after the parties divorced
in 2010, she lived in Fordyce from May 2010 to May 2015, when
she had to move from her home due to bankruptcy. From 2012 to
2014, April was in nursing school. In January 2014 when the
children were in kindergarten and first grade at Bearden
Elementary School, April signed a temporary guardianship of
her children to Michael's mother, Barbara Penney, in
order for April to finish her final semester of nursing
school. The children were familiar with Barbara as she had
kept them when the parties were deployed. April did not
finish the program because of the strict attendance policy.
She got the children back in June 2014 and then began working
at Camp Robinson doing AFTPs (Additional Flight Training
Periods). April testified that from May 2015 until September
2015, she lived with Laurie and Ricky Scroggins, her mother
and stepfather, in Cleveland, Arkansas.
testified about an incident on July 25, 2015, when she had
been to a bar with a friend. She called a friend, Christopher
Morrow, to pick her up because she was "too drunk to
drive." Morrow took her to a Camp Robinson billeting
room where he was staying with his son. April stated that
Morrow made sexual advances, she told him to stop, and she
slapped him. April and Morrow argued outside, and April
called Eric Brown, who was also staying in a billeting room,
and slept in his room.
children started school in Nemo Vista on August 25, 2015,
where they attended for one month until April had an
altercation with her mother and stepfather. April explained
that on the day of the altercation in September 2015, she had
been cleaning out a trailer on her mother's property to
live in. That evening, April, her boyfriend Eric Brown, her
mother, and her stepfather were drinking on the back porch of
her mother's home. P.P. was at the home during this time,
but T.P. was with a friend. April testified she drank three
"whiskey and cokes." After her mom went inside,
April asked her stepfather a question that made him mad.
April testified that as she started to go inside, her
stepfather came from behind and grabbed her, and a physical
altercation ensued. April recalled that her stepfather threw
her into a glass coffee table, which cut her back. April also
testified that her stepfather hit her in the head with a
shotgun, and he was on top of her punching her in the head.
April stated that police came after a call to 911 and pulled
her stepfather off her. April and her children never spent
another night in the home.
the altercation, April moved to North Little Rock to live
with Sharon Haley, a friend from her National Guard unit. She
lived there from September 2015 to February 2016, and the
children attended school in North Little Rock during this
time. While she lived with Haley, April had Eric Brown meet
the children when they got off the school bus because she did
not trust Haley. April testified that although she had been
in a dating relationship with Eric, they were not dating when
she lived with Haley, and he helped her with the children.
April explained that she had to move out of Haley's home
because Eric called her after school one day to inform her
that it smelled like marijuana.
January 30, 2016, April signed a temporary guardianship
giving Pam and Danny Brown authority over the children's
educational and medical decisions. Pam Brown lived in Bearden
and was a former babysitter of the children. At that time,
April worked at Green Bay Packaging near Morrilton and lived
in Conway with a roommate. She explained that her hours
fluctuated and that she often worked more than 40 hours a
week. She stated that she sent the children to live with Ms.
Brown so they would not have to "keep changing
schools" and that Barbara Penney, with whom she left the
children previously, did not have suitable living
arrangements at the time. While living with Ms. Brown, the
children attended school in Bearden and had improved
attendance. The children lived with Ms. Brown until April
completed her two-week National Guard training in June 2016.
April testified that she saw the children as often as she
could when they lived with Ms. Brown, but she could not
recall how many times. She also testified that she had
communicated daily with them through FaceTime or text on
their iPads. April explained that she did not take the
decision to leave the children with Ms. Brown lightly, but
she felt she did not have a choice because she had a job in
Conway with ...