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Major v. Penney

Court of Appeals of Arkansas, Division IV

May 9, 2018

APRIL MICHELLE MAJOR APPELLANT
v.
MICHAEL DAVID PENNEY APPELLEE

          APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT [NO. 23DR-09-41] HONORABLE CHRIS CARNAHAN, JUDGE AFFIRMED

          Taylor & Taylor Law Firm, P.A., by: Andrew M. Taylor and Tasha C. Taylor, for appellant.

          Jessica Steel Gunter, for appellee.

          RITA W. GRUBER, Chief Judge

         April 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.

         April 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.

         The 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 due."

         On 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.

          April 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.

         April 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.

         The 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.

         After 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.

          On January 30, 2016, April signed a temporary guardianship giving Pam and Danny Brown[1] 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 ...


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