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Bundy v. Womble

Court of Appeals of Arkansas, Division III

October 3, 2018



          James A. Simpson, Jr., for appellant.

          Glover & Roberts, by: Danny W. Glover, for appellee.

          BART F. VIRDEN, JUDGE.

         Lyndon Tyler Bundy challenges the Woodruff County Circuit Court's decision to award Brooklynn Gage Womble primary custody of the parties' son, BW (born 6/6/14). On appeal, Bundy argues that the circuit court's decision is contrary to the best interest of the child and that the circuit court erred in denying his request for a new trial. We affirm.

         I. Facts

         On February 1, 2017, Bundy filed a petition for paternity in which he argued that he was the biological father of BW, and it would be in BW's best interest for the court to award him primary custody of BW with visitation granted to the mother. Bundy also asked the circuit court to order Womble to pay child support and to change BW's last name to Bundy. On September 6, 2017, the circuit court held a hearing on the matter during which Bundy described his and Womble's relationship history. Bundy explained that when he was twenty years old and Womble sixteen years old, they were in a relationship that resulted in Womble's becoming pregnant with BW. By the time Womble gave birth, the parties had broken up and were not getting along. Bundy testified that although a paternity test shows he is BW's father, Womble had not allowed his name to appear on the birth certificate because she did not like him. Bundy also testified that Womble had allowed liberal visitation with BW since his birth and that at the time of the hearing his visitation with BW was around "fifty-fifty." Bundy explained that if Womble had other plans, wanted more money, or was "mad" she would withhold visitation. Bundy testified that there was no court order for visitation.

         Bundy contended that he was concerned about BW's living situation with his mother in McCrory, namely that Womble, BW and Womble's other child lived in a two-bedroom apartment with Womble's boyfriend, her sister, and her sister's child. Bundy asserted that Womble and her boyfriend had a contentious relationship and frequently argued, which caused BW to be angry, nervous, and reluctant to leave with his mother when she came to pick him up. Bundy also expressed concern that he had noticed that BW was dirty and had a bad odor when he picked BW up from daycare.

         By contrast, Bundy described his three-bedroom home in Bradford, which is about a forty-minute drive from McCrory. Bundy explained that at his home BW would have his own bedroom, toys, a television in his bedroom, and a large yard. Bundy testified that he lives very close to his grandmother, who watches his daughter while he is at work, and that she would also watch BW if he had primary custody. Bundy stated that he works from 7:30 a.m. to 3:30 p.m. Monday through Friday, with twelve holidays off a year.

         Bundy testified that he had not been ordered by the court to pay child support but that he bought clothes, food, diapers, and any other supplies that BW needed. He paid for BW's daycare until Womble was able to get free childcare, and after that, he paid Womble $150 every two weeks. In December 2016, Bundy ceased paying $150 to Womble and instead bought things that BW needed. Bundy testified that at times he had helped Womble pay bills and her car payment "because BW came first."

         On cross-examination, Bundy denied that Womble had ended their relationship when she was seven months pregnant because of his infidelity. Bundy denied that he had referred to a former girlfriend as his "mess around girl," and he admitted that his wife had been pregnant when they married. Bundy denied having cheated on his wife. Bundy admitted that he used a racial slur during a disagreement with Womble about how she had dressed BW.

         Bundy explained to the court that he wanted primary custody to ensure that BW was "more taken care of." Bundy testified that he believed Womble should have visitation and "be a good mom to him and put him above work and everybody else. I want her to prioritize him, as I do." Bundy testified that he did not believe that BW "gets the full amount of attention" living with Womble because BW "wants to be up in your lap, in your face, wants you to play toys with him in the floor[.]"

         Bundy's mother, Delena Little, testified that she often keeps BW in her home and has a very close relationship with him. Little stated that she had been concerned about BW because when he becomes frustrated or things do not go right, he falls to the floor and bangs his head. Little also stated that she had seen Womble smack BW's hand when he was ten months old; and when BW was one year old, she had spanked him. Little testified that when BW was fourteen months old and had refused to sit in the barber's chair, she saw Womble jerk BW's arm and spank him. Little also asserted that on one occasion Womble's apartment had been infested with fleas and that Womble "had to set off bombs to get rid of them. BW was covered in flea bites." Little explained that when she picks BW up from daycare he is "filthy" and "it's normal to pick him up, take him home and bathe him." Little also conceded that children get dirty "at the drop of a hat." Little stated that Womble had allowed her to be in BW's life without a court order "because it fit her schedule and she had other things that I believe were more important to her than BW." Little also stated that Womble "tricked [Bundy] into getting her pregnant."

         Womble moved for dismissal based on a lack of evidence that it was in the child's best interest to award primary custody to ...

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