FROM THE WOODRUFF COUNTY CIRCUIT COURT [NO. 74DR-17-3]
HONORABLE E. DION WILSON, JUDGE.
A. Simpson, Jr., for appellant.
& Roberts, by: Danny W. Glover, for appellee.
F. VIRDEN, JUDGE.
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.
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.
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.
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.
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
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.
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[.]"
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."
moved for dismissal based on a lack of evidence that it was
in the child's best interest to award primary custody to