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Cordell v. Cordell

Court of Appeals of Arkansas, Division III

October 31, 2018



          Ryan C. Allen, for appellant.

          Jeremy B. Lowrey, for appellee.


         Ashley Cordell appeals the Baxter County Circuit Court's order changing custody of the parties' children to appellee Joshua Cordell. The circuit court also found Joshua in contempt for failing to pay Ashley $12, 500 in retirement proceeds pursuant to the parties' property-settlement agreement (PSA) and ordered that Joshua's child-support arrearage and the retirement proceeds he owed be partially offset from Ashley's new child-support obligation. On appeal, Ashley contends that the circuit court erred by changing custody and by failing to require Joshua to pay the amounts he owed. We affirm.

         I. Facts

         Ashley and Joshua were divorced on June 18, 2015, and Ashley was awarded custody of their three children, HC1 (born July 7, 2003), AC (born September 16, 2004), and HC2 (born July 25, 2007). Incorporated into the decree was the parties' PSA providing that Joshua would pay $947 per month in child support, and visitation would be agreed on by the parties. Also, among other obligations, the PSA stated that Joshua had cashed his Eaton retirement account in the amount of $25, 000 and that he would pay Ashley one-half in the amount of $12, 500 no later than 90 days from the date of filing, June 18, 2015.

         On October 4, 2016, Joshua filed a petition to modify custody based on a change in circumstances. Joshua alleged that Ashley and the children were moving to Bryant, Arkansas, with Donnie Ramsey, Ashley's boyfriend. Ashley pled unclean hands and laches and sought dismissal of Joshua's petition.

         A temporary order filed March 2, 2017, reflects that a change in circumstances had been demonstrated that temporarily modified the visitation. The circuit court provided specific instructions regarding visitation exchanges for the parties' children through March 2017 and ordered a paternity test be performed on HC3, a child born after the parties' divorce decree was filed.[1]

         A week after entry of the temporary order, Ashley filed a motion for contempt against Joshua alleging that he was $9042 in arrears on child support, and she asked that Joshua be ordered to pay the arrearage and remain current. She also alleged that Joshua had not paid the $12, 500 owed to her for half of his retirement account under the PSA. She asked that Joshua be ordered to pay her the $12, 500 "immediately."

         At a hearing held June 29, 2017, the parties' three children testified, giving positive statements about both parents. Each child described living in Bryant with their mom and Donnie. HC2, age 9, said that he wanted to live with his dad. He said that when he had been with his dad, he had a wreck on the four-wheeler and had to have surgery on his arm because his elbow had been shattered. He said that it was after midnight when he had wrecked and that he had not been wearing a helmet.

         AC, age 12, testified she did not like Bryant Middle School because she was being bullied. She said her grades were good in both Bryant and Mountain Home. She said she helped HC2 with his homework, and when they were with their dad, he would help with homework. She said that if she lived in a perfect world, she would live in Mountain Home. She said that her mother and Donnie sometimes argued, but not much. She said that she had to skip school to babysit her baby sister, HC3, while living in Bryant. AC said that she was involved in competitive cheerleading and that her dad tried to go to all of her performances. She said that she would rather live with her dad, but she did not want to leave her mom. She said that she had come home from her dad's house with lice on two occasions. She said that she had been in competitive cheerleading in Mountain Home too.

         HC1, age 14, testified that she liked Bryant Middle School and that she had not been bullied. She said that her sister helps HC2 with his homework and that her mother and Donnie did not argue much. She also said that she had to skip school to babysit her baby sister, HC3. She said that she had to blow into her maternal grandmother's, Pam O'Dea's, Breathalyzer when she rode with her. She said that she cheered in competitions and had been doing so for six years. She said that she got lice two times while at her dad's home and that she would choose to live with her mother.

         Ashley testified that she works in human resources for SA Pharmaceuticals and began working there October 3, 2016. She said that she had moved to Bryant the last week of September 2016 and that she had decided to move because she got a better job offer. She was dating Donnie at the time, and he lived in Bryant. She said she was currently married to Donnie, whom she met at a bar in Mountain Home, and that she did not plan to have children with him.

         Ashley said that Joshua had a hard time during the divorce, and that caused him to get a DWI in January 2015 when he had overdosed on prescription medication and tried to leave their house in his truck. She said that Joshua had hit a tree, neighbors called police, and Joshua had been arrested. She said that he spent three days in ICU and was discharged to a psychiatric hospital for a week rather than going to jail.

         Ashley said that she had received the paternity test on HC3 and that Joshua is not the child's father. She said that even though the temporary order required that she have the paternity test done as soon as possible, it had been hard for her to make the time to do it because she worked full time. She said HC3's father is Dan Owens and that she had a relationship with him while she had been separated from Joshua. She said that Joshua had always had known that he was not HC3's father and that after their divorce in June 2015, she and Joshua tried to work things out, so he moved back in October. She said Joshua had known she was pregnant and that the child was not his. After she gave birth in December, Joshua wanted HC3 to be "no different than the other kids." She said that they finally split up in March 2016.

         Ashley said that she and Donnie never argued and that they only had slight disagreements. She said that the children had a good relationship with Donnie and that they felt comfortable with him. She said that she would "absolutely describe him as being active in their lives." She said that she had moved to Bryant for a better-paying job and to provide a better life for her children. She said that their grades had significantly improved, especially HC2's, who is an A and B student now. She said that the girls are in "cheer" for which she pays $255 per month. She said that each season costs $1000 per child for uniforms, shoes, and accessories and that Joshua does not pay for that. She said that the children are currently on ARKids insurance but that her recent pay raise would disqualify them for that program, and she would be putting them on her work insurance.

         Ashley said that she was against the children riding four-wheelers and dirt bikes without adult supervision and without helmets. She described HC2's four-wheeler accident as happening at 2:30 a.m. and said that she was notified when they arrived at the emergency room "roughly at 2:30 in the morning." She said that she was not told about the dirt-bike wreck that happened during spring break until she picked up the children on Friday and saw scrapes all over HC2. She said that he had not been wearing a helmet. She said that she cannot communicate with Joshua about the four-wheeler and dirt bike because he is argumentative.

         Ashley said that cleanliness was an issue at Joshua's house because the children had come home with lice "several times." She said that they knew it is coming from Joshua's house because they did not have it when they went, and they had it when they returned. She said that she wanted the children to continue to reside with her because she took good care of them, she had a very good job, and the children were used to living with her.

         She said that Joshua had been ordered to pay child support and that he was behind $9, 877.99. He was supposed to pay $948 per month, and his garnishment began in September 2016. She asked that he be ordered to pay her the ...

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