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Goodman v. Goodman

Court of Appeals of Arkansas, Division II

February 6, 2019



          F. Mattison Thomas III, for appellant.

          Stone & Sawyer, PLLC, by: Phillip A. Stone, for appellee.

          Gruber, C.J., and Hixson, J., agree.


         Appellant appeals from the circuit court's order denying his motion for change in custody and limiting his visitation with J.G., born 04/25/2001, and C.G., born 05/31/2005. On appeal, he argues that the circuit court abused its discretion (1) in denying C.G.'s clear desire to live with her father, absent a report or recommendation from the ad litem about why that desire should not be met; (2) in failing to require a report detailing why the ad litem's recommendation was anything other than the expressed intent of his client as required by Administrative Order No. 15; and (3) for withholding visitation as punishment for contempt. We affirm.

         The parties were divorced by decree entered October 28, 2014. By agreement, the parties were awarded joint custody, with appellee being primary custodian of the minor children. The circuit court specifically found that contrary to appellee's assertion, there was "no credible evidence to show that the children's health or welfare would be jeopardized by the [appellant] exercising unsupervised visitation." Appellant was awarded unsupervised, non-standard visitation due to the circuit court's finding that it was "not feasible to order visitation as per its standard guidelines" as it "seems unreasonable to expect these children to be required to endure a round trip from Union County, Arkansas, Arkansas, [sic] to Houston, Texas, every other weekend."

         Appellee filed a petition for modification of decree on June 8, 2015, alleging that appellant refused to provide the children's whereabouts and contact information to appellee during their visits with appellant. In her prayer for relief, appellee asked the circuit court to modify appellant's summer visitation. Appellant responded, denying appellee's assertions and seeking denial of her petition on June 9, 2015. On the same date, appellant filed a counterclaim, a motion for contempt, a motion to change child support, and spousal support and motion to modify summer visitation. In part pertinent to this appeal, appellant asserted that appellee "on numerous occasions refused to travel the distance of one half between, Houston, Texas and El Dorado, Arkansas to exchange the children" and was not allowing visitation as ordered. He also sought modification of the dates of his summer visitation to prevent conflict with the children's first week of school. Appellee answered, denying appellant's assertions and seeking denial of appellant's counterclaim and motions on July 7, 2015.

         On June 28, 2016, appellee filed a petition for contempt of court alleging in pertinent part that appellant had failed to return the minor children to her custody on June 26, 2016. Appellee filed a petition for immediate custody on July 5, 2016, asserting that appellant had yet to return the children to her custody. Appellant answered appellee's petition for immediate custody on July 7, 2016, admitting that he had not yet returned the kids, but averring that he had failed to do so because of his intent to file a petition to change custody, which had been filed at the time of the filing of his answer to appellee's petition. He answered appellee's contempt petition on the same date, admitting that he had not returned the children, but denying that sanctions were appropriate because he had filed a petition to change custody.

         In appellant's July 7, 2016 motion for change of custody, he asserted that there had been a change in circumstances based on

belief by [appellant] that the parties' minor children, while living with [appellee] do not have adequate food in the home of [appellee], that [appellee] does not focus on the care of the children, neglects the children and shows favoritism to children other than the children in the case at bar and that there is in the home of [appellee] a child who presents a risk to the other children, in that another half sibling in the home of [appellee] has recently been engaged in criminal activity, and that there is living in the home of [appellee], with [appellee]'s oldest child (a child of a previous relationship) a girlfriend who is not related to [appellee] by blood or marriage.

         Attached was an affidavit from J.G. stating that he "earnestly desire[d]" to continue to be allowed to live with his father with visitation to his mother.[1]

         Also attached to the motion was an affidavit from C.G. stating her "sincere desire and belief" to have custody changed to appellant. She stated therein the following reasons for her desire for a change in custody: (1) she "[did] not feel loved" in appellee's home; (2) appellee "spends more time" with others than with her and J.G., after which she goes to bed; (3) appellee "never has any money with which to provide for [C.G.'s] needs"; (4) C.G. "[does] not feel safe" around her half-brother who had "on multiple occasions gotten physically violent with her" and appellee says "there is nothing she can do about it"; and (5) her maternal grandmother is "abusive toward [her] and [J.G.] verbally[, ]" telling them they are "bad kids" and "useless, worthless and that [they] don't love [appellee] if [they] love dad." Appellee answered the motion on July 11, 2016, denying all material allegations therein and asserting that (1) appellant had come before the court with unclean hands, (2) he was only seeking custody to avoid payment of child support; (3) she had always been the children's primary caregiver; and (4) appellant had been physically abusive to her and the children during the marriage.

         A hearing in the matter was held on July 13, 2016. On July 14, 2016, the circuit court filed a letter, which was virtually identical to its order entered on August 8, 2016. The circuit court found that appellant had remedied "most of the issues" raised by appellee in her motion since the time of its filing; however, it did order appellant to provide appellee with the whereabouts and contact information for the children when in his custody. While it modified appellant's visitation to accommodate the start of the El Dorado School District school year, it disallowed appellant to exercise his second period of summer visitation for the summer of 2016-unless agreed to by the parties-due to appellant's earlier failure to return the children to appellee's custody for a period of three weeks. It ...

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