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Rivers v. DeBoer

Court of Appeals of Arkansas, Divisions IV, I & II

February 27, 2019

KARLEY D. RIVERS APPELLANT
v.
CALEB DEBOER APPELLEE

          APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT [NO. 35DR-16-641] HONORABLE WILLIAM BENTON, JUDGE

          Robinson & Zakrzewski, P.A., by: Luke Zakrzewski, for appellant.

          McKissic & Associates, PLLC, by: Jackie B. Harris, for appellee.

          BRANDON J. HARRISON, JUDGE

         This is a custody case, with a legal twist. Karley Rivers appeals the circuit court's order that switched custody of her minor son, G.D., to his father, Caleb DeBoer. The parents were not married when their son was born. Rivers had custody of G.D. from his birth in 2009 until the court changed that in its 12 October 2017 order. She argues that the circuit court erred by awarding custody to DeBoer because the "proof did not evince a material change in circumstances warranting a custody modification," and the change was not otherwise in G.D.'s best interest.

         The twist is that an interpretive tussle has arisen over how to apply an Arkansas statute addressing custody of children born out of wedlock-and the case law that has dealt with it-to this case's facts and procedural course. Some history will place the parties' dispute, and this court's disagreement over how to decide it, in context.

         I.

         In June 2011, the Arkansas Office of Child Support Enforcement (OCSE) filed a paternity complaint in the Jefferson County Circuit Court. The complaint alleged that DeBoer is the father of G.D., who was born out of wedlock to Karley Rivers in 2009. In the paternity complaint, Alicia Morris, the child's maternal grandmother, was listed as G.D.'s then custodian. DeBoer did not answer the complaint, so OCSE moved for a default judgment.

         It received one, in August 2011, when the circuit court entered a judgment of paternity, determined that DeBoer is G.D.'s father, and required him to start paying child support, among other things. The judgment misidentified Morris (the maternal grandmother) as G.D.'s biological mother but to no ill effect. More to the point, the judgment states, in paragraph 13,

Pursuant to Ark. Code Ann. § 9-10-113 . . . the woman giving birth to the child(ren) of this action, has legal custody of the minor child(ren) until the child(ren) reaches the age of eighteen (18) years unless a court of competent jurisdiction enters an order placing the child(ren) in the custody of another.

         We will say more about this paragraph, and the court's judgment as a whole, in due course. For now, just know that paragraph 13 has a leading role in this appeal.

         No court interventions occurred in the family's lives custody wise, as far as the record shows, for approximately five years after the 2011 paternity judgment was entered. In mid-July 2016, however, DeBoer filed a change-of-custody petition against Rivers (and grandmother Morris). In his "Petition for Change of Custody," DeBoer admitted that the circuit court adjudicated him G.D.'s father in the 2011 paternity case and asked the court to determine that a material change in circumstances had occurred since that time. DeBoer's petition sought primary physical custody of G.D. The father further alleged that "it is currently in the best interest of [G.D.] that custody be placed" with him. Rivers's drug use was the concern in July 2016.

         Rivers responded. She admitted that the court had previously adjudicated DeBoer's paternity, explained that G.D. was residing with Rivers in her mother's home, and otherwise opposed DeBoer's petition. In her counterpetition, Rivers stated that DeBoer had "stated no grounds or any facts or allegations that would indicate a material change in circumstances has occurred." DeBoer responded.

         Months later, in February 2017, DeBoer filed an emergency petition for temporary custody of G.D. because Rivers was in a drug-rehabilitation facility in Florida, which made her unable to care for G.D. A couple of weeks later, Rivers and DeBoer jointly moved to consolidate OCSE's decided paternity case with the pending custody case. The circuit court did so.

         In May 2017, the court held a hearing on DeBoer's custody petition. After receiving testimony from DeBoer, Rivers, DeBoer's employer, and DeBoer's wife, the court continued the hearing until September. During part two of the custody hearing, Rivers called her father and DeBoer's mother to testify. Rivers testified, too. And DeBoer took the stand to rebut some of his mother's testimony; then the parties made closing arguments. The court did not rule from the bench.

         Instead, on 12 October 2017, the court entered a written order finding that the August 2011 default judgment had established DeBoer's paternity of G.D., that DeBoer was fit to raise G.D., and that DeBoer had assumed his responsibilities toward G.D. by providing care, supervision, protection, and financial support. The court also found that "[i]t [wa]s in the best interest of [G.D.]" to award custody to the father. (These findings comport with Ark. Code Ann. § 9-10-113 (Repl. 2015)). Consequently, the court awarded custody to DeBoer and granted Rivers reasonable visitation. The order also noted that to the extent grandmother Morris had made a claim for custody, the claim was abandoned and dismissed. Rivers filed a timely notice of appeal, and here the case has landed.

         II.

         To the main point: did the circuit court err by awarding custody to DeBoer because, according to Rivers, the "proof did not evince a material change in circumstances warranting a custody modification"? A rather common legal question in this court has taken an uncommon turn. This is so because, as the dissent shows, a disagreement has arisen over whether DeBoer had to plead and prove that a material change in circumstances had occurred. More specifically, the issue is whether DeBoer was required to establish that a material change in circumstances had occurred between the time the August 2011 "Default Judgment of Paternity" was entered and when he filed for the change in July 2016. Our dissenting colleagues believe the father was not required to prove such a change because an initial custody determination was not made in the 2011 paternity judgment. In other words, because the custodial provision in the paternity judgment was entered pursuant only to the out-of-wedlock statute, it is not a judicial determination of custody.

         We respectfully disagree with our colleagues on this important facet of child-custody law. What follows is our view of Arkansas law on when the biological father seeking custody of a child born out of wedlock must show a material change in circumstances.

         A.

         The August 2011 Judgment. Did the circuit court's judgment place custody of G.D. with his mother, Rivers? If the judgment placed custody of the child with his mother- and if the judicial determination was a final custodial decision rather than a temporary one- then a legal consequence attaches. The consequence is that DeBoer was required to prove in his 2016 change-of-custody case that a material change in circumstances had occurred since the 2011 paternity judgment was entered.

         Here we return to the paragraph in the court's paternity judgment over which there are competing interpretations:

13. Pursuant to Ark. Code Ann. § 9-10-113, [KARLEY RIVERS], the woman giving birth to the child(ren) of this action, has legal custody of the minor child(ren) until the child(ren) reaches the age of eighteen (18) years unless a court of competent jurisdiction enters an order placing the child(ren) in the custody of another.

         We read paragraph 13 to state that, as of 29 August 2011, Rivers had custody of G.D. until a subsequent court order places him in the custody of another person, or he turns eighteen, whichever event would come first. The authority under which the court initially gave Rivers custody was based on a statute that has been in place since 1987. The court simply exercised its authority under law and entered an enforceable judgment. Because the judgment placed custody of G.D. with Rivers, it is, by definition, the first (initial) custody order. Whether it was a temporary or a final decision then becomes the next pivotal question.

         Revisiting the parties' court papers is valuable here. Each parent seems to have understood that DeBoer had to plead and prove a material change in circumstances when he sought custody of G.D. DeBoer's petition, which we mentioned earlier, included these paragraphs and prayer for relief:

1. By Order of the Circuit Court of Jefferson County, Arkansas, Domestic Relations Division, No. DR-2011-855 . . . Caleb J. DeBoer was adjudicated the father of G.D., minor . . . born out of wedlock to Karley Rivers.
2. In that Order Karley Rivers was granted custody of the ...

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