Shannon L. WILLIAMS, Appellant
v.
Doby L. WILLIAMS, Appellee
Page 157
APPEAL
FROM THE CARROLL COUNTY CIRCUIT COURT, EASTERN DISTRICT
[08EDR-15-124], HONORABLE C. SCOTT JACKSON, JUDGE
Cullen
& Co., PLLC, Little Rock, by: Tim Cullen, for appellant.
Putman
Law Office, by: William B. Putman, for appellee.
OPINION
ROBERT
J. GLADWIN, Judge
Shannon L. Williams appeals the Carroll County Circuit
Courts divorce decree, which awarded joint custody of their
three children to her and appellee Doby L. Williams. She
argues that (1) the trial court erred in considering she
might move the boys to Ohio as a factor in the custody
decision; (2) the trial court erred by considering her move
to Harrison, Arkansas, as a factor in the custody decision;
and (3) the trial courts decision to award joint custody was
clearly against the preponderance of the evidence. We affirm.
I.
Statement of Facts and Procedural History
The
Williamses were married on November 8, 1997, and Shannon
filed for divorce from Doby on June 10, 2015, alleging a
separation date of May 28, 2015. They have three boys—
DW (born 09/23/2004); RW (born 07/12/2007); and JW (born
07/5/2010). JW was born with cerebral palsy, and he requires
specialized care. Shannon is a registered nurse, having
obtained her degree during the last years of her marriage and
during the parties separation. Doby is a pastor and also
works as a bus driver for the Berryville School District. In
her divorce petition, Shannon asked for temporary and
permanent custody of the boys. Doby counterclaimed for
divorce and also asked for temporary and permanent custody.
The
parties presented to the trial court an agreement for
temporary joint custody on August 27, 2015. Pursuant to that
order,
Page 158
the parties were to agree on a schedule that allowed the
children to spend equal time in the custody of each parent.
On June 12, 2017, Shannon filed an emergency ex parte motion
to prevent Doby from exercising visitation with JW because,
according to her attached affidavit, Dobys lack of
supervision caused five severe injuries to JW, three
requiring emergency medical care and one resulting in major
surgery to JWs femur.
Shannon
alleged that after the femur surgery, JW had another surgery
to remove hardware from his leg. Doby was present for that
May 2017 surgery and postoperative instruction, which
included that JW was not to bear any weight on his affected
leg for six weeks. Shannon claimed that after staying with
her for fifteen days following the surgery, JW stayed with
his father for four days. When Shannon picked up JW from
Dobys house, JW was walking, and his brothers told Shannon
that he had been walking for four days. She also claimed that
JWs bandage had been removed from the wound even though she
had instructed Doby to keep the bandages clean and dry.
Finally, Shannon claimed that Doby had removed the stitches
from the wound even though JW had not had his follow-up visit
with the surgeon.
The
trial court held an emergency hearing on June 20. Doby
testified that he understood that JW was not to bear weight
on his hip or leg for six weeks. He said that there had been
no instructions regarding the incision or stitches and that
the doctor had said the bandage would stay on until JWs next
doctors visit. Doby said that he cared for JW for one day
about eight days following his surgery. Shannon did not give
him instructions that day, and JWs surgical bandages were
still in place. He said that JW did not walk that day. The
second time JW stayed with him was the Wednesday following
Memorial Day, and he picked JW up from therapy and kept him
until Sunday. On this visit, JW wore Band-Aids rather than
the surgical bandages. There were two strings, about an inch
long, at each end of the incision. Doby said that he took the
bandages off when they became loose and did not replace them.
He said that he cut the strings off because JW kept pulling
at them. Doby had believed the stitches were dissolvable and
would fall off anyway. He said that over those few days, JW
would get up a few times, and Doby would have to take him
back to the chair or the bed. Doby said that he did not allow
JW to walk around freely.
Shannon said that she had taken JW to the emergency room (ER)
numerous times after staying with his father and that JW had
never been harmed while in her care. In 2014, she had to take
him to the ER because he was unsupervised at church with his
father. He had fallen face forward out of his walker into
gravel. Another time, JW was with Doby over a weekend, and
there was an incident at a hotel swimming pool when JWs
brothers had to pull him out of the pool after he had fallen
in. She claimed that Doby was not supervising JW. She said
another incident occurred when JW twisted his ankle when he
was with his father at church. Shannon said she had to take
JW to Mediquick in Harrison for x-rays, and a splint was put
on his ankle. While that splint was on, JW was at his
fathers house, and a basketball hit his good ankle, which
became swollen. She also talked about a trampoline
"incident" at Dobys house when JW broke his femur.
She said that Doby called her to look at JWs leg, and she
took JW to the Berryville ER. JW was "med-flighted"
to Arkansas Childrens Hospital for emergency surgery. She
said that she was concerned that due to JWs fragileness and
his medical issues, he needed to be monitored and
Page 159
could not be treated like the other two boys, and Doby did
not give him extra supervision. She asked the trial court to
temporarily change custody until JW was released from
doctors care.
On
cross-examination, Shannon said that the 2014 incident was
before the agreed custody order in October 2015. She said
that this was not JWs first surgery and that he had
undergone two brain surgeries, a Nissen surgery, a G-tube
surgery, and had tubes put in his ears. When questioned by
the court, Shannon said that the parties split visitation by
alternating three days and four days during the week. She
said, "I might have them four days one week and Doby has
them three, and vice versa."
Doby
testified that JW had been sick since birth, and they began
to see it when he was six months old. He said that there had
been times after his surgeries that JW was in his sole care
and custody, and there were never any issues. He said that
they had a trampoline when they had lived together and that
JW would sometimes get on the trampoline without Shannon. He
said that the day JW broke his leg, he had been standing
right there, holding the trampoline and watching JW. He said
that JW was on his hands and knees and his brother was
jumping, which caused JW to bounce up and awkwardly come down
on his feet. Doby said that he called Shannon to come look at
JWs leg, and he had not been trying to hide anything from
Shannon. He said they felt that JW needed to go to the ER,
and there had been no fight between them about his being
negligent.
The
trial court noted that the stitches had been snipped, which
prevented the doctor from removing them as he normally would
have, and there was testimony that JW walked to his mother in
the bedroom eighteen days after surgery. The court stated,
"Fathers parent differently than mothers do. From what I
have heard, Mr. Williams exercises pretty fair care of
[JW]." The court denied the emergency petition based on
insufficient evidence.
At the
temporary hearing on August 8, 2017, Shannon testified that
she wanted JW to do public online schooling for the upcoming
school year, and Doby wanted him to attend the Berryville
School District where the other two boys went to school and
where Doby drives a school bus. Shannon had moved to
Harrison, and she said that if the court wanted JW to attend
a brick-and-mortar school, it was her preference that he
attend Green Forest because it would be convenient to both
parents and because Green Forest had a smaller
student-teacher ratio. She said that JW had difficulty
meeting new people and adjusting to new environments due to
his sensory issues.
Jennifer Fry, JWs speech therapist, described JWs therapy
and sensory issues. She said that she thought JW needed to
continue the maximum amount of therapy possible and that he
responds well to technology. She said that Doby had been
cooperative in getting JW to and from therapy. She also said
that she could communicate with any therapist JW had in a
school setting. Physical therapist Joann Goluch testified
that she had been giving JW therapy for the last four years,
that she worked mainly with Green Forest schools, and that
she would be able to communicate with any public-school
therapist JW might have. She did not think JW had the stamina
to attend school all day, and she had concerns about his
ability to physically navigate at school because of his
tendency to fall. She said that no matter whether it was
Green Forest or another school, she would continue
after-school therapy with him if he could tolerate that much
during the day.
Page 160
Kelly
Swofford, the principal at Berryville Elementary, testified
that the district has a special-education program with two
resource classrooms, a special-needs classroom, and in-house
occupational, speech, and physical therapists. She said to
determine which services a child needs, a conference is held
and an Individualized Education Plan (IEP) is made. Each
child is evaluated, and she was aware that JW would need a
personal aide during the evaluation period. She said that
both DW and RW attend Berryville schools. She said that her
school district could handle JWs special needs. Apryl
...