Williams v. Williams

          APPEAL FROM THE CARROLL COUNTY CIRCUIT COURT, EASTERN DISTRICT [08EDR-15-124] HONORABLE C. SCOTT JACKSON, JUDGE

          Cullen & Co., PLLC, by: Tim Cullen, for appellant.

          Putman Law Office, by: William B. Putman, for appellee.

          ROBERT J. GLADWIN, JUDGE.

         Shannon L. Williams appeals the Carroll County Circuit Court's 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 court's 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, 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, Doby's lack of supervision caused five severe injuries to JW, three requiring emergency medical care and one resulting in major surgery to JW's 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 Doby's house, JW was walking, and his brothers told Shannon that he had been walking for four days. She also claimed that JW's 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 JW's next doctor's 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 JW's 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 JW's 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 father's house, and a basketball hit his good ankle, which became swollen. She also talked about a trampoline "incident" at Doby's house when JW broke his femur. She said that Doby called her to look at JW's leg, and she took JW to the Berryville ER. JW was "med-flighted" to Arkansas Children's Hospital for emergency surgery. She said that she was concerned that due to JW's fragileness and his medical issues, he needed to be monitored and 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 doctor's 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 JW's 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 JW's 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, JW's speech therapist, described JW's 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.

         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 JW's special needs. Apryl Harmon, the special- education supervisor for Berryville School District, testified that the district therapists would work as a team with any of JW's therapists.

         The trial court ruled that JW would attend school with his brothers in Berryville. Over Doby's objection, the trial court ruled that an attorney ad litem would be appointed, and an order was filed appointing Ryan Blue to represent the boys. On September 28, 2017, Shannon amended her complaint for divorce, alleging eighteen months' separation. Doby amended his counterclaim, alleging adultery and general indignities as grounds and asking that the joint-custody order continue or that he be awarded sole custody.

         At the January 12, 2018 final hearing, the parties stipulated to a property-settlement agreement, which was read into the record. The issues remaining for the court were custody, child support, and visitation. Each party called eight witnesses; each party ...