Court of Appeals of Arkansas, Divisions I, III & IV
FROM THE MILLER COUNTY CIRCUIT COURT [NO. 46DR-15-245],
HONORABLE BRENT HALTOM, JUDGE
Weber, L.L.P., by: C. David Glass; and Brian G. Brooks,
Attorney at Law, PLLC, by: Brian G. Brooks, for appellant.
Solutions, PLLC, d/b/a/ Riordan Law Firm, by: Deborah Truby
Riordan, Little Rock, for appellee.
J. HARRISON, Judge
Phillip Pace appeals the circuit courts order finding that
it was not in the best interest of the parties child to
modify their joint-custody arrangement. Jill Pace
cross-appeals the denial of her request for attorneys fees.
We affirm the circuit courts order.
July 2015, the circuit court entered a divorce decree wherein
the parties agreed that they would share joint custody of
their child, seventeen-month-old L.P., and that Jill would
receive reasonable child support. The decree provided that
"each party shall have one week on and one week off of
possession of the minor child." In October 2016, Phillip
moved to modify the custody arrangement, alleging that a
material change of circumstances had occurred and requesting
that joint custody be modified so that he would be the
primary custodian with Jill exercising visitation. In March
2017, the court entered an agreed modification order in which
the parties agreed that both were enjoined from the following
a. disturbing the peace of the child or of the other party.
b. hiding or secreting the child from the other party.
c. making disparaging remarks regarding the other party or
the other partys family in the presence or within the
hearing of the child or on any form of social media.
d. discussing any litigation concerning the child in the
presence or within the hearing of the child or on any form of
e. using illegal drugs, drugs for which the parties do not
have a valid prescription within the twelve (12) hours before
or during the periods of possession of or access to the
March 2018, Phillip again moved to modify the custody
arrangement, contending that a material change of
circumstances had occurred since entry of the modification
order. He alleged that Jill had "consistently and
systematically failed to act in the best interest of the
minor child. Moreover, she [has] engaged in conduct that is
harmful to the minor child." Phillip again asked that
joint custody be modified so that he would be the primary
custodian with Jill exercising visitation. He also alleged
that Jill was using or had used illicit drugs recently during
periods in which L.P. was in her care, and he asked that the
court order Jill to submit to drug testing. Jill answered and
denied Phillips allegations; she also accused Phillip of
harassing her by filing multiple motions to modify and asked
for full attorneys fees.
May 2018, the circuit court ordered that Jill and her
boyfriend, Sean Lancaster, submit to drug testing. On June
25, the court convened a final hearing on Phillips motion to
modify. Jill testified that since the last modification
hearing in March 2017, she had discontinued her pursuit of an
undergraduate degree and had moved out of her parents house.
She said she now resides in a rental property and shares the
property with two adults and their sixteen-year-old son. She
is currently employed as a long-term substitute teacher for
the Texarkana, Arkansas, Independent School District. She
testified that she and Sean Lancaster were no longer a
couple. She denied that she would ever drink excessively or
use illegal drugs around L.P. She agreed that L.P. was
enrolled at Trinity Christian School in the Pre-K program
(K-3) and stated that early dropoff begins at 7:30 a.m. and
school ends at 3:15 p.m. She said that according to the
school handbook, every toddler needs to be in his or her
classroom by 9:00 a.m. She acknowledged that L.P. had missed
several days of school while in her care (reasons unknown).
She also acknowledged that she had exchanged text messages
with Niraj Krishna in December 2017 and January 2018 and that
some of those texts contained sexually explicit language and
photographs. She also agreed that some texts contained
derogatory comments about her students and references to
drinking and intoxication. She admitted that one text
referenced cocaine being in her system, but she denied that
she had consumed any illegal drugs since January 2017. She
asserted that she had not had any overnight guests with L.P.
present. She did agree that she had invited Niraj to her
house and asked him to bring beer after L.P. was asleep.
cross-examination, Jill confirmed that L.P. had been late to
school (9:15 a.m.) once and that she (Jill) had been late (by
a few minutes) picking up L.P. from aftercare
once. Jill also said that she and Phillip
had briefly reconciled after the last court order was entered
but that he had now remarried after dating his current wife
for four months. Jill agreed that she had difficulties with
Phillips new wife, Lacy. She also admitted that she had
started teaching fulltime in October 2017 but had been
terminated for alleged drug use. She continued working as a
substitute teacher, however, and is employed at Pecan Point
Brewery for the summer. She confirmed that she had taken the
court-ordered drug test and that the results were negative.
Allison Munn, L.P.s K-3 teacher at Trinity, testified via
deposition that she had interacted with both of L.P.s
parents and had seen a lack of consistency in Jills
parenting. Munn also said that Jill had not always paid
attention during parent/teacher conferences and that she had
sometimes failed to send the requisite school supplies with
L.P. Munn observed a difference in L.P.s behavior during the
weeks she is with Jill compared to the weeks she is with
Phillip; according to Munn, "Moms week, [L.P.] is
always exhausted, tired, her behavior is completely
different, she is very defiant[.]" But during Phillips
week, L.P. is "not tired at nap time, she kind of flips
all around because shes not exhausted." Munn agreed
that based on her observations over the past year, she had
developed concern for L.P.s educational development and her
safety and well-being while in her mothers care.
Elizabeth Foster, who teaches the summer program at Trinity,
testified that the school prefers that students be there by
8:15 a.m. Foster said that the week of June 11, when L.P. was
in Jills care, L.P. was dropped off on Monday at 8:00 a.m.,
picked up at 5:15 p.m. from extended care, and did not attend
the rest of the week. During the week that L.P. was in
Phillips care, L.P. was signed in between 7:45 and 8:00 a.m.
each day and picked up between 3:00 and 3:15 p.m. Foster also
testified there was one day that Jill did not provide an
appropriate lunch for L.P. because it did not contain a meat
product, but that during Phillips weeks, L.P. had a
sufficient lunch. On cross-examination, Foster
agreed that L.P. is at an appropriate education level and is
a good student.
Krishna testified that he had used cocaine with Jill once in
December 2017 and again in January 2018. He also said that
there had been times that he had visited Jill at her home
while L.P. was asleep. He confirmed that he had visited
Jills house in the middle of the night when L.P. was
present. He also described one instance in which he met Jill
for lunch and she consumed more than one alcoholic beverage
then left to pick up L.P.
testified that he is a physician and that he lives with his
wife and their three children (his wifes two children from a
previous marriage and L.P.). He said that he believed there
had been a material change of circumstances since the entry
of the last order; he explained that after Jill had moved out
of her mothers house, Jill began exhibiting different
behaviors that he believed negatively impacted L.P. He took
no comfort in the fact that Jills drug test was negative
because "[i]t was done almost six months after she was
doing this" and "[s]hes always had problems."
He also said that he saw behavioral changes in L.P. after
being in her mothers care; specifically, L.P. picks up
sticks and imitates smoking, is tired, and has trouble
readjusting her sleep schedule. Phillip also voiced concern
over two injuries that L.P. has suffered in the past year:
(1) a burn on her hand and (2) a vaginal tear that was
discovered by a worker at Trinity. After the discovery of
the second injury, L.P. was taken to a medical provider, and
according to Phillip, when Jill arrived at the doctors
office, "she appeared to be under the influence of
something" and "smelled of marijuana." Phillip
testified that he was "not really" able to
communicate with Jill in an "adult to an adult type
manner." He expressed concern with the individuals with
whom Jill associates, the roommates in her house, and Jills
general state of mind and "erratic behavior."
Phillip said that he is the more appropriate parent to take
care of L.P.s essential needs and asked that he be
designated the primary custodial parent with Jill exercising
standard visitation. He stated that if he was not L.P.s
primary custodial parent, he was worried about future
conflict because "[w]e cant agree on anything
now." On cross-examination, Phillip admitted that to his
knowledge, Jill had not received any DWIs or been arrested
for using any illegal substance since the last court order.
Regardless, he said that he believes Jill has a problem with
drugs and is actively using drugs.
Pace, Phillips mother, testified that she lives near Phillip
and his family and that during Phillips custody weeks, she
spends Tuesday nights with L.P. Sharon recalled an incident
in December 2017 in which Jill came to Sharons house to pick
up L.P. and Sharon thought she smelled alcohol on Jill.
Sharon called the police, but when they arrived fifteen
minutes later, Jill had left. Sharon expressed concern for
L.P.s safety and well-being while in Jills custody.
Phillip rested, Jill asked that the motion be dismissed,
asserting that no material change of circumstances had been
proved. The court found that "since the entry of the
last order, that there has been a sufficient change of
circumstances on both sides for the court to consider the
best interest of the child at this point in
time under the present custody arrangement, so Ill let you