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Pace v. Pace

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

May 22, 2019

Phillip Granville PACE, Appellant
Jill Coburn PACE, Appellee

Page 285


         Smith Weber, L.L.P., by: C. David Glass; and Brian G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks, for appellant.

         Appellate Solutions, PLLC, d/b/a/ Riordan Law Firm, by: Deborah Truby Riordan, Little Rock, for appellee.


         BRANDON J. HARRISON, Judge

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          Phillip Pace appeals the circuit court’s 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 attorney’s fees. We affirm the circuit court’s order.

          In 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 conduct:

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 party’s 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 social media.
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 child.

          In 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 Phillip’s allegations; she also accused Phillip of harassing her by filing multiple motions to modify and asked for full attorney’s fees.

         On 2 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 Phillip’s 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

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(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.[1] 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.

         On 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.[2] 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 Phillip’s 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 Jill’s 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, "Mom’s week, [L.P.] is always exhausted, tired, her behavior is completely different, she is very defiant[.]" But during Phillip’s week, L.P. is "not tired at nap time, she kind of flips all around because she’s 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 mother’s 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 Jill’s 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 Phillip’s 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 Phillip’s weeks, L.P. had a sufficient lunch. On cross-examination, Foster

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agreed that L.P. is at an appropriate education level and is a good student.

          Niraj 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 Jill’s 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.

         Phillip testified that he is a physician and that he lives with his wife and their three children (his wife’s 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 mother’s house, Jill began exhibiting different behaviors that he believed negatively impacted L.P. He took no comfort in the fact that Jill’s drug test was negative because "[i]t was done almost six months after she was doing this" and "[s]he’s always had problems." He also said that he saw behavioral changes in L.P. after being in her mother’s 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.[3] After the discovery of the second injury, L.P. was taken to a medical provider, and according to Phillip, when Jill arrived at the doctor’s 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 Jill’s 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 can’t 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.

          Sharon Pace, Phillip’s mother, testified that she lives near Phillip and his family and that during Phillip’s custody weeks, she spends Tuesday nights with L.P. Sharon recalled an incident in December 2017 in which Jill came to Sharon’s 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 Jill’s custody.

          After 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

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time under the present custody arrangement, so I’ll let you go ...

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