Case v. Van Pelt

Page 568

          APPEAL FROM THE LONOKE COUNTY CIRCUIT COURT [NO. 43DR-15-887], HONORABLE JASON ASHLEY PARKER, JUDGE

         Taylor & Taylor Law Firm, P.A., Little Rock, by: Andrew M. Taylor and Tasha C. Taylor, for appellant.

          Lightle, Raney, Streit & Streit, LLP, by: Jonathan R. Streit and Elizabeth M. James, for appellee.

         OPINION

         ROBERT J. GLADWIN, Judge

          Samantha Case appeals the Lonoke County Circuit Court’s decision to change joint custody of the parties’ two-year-old son to primary custody in appellee Alexander Van Pelt (Alex). Samantha argues that the circuit court erred by entering a default judgment against her and by finding that a material change in circumstances had occurred. Alex concedes that the circuit court’s decision was on the merits and that the order was not a default judgment. However, he contends that the circuit court properly found a material change in circumstances and modified custody. We affirm.

          I. Statement of Facts and Procedural History

          Alex filed a paternity action against Samantha in November 2015 alleging that Samantha had given birth to their son earlier that month and that visitation and communication had been denied him since the child’s birth. He sought DNA testing and joint custody. Samantha stipulated that Alex is the father, opposed his request for joint custody, and asked that his visitation be supervised in the beginning.

          At the hearing on January 21, 2016, it was revealed that Alex and Samantha had lived together when Samantha became pregnant, but they broke up when Samantha told him she had cheated. A week after she moved out, Samantha moved in with her new boyfriend, Chris Case. Chris had been present when Samantha gave birth, and Samantha admitted that she had done her best to exclude Alex. She said that it would have been reasonable for Alex to believe that she was pregnant with someone else’s child. She also said that either her parents or Chris’s grandparents watched the child while she worked. She said that she contacted Alex about their son only after he had served her with the paternity action. When asked if the court were to order that she could not cohabit with Chris, she said that she would move out and that it was her plan to move in to her own place.

          On February 2, 2016, the circuit court filed a temporary order declaring that Alex is the child’s father and ordering joint legal custody with Samantha as the primary custodian. Alex was awarded visitation every other weekend as well as a midweek overnight visit. The order provided that should Samantha use a child-care provider other than her parents, she "shall first give [Alex] or his parents the right of first refusal[.]"

          On November 13, 2016, Alex filed a motion for contempt and to modify the temporary order. He claimed that Samantha had violated the order by refusing him the right to keep his son while she was working on November 8 and 9. He further alleged that his hours at Remington were from 7:00 a.m. to 3:00 p.m., and Samantha worked there from 3:00 p.m. until 11:00 p.m. He claimed that he had been keeping their son every day during the hours that Samantha worked since July 5, 2016. He alleged that Samantha would retrieve the child every night at midnight, and he asked that the child be allowed to sleep through the night at his home and be delivered to Samantha in the morning.

          Samantha responded with a motion to clarify, stating that she had married and believed that the circuit court had not meant for the right of first refusal to apply to stepparents. She also claimed that her work would change to the day shift in January 2017, and she planned for her new husband to take care of the child during that time. Alex responded with a motion for sole custody.

          At the hearing on February 27, 2017, Alex said that instead of moving away from Chris as Samantha had testified, Samantha married Chris in February 2016. Alex said that he had tried to retrieve the child from Chris’s grandparents, the Andersons, one night in November 2016 when Samantha had left the child with them while she was at work. The Andersons would not allow Alex to take his child. He claimed that this was in violation of the temporary order. He also complained that Samantha retrieved the child each night at midnight, which Alex felt was not good for the child. He said that Samantha’s work schedule had changed since he filed his motion, but she failed to communicate with him or his mother, who had made herself available each day to coordinate visitation exchanges. He alleged that Chris had sent him messages and videos on Facebook that showed his son boxing and the statement, "He’s not going to be a punk like you." Alex said that Chris needed to take anger-management classes because he had "bowed-up" at him in the presence of the child. He said that when Chris would deliver the child for visitation, the child’s clothes were too small; he was dirty, hungry, and thirsty; and he usually had dirty feet.

          Chris said that he had sent Alex messages on Facebook and that he had sent some messages and texts to Samantha’s mother that contained foul language and derogatory statements. He admitted that he had written and said some "not-very-nice things." He said that he had been responding to an attack by Samantha’s mother and to harassment by Alex, who had been photographing his house. He said that he did not like Alex and did not know Alex or his family. He denied sending the child dirty or hungry to Alex’s house. He said that he watched the child during the day from 6:00 a.m. until around 2:00 p.m., when he takes the child to the Van Pelts’ house.

          At the conclusion of Alex’s case, the circuit judge stated in part,

That’s what I do because I don’t like rights of first refusal. I don’t like them at all, but I didn’t like what was going on between the parties then. I don’t like what’s going on with the parties now. I mean, there’s just so much bad blood between everybody involved. And that’s [Chris] up there on the witness stand. He’s lucky he’s not in jail. I get that there’s an attitude from everybody involved. I don’t know what’s going on. I understand [Alex] has issues with [Chris]. I understand that. I understand that [Samantha] has got issues with everybody too. I mean, it’s just so much going around. I mean, the only thing I can do is, is that it’s apparent that [Chris] has been providing care. Nobody’s shown that there’s been any problem during this time.

....

Let me finish with my ruling, okay? A kid at this age doesn’t need to be taught boxing. But I know a two-year-old goes through stages. I can’t say whether it’s him or not, but, I mean, teaching a kid to box and hit a bag is not appropriate at that age because a 16-month-old doesn’t know the difference between a good hit and a bad hit. I mean, a kid does what a kid is told or shown, and I just don’t think [the child] knows at this age what a good hit and a bad hit is. But I’m just telling you from what I’ve seen and you’ve put on your case, Ms. Skarda, is I don’t see enough there not to let him be a caregiver for the child. I don’t know about the Andersons. But at this time, I’ve got concerns with his attitude on the stand. He thought it was a game. I agree with you. I saw issues with it.

          Following the hearing, Alex filed a supplemental motion on March 2, 2017, reasserting his request for a change of custody and asking that Samantha be held in contempt and ...