APPEAL
FROM THE LONOKE COUNTY CIRCUIT COURT [NO. 43DR-15-887]
HONORABLE JASON ASHLEY PARKER, JUDGE.
Taylor
& Taylor Law Firm, P.A., 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.
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 that Chris be
declared unfit to provide child-care.
An
agreed order was filed on May 30, 2017, stating that the
parties had mediated the case on March 6, 2017, and agreed
that they would have "true joint custody" of the
child, rotating physical custody on a weekly basis. The
parties agreed that they would jointly make all major
decisions and would engage in good-faith communications.
Neither party was ordered to pay child support, and they were
ordered to split the cost of the child's health
insurance. The parties also agreed to talk privately for five
minutes on Sunday evenings. Finally, the parties agreed to
participate in coparenting ...