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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 Courts
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 courts 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 childs 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 elses
child. She also said that either her parents or Chriss
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 childs 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 Chriss 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
Samanthas 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, "Hes 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 childs 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 Samanthas 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 Samanthas 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 Alexs
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 Alexs case, the circuit judge stated in part,
Thats what I do because I dont like rights of first
refusal. I dont like them at all, but I didnt like what was
going on between the parties then. I dont like whats going
on with the parties now. I mean, theres just so much bad
blood between everybody involved. And thats [Chris] up there
on the witness stand. Hes lucky hes not in jail. I get that
theres an attitude from everybody involved. I dont know
whats going on. I understand [Alex] has issues with [Chris].
I understand that. I understand that [Samantha] has got
issues with everybody too. I mean, its just so much going
around. I mean, the only thing I can do is, is that its
apparent that [Chris] has been providing care. Nobodys shown
that theres been any problem during this time.
....
Let me finish with my ruling, okay? A kid at this age doesnt
need to be taught boxing. But I know a two-year-old goes
through stages. I cant say whether its 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 doesnt 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 dont think [the
child] knows at this age what a good hit and a bad hit is.
But Im just telling you from what Ive seen and youve put
on your case, Ms. Skarda, is I dont see enough there not to
let him be a caregiver for the child. I dont know about the
Andersons. But at this time, Ive 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 ...