APPEAL
FROM THE FAULKNER C O U NT Y C IRC U IT C O U R T [NO.
23DR-17-775] HONORABLE H.G. FOSTER, JUDGE
Helen
Rice Grinder, for appellant.
McKinney & McKinney, PLLC, by: Jared C. McKinney, for
appellee.
LARRYD. VAUGHT, JUDGE
The
parties in this case, Brittany Cunningham and Bryan
Cunningham, were divorced by an amended decree entered by the
Faulkner County Circuit Court on September 13, 2018. Brittany
appeals from the decree arguing that the circuit court
clearly erred by awarding joint custody. We affirm.
Brittany
and Bryan were married on July 7, 2014. They have one child,
PC, who was born on July 31, 2015. On August 29, 2017,
Brittany filed a complaint for divorce on the basis of
general indignities and sought full custody of PC. In
Bryan's answer, he requested full custody of PC.
At the
divorce hearing, the only issues presented were custody,
visitation, and child support. Brittany testified that before
she married Bryan, she had been married to Brandon Betz and
that they have two boys together. When she and Brandon
divorced in March 2014, they agreed to joint custody, and
they equally split the boys' time and expenses. She said
the arrangement had been working well.[1]
Brittany
testified that after she married Bryan, who also has children
from a prior marriage, he made her joint-custody arrangement
with Brandon difficult. Brittany testified that Bryan treated
her boys differently than he treated his children, and Bryan
accused Brittany of staring at Brandon or trying to stand
next to him at the boys' sporting events and at custody
exchanges. She said that Bryan did not like her to be around
Brandon or a man she was "casual[ly] dating" named
Jeremy McGaugh.
Brittany
also testified that she has been the primary caregiver for PC
since her birth. Brittany said that during the marriage,
Bryan spent much of his time working and did not spend much
time with PC. Brittany said she and Bryan are physical
therapists for the same home-health care company; however,
Bryan works more than she does. She said that since the
parties' separation, Bryan's work schedule has
prevented him from exercising his full visitation with PC and
that he often calls her to keep PC so he can work.
Brittany
stated that she was not opposed to the concept of joint
custody in general but not with Bryan. She complained that
his communication skills were "awful" and that his
failure to communicate caused problems. She said that he
would not give her twenty-four-hour notice of his plans to
exercise visitation and that he ignored her calls and texts.
She also complained that Bryan did not put PC's needs
first, he said "hateful" things about Brittany in
front of PC, he would not give PC a bath after playing
outside, he is not as structured with PC's schedule as
Brittany is, he took PC on a church fishing trip when she was
sick, and he brought her to his work. Finally, she complained
that because Bryan did not exercise all his visitation with
PC during the separation, she did not think he would be able
to keep PC for an entire week. She said he is too focused on
his work and unable to prioritize PC. She testified that if
the parties were given joint custody of PC, they would be
back in court on that issue within three or four months.
Bryan
testified that he originally opposed the divorce and wanted
to save the marriage. He said he and Brittany continued to be
romantically involved as late as November 2017.[2] Bryan stated that
during that same time, Brittany was also romantically
involved with Jeremy, which upset Bryan because he wanted to
be with Brittany and because he did not want Jeremy around
PC. However, at the divorce hearing, Bryan testified that his
primary concern was the safety and well-being of PC.
Bryan
admitted that he works a lot. He said that he was required to
give Brittany the right of first refusal to babysit PC, and
problems arose when he tried to get PC back. Brittany would
not let him pick up PC when he was finished working. He had
to wait to pick up PC when Brittany said he could. Sometimes
Brittany would make him wait until the next day. Bryan
testified that he is a licensed nurse and knows how to care
for PC.
Jeremy
testified that he and Brittany started spending time together
in May 2017 and are romantically involved. Jeremy said that
he and Bryan have had some heated phone calls, which Jeremy
said he understood because Bryan was still married to
Brittany. Jeremy was also questioned about an affidavit
signed by his ex-wife that was filed in support of an order
of protection she sought. He admitted that he had problems
with drugs and alcohol in the past, and he said he last used
methamphetamine in April 2016. He denied cooking meth in his
home as alleged in the affidavit; however, he admitted
ripping the cabinets off the wall and punching a hole in the
wall. He also admitted being arrested in July 2016 for
possession of a methamphetamine pipe and a pistol.
From
the bench, the circuit court found that neither Brittany nor
Bryan were perfect: Bryan had not been reliable in terms of
responding to texts, and Brittany had made questionable
choices. However, the court further found that neither parent
was fatally flawed, that both parents love PC, and that both
parents want what is best for PC. The court found that the
best thing for PC was to maximize her time with both parents;
therefore, the court awarded joint custody with Brittany and
Bryan splitting equal time with PC. The court found that if
there are issues with medical decisions or other issues of
similar magnitude, Brittany would have the ...