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Cunningham v. Cunningham

Court of Appeals of Arkansas, Division III

September 25, 2019

Brittany CUNNINGHAM, Appellant
v.
Bryan CUNNINGHAM, Appellee

         APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT [NO. 23DR-17-775], HONORABLE H.G. FOSTER, JUDGE

         Helen Rice Grinder, for appellant.

         McKinney & McKinney, PLLC, Conway, by: Jared C. McKinney, for appellee.

          OPINION

         LARRY D. VAUGHT, Judge

Page 39

          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

Page 40

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. ...


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