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Cunningham v. Cunningham

Court of Appeals of Arkansas, Division III

September 25, 2019



          Helen Rice Grinder, for appellant.

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


         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 ...

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