DESHAWN M. BEARD APPELLANT
JALEN M. BEARD APPELLEE
FROM THE PULASKI COUNTY CIRCUIT COURT, THIRD DIVISION [NO.
60DR-17-3481] HONORABLE CATHLEEN V. COMPTON, JUDGE
D. Files, for appellant.
W. Kamps, P.A., by: David W. Kamps, for appellee.
LARRYD. VAUGHT, JUDGE
Beard appeals a divorce decree entered by the Pulaski County
Circuit Court that awarded DeShawn and her ex-husband, Jalen
Beard, joint custody of their two-year-old son, JB. On
appeal, DeShawn argues that the court erred by awarding joint
custody after acknowledging that Jalen has a history of
domestic violence and that the parties could not productively
communicate. Because DeShawn is appealing from a nonfinal
order, we lack jurisdiction to reach the merits of her
arguments and must dismiss her appeal.
and Jalen were married on August 10, 2015. They separated in
December 2015 while DeShawn was pregnant with their only
child. DeShawn gave birth to JB on May 20, 2016. He was born
prematurely at twenty-six-weeks' gestation. At the time
of the hearing giving rise to this appeal, he was two years
old. JB suffers from developmental delays and physical
limitations related to his prematurity.
several attempts to reconcile and subsequent breakups,
DeShawn and Jalen separated for the final time in September
2017. Jalen filed for legal separation and joint custody, and
on February 28, 2018, the court entered an agreed order of
separation that provided for joint custody. On April 19,
DeShawn filed a pro se motion to modify that agreed order,
and on September 27, 2018, she filed a counterclaim for
divorce. Jalen amended his complaint to also request a
divorce, and the matter proceeded to a hearing on February 7,
hearing, both parties testified, as did Jalen's mother
and stepfather, and two witnesses testified on behalf of
DeShawn. The parties did not dispute that Jalen has a history
of domestic violence against DeShawn. Jalen admitted
assaulting DeShawn on two occasions, and DeShawn testified to
a third physical attack that caused their final separation.
She also described an incident when he broke her door frame
while attempting to kick in her door. The court also heard
testimony about several threats Jalen had made on social
media about DeShawn.
was ample evidence that the parties cannot productively
communicate. Both parties and several other witnesses
testified that DeShawn and Jalen have a very tumultuous
relationship and that they could not get along. The record
reveals that Jalen and DeShawn ceased having any sort of
direct contact approximately six months prior to the hearing.
They were able to communicate with each other only through
Jalen's parents and other intermediaries.
court entered a divorce decree on February 22, 2019. In that
decree, the court granted the parties joint custody of JB and
continued the same visitation schedule as set out in the
order of separation. In its decree, the court ordered Jalen
to successfully complete an anger-management course and
attend Alcoholics Anonymous meetings, and it ordered Jalen to
submit proof of compliance with those mandates. It further
ordered the parties to start communicating with each other,
and it ordered Jalen to take primary responsibility for
parenting JB during his visitation time with the child. This
was because Jalen had previously relied heavily on his
parents to provide care for JB. Finally, the order stated
that Jalen's violence and threats toward DeShawn must
stop. The divorce decree set a "Review Hearing" for
December 4, 2019.
now brings this appeal challenging the circuit court's
award of joint custody. Unfortunately, we lack jurisdiction
to address the merits of DeShawn's arguments because she
is appealing from a nonfinal order. Although neither party
raises the issue, the question of whether an order is final
and subject to appeal is a jurisdictional question that
appellate courts have a duty to raise sua sponte. Reed v.
Ark. State Highway Comm'n, 341 Ark. 470, 472-73, 17
S.W.3d 488, 490 (2000).
Gilbert v. Moore, the Arkansas Supreme Court dealt
with the finality of an order awarding custody of a child,
and it explained that Rule 2(d) of the Arkansas Rules of
Appellate Procedure-Civil allows for the appeal of a
"final custody order" but that appellate courts
must determine finality based on whether "the issue of
custody was decided on the merits and the parties have
completed their proof." 364 Ark. 127, 129, 216 S.W.3d
583, 585 (2005). In subsequent cases, the Arkansas Supreme
Court and the Arkansas Court of Appeals have both applied
this test, focusing on whether the order being appealed fully
decided the issue of custody on its merits or contemplated
the introduction of further proof. See Ark. Dep't of
Human Servs. v. Denmon, 2009 Ark. 485, 346 S.W.3d 283.
the divorce decree awarding joint custody clearly anticipates
additional proof and a follow-up hearing. The court
specifically ordered Jalen to "provide written
proof" of his completion of an anger-management course
and his attendance at Alcoholics Anonymous meetings. It
further ordered the parties to make certain specified changes
to how they communicate with each other and parent JB. The
court then specifically set a "Review Hearing,"
which we understand to be an opportunity for the court to
assess whether the parties have complied with these
requirements. This procedure is in conflict with the
well-established precedent that a party seeking to modify
custody has the burden of showing a material change in
circumstances. Rice v. Rice, 2016 Ark.App. 575, at
5, 508 S.W.3d 80, 84. Here, the divorce decree explicitly
requires the parties to change their current ...