Court of Appeals of Arkansas, Divisions II, III, IV
FROM THE MARION COUNTY CIRCUIT COURT [NO. 45DR-17-171]
HONORABLE GORDON WEBB, JUDGE
Lancaster & Lancaster Law Firm, PLLC, by: Clinton W.
Lancaster, for appellant.
PHILLIP T. WHITEAKER, JUDGE.
Marion County Circuit Court entered a divorce decree
dissolving the marriage of the appellant, Angela Jones, and
the appellee, John E. Jones, Jr.; settling their property and
debt issues; and awarding custody of their child, I.J., to
John. Angela subsequently filed a motion to set aside the
child-custody portion of the decree, which the court denied.
She appeals the order denying her motion to set aside. For
the following reasons, we reverse.
and John were married in 2012. They have one child, I.J. On
August 13, 2017, Angela alleged that John became drunk and
aggressive; would not allow her to leave with their daughter;
and threatened to kill them. After this incident, Angela and
John separated, and Angela and the child moved to Alabama.
the separation, the parties began a series of litigation that
included jurisdictions in two states. Shortly after moving to
Alabama, Angela sought an order of protection against John
based on the specifics of the August 13 incident. She further
alleged, generically, that John had physically and sexually
abused her in front of I.J. and that he had tried to
physically and psychologically control her, including threats
of suicide. She averred that he was irrational, thought the
world was about to end, and wanted to "put [them]
underground." The Alabama court granted an ex parte
order of protection until November 15, 2017, when it was set
for a hearing.
Angela was in Alabama seeking an order of protection, John
was in Arkansas seeking a divorce from bed and board. He
filed his complaint on October 24, 2017. In it, he pled his
status as I.J.'s primary caregiver, alleging that he was
the fit and proper person to have full custody subject to
Angela's right to visitation. On November 14, Angela
filed for divorce from John in Alabama, alleging that she was
the fit and proper person to have the actual custody of I.J.
On November 15, at the hearing on the order of protection in
the State of Alabama, both John and Angela were served with
the competing divorce complaints.
properly served, Angela did not answer John's complaint
for divorce within thirty days. John proceeded with a hearing
on his complaint for divorce, was granted a divorce, and was
awarded custody by default on January 31, 2018. The next day,
Angela filed a pro se motion to dismiss John's complaint
alleging that Arkansas did not have jurisdiction because she
and John had married and maintained their domicile residency
in Alabama. In response, John moved to strike Angela's
motion to dismiss, noting that it was filed more than
seventy-five days after the service of the complaint and
noting that a divorce had already been entered.
the benefit of counsel, Angela subsequently filed a motion to
set aside the divorce decree under Rule 55 of the Arkansas
Rules of Civil Procedure. She first argued that the decree should
be set aside under Rule 55(c)(1) due to excusable neglect.
She admitted that she had been properly served; that when
served, she promptly provided the papers to her Alabama
counsel; and that she believed the Arkansas case would be
handled because Alabama had primary jurisdiction over the
matter. She maintained that this constituted excusable
neglect sufficient to set aside the award of custody under
Rule 55(c)(1). She also argued that the decree should be set
aside under Rule 55(c)(4) (other reason justifying relief)
because an award of custody involves a determination as to
what is in the best interest of the child, and to allow a
parent to lose custody of a child by default results in a
serious miscarriage of justice. In support of her motion,
Angela attached her petition for the Alabama order of
protection, which detailed her abuse allegations; her Alabama
complaint for divorce; and an affidavit stating that both
proceedings were ongoing.
responded, arguing that Angela was properly served yet failed
to file a timely answer. He further argued that Angela was
bound by the actions of her attorney and had, therefore,
failed to show a mistake justifying the setting aside of the
decree. John offered no response to Angela's Rule
55(c)(4) best-interest argument other than to argue that
there are no Arkansas cases discussing default judgments in
cases in which the best interest of children were involved.
circuit court held a hearing on the motion to set aside
default judgment in which it took testimony from Angela,
which focused primarily on her failure to timely file her
answer and whether her failure constituted excusable neglect.
After hearing this testimony and the arguments of counsel,
the circuit court noted that while it was uncomfortable
determining custody of a child by default, there was no basis
on which to set aside the default judgment. Angela, in this
one-brief appeal, contends that the circuit court abused its
discretion when it refused to set aside the default award of
begin our analysis by recognizing that pursuant to Rule 55(c)
of the Arkansas Rules of Civil Procedure, the circuit court
may, upon motion, set aside a default judgment previously
entered for the following reasons:
(1)mistake, inadvertence, surprise, or excusable ...