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Jones v. Jones

Court of Appeals of Arkansas, Divisions II, III, IV

December 11, 2019

Angela JONES, Appellant
v.
John E. JONES, Jr., Appellee

Page 832

          APPEAL FROM THE MARION COUNTY CIRCUIT COURT [NO. 45DR-17-171], HONORABLE GORDON WEBB, JUDGE

         Lancaster & Lancaster Law Firm, PLLC, Benton, by: Clinton W. Lancaster, for appellant.

          One brief only.

         OPINION

         PHILLIP T. WHITEAKER, Judge

          The 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.

          Angela 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.

          After the separation, the parties began a series of litigation that included jurisdictions in two states.[1] 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.

          While 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.

          Although 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.

         With the benefit of counsel, Angela subsequently filed a motion to set aside the divorce decree under

Page 833

Rule 55 of the Arkansas Rules of Civil Procedure.[2] 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.[3]

         John 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.

          The 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 custody.

          We 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 ...


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