Deshawn M. Beard v. Jalen M. Beard

2019 Ark. App. 537

• Court: Court of Appeals of Arkansas
• Decided: November 13, 2019
• Status: Published

Opinion

Cite as 2019 Ark. App. 537 Digitally signed by Elizabeth ARKANSAS COURT OF APPEALS Perry Date: 2022.08.08 09:58:53 DIVISION I -05'00' No. CV-19-501 Adobe Acrobat version: 2022.001.20169 Opinion Delivered November 13, 2019

DESHAWN M. BEARD APPEAL FROM THE PULASKI APPELLANT COUNTY CIRCUIT COURT, THIRD DIVISION [NO. 60DR-17-3481] V. HONORABLE CATHLEEN V. COMPTON, JUDGE JALEN M. BEARD APPELLEE DISMISSED

LARRY D. VAUGHT, Judge

DeShawn 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.

DeShawn 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. After 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,

2019.

At the 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.

There 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.

The 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

2 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.

DeShawn 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).

In 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

3 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.

Here, 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 circumstances and appears to make

its joint-custody award conditional on proof of those changes. As such, the court’s divorce

decree is not a final award of custody because it depends on proof yet to be introduced.

Dismissed.

GRUBER, C.J., and WHITEAKER, J., agree.

Jason D. Files, for appellant.

David W. Kamps, P.A., by: David W. Kamps, for appellee.