Dunn v. Robins

2016 Ark. App. 305, 495 S.W.3d 102, 2016 Ark. App. LEXIS 327
CourtCourt of Appeals of Arkansas
DecidedJune 1, 2016
DocketCV-15-972
StatusPublished

This text of 2016 Ark. App. 305 (Dunn v. Robins) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dunn v. Robins, 2016 Ark. App. 305, 495 S.W.3d 102, 2016 Ark. App. LEXIS 327 (Ark. Ct. App. 2016).

Opinion

WAYMOND M. BROWN, Judge

| appellant appeals from the circuit court’s denial of her petition to modify custody of C.R., born 12/13/07. Appellant argues on appeal that the circuit court erred in finding that (1) there was no material change in circumstances and (2) it was not in C.R.’s best interest to live with appellant and her new husband. We affirm.

On May 13, 2009, the circuit court entered an agreed order granting both parties joint custody of C.R., alternating two-week time periods with C.R. All decisions and expenses involving C.R. were to be shared equally and neither party was ordered to pay child support.

On September 10, 2012, the circuit court entered an agreed order finding that a “material and substantial” change in circumstances had occurred justifying modification of the May 13, 2009 custody award. While the parties continued to have Joint custody of C.R., primary legal and physical custody was awarded to appellee.- Appellant was awarded visitation; she was not ordered to pay child support.

| gAppellant filed a petition to modify the agreed custody arrangement on May- 2, 2013, - alleging that “[i]mmediately after” entry of the last order, appellee and his wife' “began a- course of conduct designed to harass [appellant] in' her exercise' of visitation, designed to bréak the parental bond between the [appellant] and the minor child [C.R.] and to frustrate her visitation with the .minor, child.” Accordingly, appellant sought custody of C.R, Appellee responded on May 30, 2013, seeking dismissal of appellant’s petition to modify custody. 1 Appellant answered appellee’s counterclaim denying each and every material allegation therein.

On April 28, 2014, appellant filed an amended complaint adding the allegation that appellee was going through a divorce that was adversely affecting C.R. Appellee responded denying that allegation in his answer filed on May 22, 2014.

A hearing on appellant’s petition to modify custody was held on August 11, 2015. Appellant testified that she originally consented to joint custody with physical custody to appellee because she was “not in good health at the time[,]” and she was not employed, having just completed her associate’s degree. Her health problems were now better. She was a stay-at-home mother. Additionally, appellant had been married since 2013 and her husband was very active in his support of and interaction with C.R. She denied having a drug problem.

| sAppellant asserted that C.R.’s “70 year old grandmother [was] basically raising [C.R.] instead of [appellee]” due to appel-lee’s work schedule and in light of his divorce. She stated that appellee had relied on his ex-wife, Geneva Virginia Hurst, “very much” in raising C.R. because of his work schedule. Since the divorce, appel-lee’s mother kept C.R. “pretty much every day.” She thought appellee’s mother was “great[J” but that C.R. needed to be with her parents. She stated that Hurst encouraged C.R. to call appellant by her first name, had been convicted of stealing appellant’s mail and vandalizing her mailbox, and had confessed to an investigator that “she pretended to [be appellant] and shut [her] electricity off.” Appellant did. not know if appellee knew Hurst was vandalizing appellant’s mailbox.

Appellant further testified that appellee did not communicate with her “very much at all about [C.R.’s] well-being.” Appellee had told her that he did not give C.R. medicine daily as prescribed for her. She believed that appellee had not “fostered” C.R.’s relationship with appellant. She stated that appellee allowed her and C.R. to talk on the phone and gave her the minimum visitation with an extra day per week. She admitted that appellee had “some' stability” and that he “deserve[d] credit” for C.R.’s academic accomplishments.

Appellant’s husband, Alex Francis, testified regarding his relationship and interaction with C.R., which was all positive. Mary Moody, appellant’s friend, testified that things had changed with appellant so that she was healthier and happier. Donna Gay Dunn, appellant’s-mother, testified that appellant’s health problems had improved “[f]or the most -part ... a whole lot” and that Francis loved C.R. Charles Dunn, appellant’s father, testified that appellant had “grown up quite a bit[,]” and while he admitted that he had “suspected” that | ¿appellant was taking his wife’s prescription drugs, having kicked, appellant out of their home at one time because of the suspicion, he stated that he had “apparently” misplaced the drugs.

' Appellee testified that Hurst had been active in helping him raise C.R. during their’marriage. He denied that he encouraged Hurst to vandalize appellant’s mailbox, steal her mail, or shut off her electricity; he denied knowing she was doing these things.. He averred that this conduct by Hurst was one of the circumstances that led to their divorce; however, he did not think Hurst’s “mistake” should bar her from having a relationship with C.R. He denied that he or Hurst had told C.R. not. to call appellant “mother” and stated that when he heard C.R. call Hurst mom, he “tried to put a stop to that.” Though he admitted “badmouthing” appellant to Hurst, he denied that C.R. heard him, stating that there was “absolutely no chance!’ C.R. had heard him.

Appellee admitted that his mother was “pretty much” taking care of C.R. “four days one week and three days the next week[,]” noting that this arrangement was “regular.” During the summer, C.R. stayed with his parents while he worked, but only “an hour, hour and half, tops” during the school year. He denied that C.R.’s prescription was to be taken daily, stating that it was to be taken as needed. However, when presented with the prescription filled July 15, 2015, he admitted that it said daily and that “as needed” was not consistent with taking the prescription daily. He stated that he had “not read [that] prescription before.” He then referred to a September 8, 2010 report stating that the same prescription was to be given “PRN[,]” which he said meant to take as needed. He averred that he did not give C.R. the medication every day because C.R. “gets really bad diarrhea Isbad enough that it- causes accidents” when he does. C.R.’s constipation was “under control pretty much now.”

Though divorced, appellee admitted to having “been out” with Hurst “maybe as many as ten times” since their divorce; however, he denied having plans to reconcile with Hurst. He “absolutely believed he foster[ed] a relationship” between C.R. and appellant, noting his flexibility with visitation and the length of phone calls between C.R. and appellant. He testified that he had done an “outstanding job as a single fatherf,]” noting the various ways that C.R. was essentially a well-rounded young lady. He denied that his work interfered with his ability to raise C.R. He denied that his mother was “raising” C.R., stating that someone had to watch C.R. while he was at work and he “never wanted to use a daycare” because he trusted the care C.R. received from his mother.

Hurst testified to admitting to an investigator that she was taking appellant’s mail from her mailbox; she also ran it over. She denied badmouthing appellant to C.R. She also denied having anything to do with appellant’s electricity being shut off. She testified that she never told appellee about any of her actions against appellant.

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Bluebook (online)
2016 Ark. App. 305, 495 S.W.3d 102, 2016 Ark. App. LEXIS 327, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunn-v-robins-arkctapp-2016.