Harrison v. Harrison

102 Ark. App. 131, 2008 WL 943915, 2008 Ark. App. LEXIS 285
CourtCourt of Appeals of Arkansas
DecidedApril 9, 2008
DocketCA 07-587
StatusPublished
Cited by10 cases

This text of 102 Ark. App. 131 (Harrison v. Harrison) 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
Harrison v. Harrison, 102 Ark. App. 131, 2008 WL 943915, 2008 Ark. App. LEXIS 285 (Ark. Ct. App. 2008).

Opinions

Karen R. Baker, Judge.

Appellant, Heather Lynne Harrison, appeals from a decision by the Crittenden County Circuit Court finding that appellant failed to meet her burden of proof in establishing that there has been a material change of circumstances to warrant a change in custody. On appeal, she argues that the trial court erred in not finding that it was in the best interest of the minor child to change custody to appellant. We agree and reverse and remand.

The parties were divorced by decree entered February 23, 2004. The parties had one daughter, O.H., born January 22, 2001. Custody of the three-year-old child was awarded to appellee based on the fact that appellant had been involved in a sexual relationship with a man during the pendency of the divorce. In a letter opinion of December 2003, the trial court stated, “An obligation of parenthood is to instruct on morals, mores, traditions, and customs. Setting a poor example in a parent’s own life is failure to properly instruct.”

On July 14, 2005, appellant filed a petition for change of custody alleging that a material change in circumstances had occurred since the original custody determination. Specifically, appellant alleged that appellee was also involved in a relationship with a live-in girlfriend during the parties’ pending divorce. This fact was not known to the trial court at the time of the divorce. Appellant also filed a petition for contempt alleging that appellee failed to allow appellant her weekday visitation. In response, appellee filed a counter-petition for modification of the divorce decree asserting that because the needs of the minor child had increased with age and the disposable income of the appellant had increased, a material change in circumstances had occurred since child support was originally set, and child support should be increased to $106 per week.

A hearing was held on the motions on March 7, 2007. Appellee was the first person to testify. He recalled the trial judge rendering its letter opinion in his divorce case. Specifically, he recalled the court stating that an obligation of parenthood is to instruct on morals, mores, traditions, and customs and stating that setting a poor example in a parent’s own life is failure to properly instruct. Appellee was of the opinion that he had “done a very good job to set an example and properly instruct” his daughter. However, he testified that he dated Peggy Houston for four to six months during his pending divorce. He took great measures to hide the fact that they were dating, such as hiding her car when she came to his house. Peggy was around O.H. on one occasion. Appellee testified that he continued to date Peggy until after the divorce was finalized. At that time, he began dating Wendy. Wendy was introduced to O.H. on two occasions. Wendy also had a daughter that was O.H.’s age, so the two children played together. Appellee then began dating Melody Harrison. While they dated, “O.H. was around Melody a great deal.” During this time Melody became pregnant with his child. She was pregnant when he and Melody finally married on October 23, 2004. He also explained that Melody had another child, born outside of marriage, that was seven years old and that lived in the home with O.H. In response to the question of whether it was a proper example for his daughter to be in a situation where someone that he was dating became pregnant before they were married, appellee answered “yes and no.” He stated, “Yes in the fact that it’s taking responsibility for my actions. And no because the child was conceived out of wedlock.”

Appellee testified that he was employed by the City of West Memphis Fire Department. He explained that he worked ten, eleven, twelve, and sometimes twenty-four hour shifts. While he was at work, a number of family members, particularly his mother and his aunt, picked up his children and took them back and forth to school. He also stated that “with my work schedule I guess you could say that a lot of my parenting has been turned over to Melody. Prior to turning it over to Melody, before I married her, my mother did a large part of it, my mother and my aunt.” He also explained that Melody was in contact with appellant constantly and provided her with updates on school, including homework and school parties. Melody volunteered to be O.H.’s room mother at school, and appellant also was present and helped with school parties. He stated that when he was not working, he sometimes picked the children up at school. When he arrived home from work at seven in the morning, he helped get the children ready for school and if there was breakfast to be fixed, he made it. He testified that “usually [Melody] takes them to school. If she’s running late, then I’ll take them some and my mom takes them some.” When he was able to pick O.H. up from school, he did so.

Appellee testified that he objected to appellant having custody of O.H. because he thought appellant did not spend all of her time with the child and he thought she did not make wise decisions about the child. Specifically, it was important to appellee that O.H. be fed a balanced diet. He felt that appellant did not feed O.H. a properly balanced diet. He based this opinion on one occasion when appellant brought the child to him having had only yogurt for dinner. He then stated, “I don’t have any other reason that [O.H.] should not be in the custody of her mother.”

When questioned as to the reason he was awarded custody of their daughter, he responded, “The situation with me getting custody of [O.H.] arose out of the fact that [appellant] was seeing someone else during the time that we were separated and prior to the divorce. In fact, I did the same thing. I don’t believe I told that at the divorce hearing.” He further testified that, “But, yeah, I would guess you’re correct in saying that I asked the court to take custody away from Heather for the very same thing that I was doing at the time and continued to do afterward.”

Melody Harrison, appellee’s current wife, testified that she was not a high school graduate because she was one credit shy of graduating, but she had not had the time to finish the course and obtain her diploma. She stated that she worked at J and T Flash Monday through Friday. She had two children. She was never married to the father of her first child (a daughter). However, she began seeing Darryn Richards when she was four months pregnant with her daughter. When her daughter was three years old, she and the child moved in with Darryn. She and Darryn eventually married and were married for approximately two years. She and appellee began seeing each other in the spring of 2004, and she soon became pregnant with his child (a son). She testified that she was approximately one month pregnant when she and appellee married.

Melody also testified that she and appellant had a good relationship. She kept appellant informed about O.H.’s school activities and the two of them were both room mothers for O.H.’s classroom. She testified that there was no difference in the way she treated her daughter and O.H. She also testified that O.H. and Melody’s daughter got along very well. The two girls were very compatible and enjoyed being together. She testified that appel-lee’s aunt was very helpful in picking up the children from school when both Melody and appellee were at work. Melody testified that she worked from eight to five.

Appellant testified that she learned that appellee had engaged in sexual relationships during the pendency of their divorce only recently.

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Cite This Page — Counsel Stack

Bluebook (online)
102 Ark. App. 131, 2008 WL 943915, 2008 Ark. App. LEXIS 285, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harrison-v-harrison-arkctapp-2008.