Hudson v. Hudson

419 S.W.3d 34, 2012 Ark. App. 308, 2012 Ark. App. LEXIS 418
CourtCourt of Appeals of Arkansas
DecidedMay 2, 2012
DocketNo. CA 11-1045
StatusPublished
Cited by1 cases

This text of 419 S.W.3d 34 (Hudson v. Hudson) 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
Hudson v. Hudson, 419 S.W.3d 34, 2012 Ark. App. 308, 2012 Ark. App. LEXIS 418 (Ark. Ct. App. 2012).

Opinion

RITA W. GRUBER, Judge.

| ¶ Deanna and Peter Hudson were divorced in October 2005, and Ms. Hudson was awarded custody of their four-year-old daughter. Mr. Hudson, who lived in Tennessee, was awarded visitation that included two months and two weeks each summer. He filed a petition to change custody on August 16, 2010, setting forth concerns that the child’s emotional health and safety had been affected by the situation in her mother’s home, where a violent boyfriend lived with Ms. Hudson. The circuit court entered a temporary order reflecting a September 2010 agreement between the parties, which forbade Ms. Hudson from allowing Joe Chaffee (the boyfriend) to reside in her home while the daughter was present or allow him to contact the child.1 Mr. Hudson was also awarded, during the pendency of his action, additional 1 ¿visitation every other weekend and during school lunch once each week.

After conducting a hearing in January 2011, the court issued a letter opinion denying the change of custody. The court complimented Mr. Hudson for acting in his daughter’s best interest by bringing to light issues of concern and the child’s unhappiness with Mr. Chaffee. The court acknowledged Mr. Hudson’s substantial sacrifice of residing in Mountain Home during the majority of the previous school year and noted the benefit he had received through his visitation time. The court found that Mr. Hudson’s actions had resulted in the prior situation being substantially resolved, and it did not find a significant change in circumstances affecting the child’s best interest or jeopardizing her well being and warranting a change of custody. The court filed a subsequent written order on July 26, 2011. Mr. Hudson raises one issue on appeal, contending that the circuit court erred in finding no substantial change in circumstances sufficient to modify custody. We affirm.

Attached to Mr. Hudson’s petition to change custody was a letter from a Tennessee counselor who had seen the child, M.H., during the summer of 2010 to discuss problems she reported about her mother’s home. Among the reported problems were that she was made to stay outside while taking care of her siblings and that she watched them while her mother and boyfriend fought in the bedroom. According to the report, the daughter believed that her mother had been hit during one fight, after which the mother took the children to the grandparents’ home and the boyfriend threatened to burn the house and kill the dog; the children stayed there for three days and then returned home. The daughter had been very afraid of the boyfriend since that time — worrying while at home, fearing for her safety even |swhile away, and fearing that her house would burn while she slept.

The child explained to the counselor that she was having difficulty in school because no one would help her with school work and because, even on extremely hot days, she had to stay outside while her mother and boyfriend were inside. In mother-daughter telephone conversations during visitations with the father, according to the child, the mother made promises that things would be different at home — but they never were. The counselor had serious concerns about the emotional harm the child experienced in the mother’s home and concluded that there was a possibility the child could be in imminent danger if she were returned.

At the final hearing, testimony was given by the parties; M.H., who was then nine; the assistant principal at her school, Cassie Fowler; and Ms. Hudson’s mother, Vesta Bush. Ms. Hudson2 testified that she also had two young sons: a four year old whose father she married in 2006 and never divorced, despite not living with him for the three years preceding the hearing; and an eight month old fathered by Mr. Chaffee, whom she had not married. She testified that she and Mr. Chaffee began living together in the summer of 2008 but separated in September 2010 shortly after Mr. Hudson initiated court proceedings. She testified that she was afraid of Mr. Chaffee at times, but had not realized how strongly her daughter, who would have picked up on that fear, felt about him and had not realized that she was upset or uncomfortable with him. Ms. Hudson admitted that there had been weekly fighting, arguing, and yelling between the couple in the home when the children were there. She denied that |4the arguments were physical, that Mr. Chaffee threatened her or her children, that he threatened to burn the house or kill the dog, or that she told anyone he had made such threats.

Ms. Hudson testified that she previously had worked from 10:00 p.m. to 6:00 a.m. but in September 2010, around the time that court proceedings were initiated, she began working the 6:00 a.m. to 2:00 p.m. shift. Her four year old was in daycare, and the baby stayed with Mr. Chaffee. M.H. stayed Wednesday and Thursday nights at her maternal grandmother’s, where for five years she had always “spent a night or two,” and the grandmother took her to school Thursday and Friday mornings. M.H. rode the school bus from the home of Ms. Hudson’s friend other mornings and occasionally took the afternoon bus to her mother’s job, but Ms. Hudson usually did the after-school pickup. She said that she had attended every meeting requested by teachers since M.H.’s kindergarten year, was in contact about teacher meetings and progress reports, and usually spent an hour with the child on homework, a schedule that the grandmother also kept.

Ms. Hudson said that her mother had mentioned that M.H. “wasn’t real thrilled about Joe,” but summer visitation was about to begin and Ms. Hudson never discussed it with M.H. Ms. Hudson testified that she could “absolutely abide” by a court order forever prohibiting Mr. Chaf-fee from having contact with the daughter, should one be given, explaining that the couple communicated to transfer the eight month old and met during M.H.’s school hours and that pick-up could also be by Mr. Chaffee’s mother or at her home. Expressing concern about M.H.’s health and the possibility of her becoming diabetic, Ms. Hudson said that M.H. Rusually returned from summer visitation ten to twenty pounds heavier than when she had left.

M.H. testified that she had lived primarily with her mom in Mountain Home since the divorce, first with her stepdad and then Mr. Chaffee, but he could no longer be around her because of an order of protection. She said that there was a lot of screaming and door slamming with him, and one argument was so bad she cried: he slammed the door and yelled and said a bunch of cuss words, and she overheard her mother say to her grandmother that he threatened to burn down the house. She reiterated her mother’s testimony about staying at her grandparents’ house each week, about transportation for school, and about not telling her mother that she was uncomfortable with Mr. Chaffee. She said that she liked seeing friends at her mom’s house, would rather play than watch her brother, and did not like it when he did not listen or when her mother and Mr. Chaffee fought. M.H. said she knew that she would have to move should the court change custody, she had a really good relationship with her Tennessee stepmother and six-year-old sister, there was nothing she did not like about her dad’s house, and she wanted to live with him and visit her mom in the summer.3

Mr. Hudson testified that he lived in Tennessee after his 2005 divorce and always exercised his visitation, which included family activities and summer day camp.

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Bluebook (online)
419 S.W.3d 34, 2012 Ark. App. 308, 2012 Ark. App. LEXIS 418, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hudson-v-hudson-arkctapp-2012.