Madden v. Madden

424 S.W.3d 360, 2012 Ark. App. 582, 2012 WL 5318899, 2012 Ark. App. LEXIS 709
CourtCourt of Appeals of Arkansas
DecidedOctober 24, 2012
DocketNo. CA 11-1230
StatusPublished
Cited by2 cases

This text of 424 S.W.3d 360 (Madden v. Madden) 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
Madden v. Madden, 424 S.W.3d 360, 2012 Ark. App. 582, 2012 WL 5318899, 2012 Ark. App. LEXIS 709 (Ark. Ct. App. 2012).

Opinion

JOSEPHINE LINKER HART, Judge.

| T Sarah Jean Madden appeals from an order of the Sebastian County Circuit Court changing custody of her now eight-year-old daughter, B.M., to her ex-husband, Aaron Madden. On appeal, she argues that the trial court erred by finding (1) a material change of circumstances, (2) that it was in the child’s best interest to change custody, and (3) failing to consider Aaron Madden’s credibility. We affirm.

Sarah married Aaron on July 11, 2003, and lived with him until they separated on December 8, 2005. B.M. was born on August 30, 2004. While Sarah was married to Aaron, she had custody of two other children who are B.M.’s half-siblings, who, at the time of her mother’s separation from Aaron, were ages four and six. As per their agreement, the parties’ May 5, 2006 divorce decree awarded Sarah custody of B.M. subject to Aaron’s visitation every other weekend and every Wednesday.

|20n April 27, 2010, Aaron filed a petition seeking a change of custody and asking the trial court to find Sarah in contempt for violating the divorce decree. Aaron alleged that Sarah had “abandoned” B.M. by leaving her with Sarah’s parents and was currently cohabitating with a romantic partner in the presence of the minor child when the child went to her residence on “weekend visits.” Further, Aaron alleged that B.M. was not receiving appropriate medical care while in her grandparents’ home, and B.M. lacked a “present, attentive parent to meet her physical, emotional, and educational needs.” He also asserted that Sarah should be found in contempt for her refusal to disclose her true residences. Aaron obtained an ex parte order giving him temporary custody. Sarah did not oppose the order. B.M. remained in Aaron’s custody through the petition’s hearings, which began on April 14, 2011.1

Aaron testified that all the visitation exchanges took place in Van Burén at the home of Sarah’s parents. Sarah was rarely present; he saw her approximately four to six times in a year. In November 2009, he surmised that Sarah no longer lived there. Subsequently, he spoke with David Cole, the father of one of Sarah’s other children, who had also noticed the absence of Sarah at the visitation exchanges. Aaron then discovered from utility records that Sarah had a residence in Bentonville. Ultimately, he concluded that Sarah had left B.M. with her parents, and he sought a change of custody.

Aaron asserted that Sarah left B.M. with her parents for long periods of time when she moved to New York and to Bentonville. He noted that Sarah’s other children were living |3with her parents when he married Sarah. Aaron complained that since their divorce, Sarah had not provided a home for her children and that she had lived away from them for several months at a time. She had also failed to provide health insurance for B.M. as required by the original custody order. By comparison, since his divorce, he never missed a single visit with his child, and he had been “physically and emotionally present” in his child’s life at all times. He noted further that when he had attempted to communicate by telephone with B.M. while the child was in her mother’s custody, he was never successful. Sarah would usually tell him that B.M. was asleep, even when it was 5:30 in the afternoon.

Aaron further testified that he maintained contact with B.M.’s teacher in the preschool program that she attended. He attended all of B.M.’s performances and her graduation, but he did not recall seeing Sarah in attendance. He claimed that he had a close relationship with his daughter in which he not only played with her, but also tended to her physical, medical, spiritual, and academic needs. According to Aaron, B.M. gets along well with his new wife’s children, who are twelve and eleven years old. He also promotes B.M.’s contact with his extended family, which B.M. enjoys. Aaron stated that he had a stable job as a commercial plumber with set hours from 7:00 a.m. to 3:30 p.m., Monday through Friday, with no weekends, overtime, or late hours. He is required to be on call, but that is only one week out of six. His annual salary of $32,000 allows him to provide for B.M. financially. His routine involves picking B.M. up from the local Boys and Girls Club when he gets off from work, making dinner, and helping B.M. with her homework. Aside from the rare instances when he is called out on an after-hours service call — at which point B.M. would be in the care of his |4new spouse — he is physically present in his home anytime his child needs him.

On cross-examination, Aaron admitted that prior to his taking emergency custody of his daughter, she was clean, healthy, and doing well in school. He nonetheless stated that Sarah was not “a good mom,” because she was not physically present and it was B.M.’s grandparents who were taking care of her. According to Aaron, save for the purchase of a single t-shirt, Sarah did not provide any financial support for B.M. during the year he had her pursuant to the ex parte custody order, yet he had paid all his child support. He also allowed B.M. to talk with Sarah by phone at least once or twice a week.

Shannon Davis, B.M.’s first grade teacher, testified that B.M. was an A student, with very good school attendance. Based on her test scores, B.M. was an average student. Davis stated that she got to know both of B.M.’s parents, but Aaron was far more involved in B.M.’s school activities. She stated that B.M. appeared to be a “generally happy child,” who “does not seem to carry any weight or burdens.” Regarding Sarah, Davis stated that she had met Sarah in person, had email contact with her, and did not have any “concerns” about her.

Gabriel Edmonds testified that he married Sarah on December 6, 1997, and they divorced on June 1, 2000. By agreement of the parties, Sarah got custody of M.E.E. He noted that all visitation exchanges took place at his child’s grandparents’ house for at least the last three or four years. According to Edmonds, Sarah was very rarely there — he estimated that he saw her more iii the past year than he had in the previous eleven years combined. He stated that prior to M.E.E. getting her own telephone, communication with his daughter while she was in her mother’s custody was “nearly impossible.” Edmonds asserted that since 2008, Sarah Rhadnot provided a home for M.E.E., and that she refused to tell him where she was living. He noted that he did a Google search and discovered a listing for Sarah Madden Photography in Bentonville. Her website included pictures of all three children. Edmonds also discovered career links and online resumes stating that Sarah lived in Valley Cottage, New York, and a gay-rights petition that listed Sarah’s address as Bentonville.

David Cole testified that he was married to Sarah on August 26, 2000, and divorced on September 80, 2002. By agreement of the parties, Sarah got custody of J.C., who at the time of the divorce, was just over a year old. He asserted that Sarah had not provided a home for her children and was not physically present in their lives for much of the time. He claimed that J.C: had been living with his grandparents “forever.” Cole stated that all the visitation exchanges took place at the grandparents’ house, and J.C. stated that he was living with them. He noted that Sarah seemed to have relationships that were “two-year cycles,” which have been emotionally difficult for J.C. Cole asserted that, since obtaining temporary custody of J.C., he had facilitated contact between his child and the other half-siblings, and.

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Cite This Page — Counsel Stack

Bluebook (online)
424 S.W.3d 360, 2012 Ark. App. 582, 2012 WL 5318899, 2012 Ark. App. LEXIS 709, Counsel Stack Legal Research, https://law.counselstack.com/opinion/madden-v-madden-arkctapp-2012.