Middleton v. Middleton

113 S.W.3d 625, 83 Ark. App. 7, 2003 Ark. App. LEXIS 591
CourtCourt of Appeals of Arkansas
DecidedAugust 27, 2003
DocketCA 03-122
StatusPublished
Cited by22 cases

This text of 113 S.W.3d 625 (Middleton v. Middleton) 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
Middleton v. Middleton, 113 S.W.3d 625, 83 Ark. App. 7, 2003 Ark. App. LEXIS 591 (Ark. Ct. App. 2003).

Opinion

Olly Neal, Judge.

This is an appeal from an order of the circuit court granting a change of custody to the appellee, Heath Middleton. Appellant, Jeanette Middleton, asserts that the court erred in transferring custody of her child, M.M., to the appellee and that the transfer of custody was not in M.M.’s best interest. We reverse and remand.

Jeanette Middleton and Heath Middleton divorced on April 7, 2000. By agreement, the parties stipulated that, although both were fit parents, appellant would retain primary care, custody, and control of M.M. The parties also agreed that if appellant moved more than fifty miles from Blytheville, she would either pay one-half of the transportation expenses or meet appellee at a half-way point.

On August 9, 2002, appellant filed a petition to relocate with M.M. to Decatur, Alabama. Pursuant to the parties’ agreement, appellant also sought permission of the court to meet appellee in Corinth, Mississippi, for his scheduled visitations, the point that she believed was half-way. 1 Thereafter on August 13, 2002, appellee filed a motion requesting the court to order that appellant refrain from moving M.M. out of state. The trial court entered an order to that effect on August 13, 2002, but vacated the order on August 19, 2002, in an effort to allow M.M. to attend her first day of school in Decatur on August 20, 2002. However, the trial court ordered appellant to have M.M. back in the State of Arkansas for the subsequent hearing on August 23, 2002.

On August 20, 2002, appellee filed a petition to modify custody, alleging that since the entry of the divorce decree, there had been a material change of circumstances, including the facts that appellant had moved the child from Blytheville, Arkansas, where she had no family, that appellee had been kept from M.M. for weeks at a time, and that all of M.M.’s family lived in Arkansas and she would have no family in Alabama.

A hearing on appellee’s petition for change of custody was held on August 23, 2002. At the hearing, appellee testified that M.M. is the product of his marriage to appellant. Appellee testified that after he and appellant divorced, he kept M.M. most of the time. He and his new wife recorded on a calender that they kept M.M. forty-eight percent of the time in February 2001, forty-three percent of the time in March 2001, forty-five percent of the time in April 2001, and thirty-eight percent of the time in May 2001. Appellee determined that M.M. was with him forty-eight percent of the time in 2001 and with appellant thirty-three percent of the time. Appellee stated that M.M. was with his parents or somewhere else the rest of the time.

Appellee testified that he picked M.M. up from school ninety-eight percent of the time when she lived in Gosnell and that he and his wife attended most of her school functions, church activities, and PTA meetings. He stated that he and his wife also went to the parent-teacher conferences. Appellee recalled that M.M. was baptized at the Gosnell Baptist Church and that she sang “God Bless America” there one Fourth of July and that appellant attended neither of these events.

Appellee stated that appellant would drop M.M. off at his house and M.M. would “smell like she didn’t have a bath and would have the same underwear on that I put on her 2 days earlier.” He further stated that M.M. had allergies and that the doctor recommended that he and appellant quit smoking; although he quit, appellant had not.

Appellee testified that froxii March 2001 to July 2001, he and his wife lived with her parents until her aunt moved out of the trailer that was located next to his in-laws’ home. He stated that he and his wife have a son, who was born before they were married. He also stated that they have “four or five acres and a lot of [his wife’s] kinfolk live right in that area with twenty or twenty-five children and three or four right there for [M.M.] to play with.” He noted that he eventually planned to build a house on the land.

Appellee acknowledged that in September 2000, he received a DWI, but stated that he had not had any problems since that time. He said that his work schedule was four days on and four days off, working eight o’clock in the morning until eight o’clock in the evening, then off for four days and working eight o’clock in the evening until eight o’clock in the morning. Finally, appellee stated that M.M. needed to live with him “because I don’t think her mother gives her the care that she needs . . . [and because] [b]etween me and my wife Mindy, M.M. will have [the] stability that she needs [.]”

. Appellant testified that she accepted a job in Decatur, Alabama, making a salary of $2,000 a month plus commission, which she did not receive in Blytheville. She stated that she used to drink beer, but that she had not had a drink in over five months. Appellant acknowledged that she went to Decatur, Alabama, to visit some friends, liked it, and decided to look for a job there. She said that she does not have blood relatives in Decatur, Alabama, but that M.M. has known her friends since birth and that M.M. called them “aunt and uncle.” Appellant related that she had not quit smoking entirely, but that she was down to three cigarettes a day.

Appellant further testified that at her apartment in Decatur, M.M. had her own bedroom equipped “with everything a little girl could want.” She stated that because M.M. visited her father almost every weekend, she and M.M. had not had a chance to do many activities. Appellant testified that she was not an active member of the PTA, but that she did attend the first and last parent-teacher conferences. She noted that she did not go to see her daughter sing “God Bless America” because she was not invited and did not know about it until afterwards. She also stated that she did not know about M.M.’s baptism “until [M.M.] came home with wet hair and I bawled.” Appellant stated that she always kept M.M. bathed and clean. She felt that “it is not in Heath[’]s best interest to have primary custody because of his work schedule and [M.M.] would be with her step-mother the majority of the time.”

Several other people testified at the hearing. Among them were Cyndy Byrd, M.M.’s first grade teacher, who testified that M.M. would draw family pictures of her new brother, appellee, and his wife, but never of appellant. She stated that Heath and his wife attended all of the parent-teacher conferences and that appellant came to the first one. She further testified that she would contact parents four times a year and that on two of those times, she spoke with appellant while on the other two, she spoke with appellee’s new wife.

M.M. testified that she was seven and-one-half years old and that .she liked going to school at “June and Harris” in Decatur, Alabama. She stated that she had her own bedroom and everything that she needed. She also stated that although she liked visiting her dad, she would “rather spend the night with [her] mom and go to school because [she] really like it [there].”

Following the hearing, the trial court, by letter opinion filed September 27, 2002, modified custody. The trial court found that:

The plaintiff-mother recently moved to Decatur, Alabama, and has secured a job there with a new employer.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Shelby Ortiz v. Johnathan Bagley
2026 Ark. App. 161 (Court of Appeals of Arkansas, 2026)
Emis v. Emis
2020 Ark. App. 126 (Court of Appeals of Arkansas, 2020)
Fudge v. Dorman
2017 Ark. App. 181 (Court of Appeals of Arkansas, 2017)
Baker v. Murray
2014 Ark. App. 243 (Court of Appeals of Arkansas, 2014)
Brimberry v. Gordon
2013 Ark. App. 473 (Court of Appeals of Arkansas, 2013)
Madden v. Madden
424 S.W.3d 360 (Court of Appeals of Arkansas, 2012)
Donato v. Walker
377 S.W.3d 437 (Court of Appeals of Arkansas, 2010)
Davis v. Sheriff
308 S.W.3d 169 (Court of Appeals of Arkansas, 2009)
Hicks v. Cook
288 S.W.3d 244 (Court of Appeals of Arkansas, 2008)
Downum v. Downum
274 S.W.3d 349 (Court of Appeals of Arkansas, 2008)
Hunter v. Haunert
270 S.W.3d 339 (Court of Appeals of Arkansas, 2007)
Sykes v. Warren
258 S.W.3d 788 (Court of Appeals of Arkansas, 2007)
Bernal v. Shirley
239 S.W.3d 11 (Court of Appeals of Arkansas, 2006)
Hurtt v. Hurtt
216 S.W.3d 604 (Court of Appeals of Arkansas, 2005)
Sheppard v. Speir
157 S.W.3d 583 (Court of Appeals of Arkansas, 2004)
Calhoun v. Calhoun
138 S.W.3d 689 (Court of Appeals of Arkansas, 2003)
Walker v. Torres
118 S.W.3d 148 (Court of Appeals of Arkansas, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
113 S.W.3d 625, 83 Ark. App. 7, 2003 Ark. App. LEXIS 591, Counsel Stack Legal Research, https://law.counselstack.com/opinion/middleton-v-middleton-arkctapp-2003.