Beverly v. Murphy

1

2022 Ark.App. 4

SARAH BEVERLY APPELLANT v. AUNDRA MURPHY APPELLEE

No. CV-21-186

Court of Appeals of Arkansas, Division IV

January 12, 2022

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, THIRTEENTH DIVISION [NO. 60DR-16-1543] HONORABLE W. MICHAEL REIF, JUDGE

AFFIRMED

BART F. VIRDEN, JUDGE

Sarah Beverly appeals the Pulaski County Circuit Court's decision to change primary custody of AM (03/10/16) to his father, Aundra Murphy. We affirm.

I. Relevant Facts

On April 18, 2016, Aundra Murphy filed a petition for paternity of AM, and after DNA testing confirmed Murphy was AM's father, the court entered the decree of paternity. The court awarded joint custody to the parents with Beverly as the primary physical custodian. The parents shared equal time with AM. Paragraph 6 of the paternity decree provides that

[t]he Parties resolve to communicate with each other to come to a mutual decision about the child's life events and consider each other's opinions for any life decision of the child. If there is a disagreement, the Mother's decision shall prevail. If the parties disagree, they must attend mediation prior to future litigation:

. . . .

h. The parties agree to attend mediation prior to either party filing a future motion in this litigation, unless a genuine emergency exists.

i. Each Party hereby agrees to inform the other of an intent to move at least ninety days in advance of an actual residential relocation outside of the city of Pulaski County Arkansas.

Beverly filed a motion for relocation on February 5, 2019, requesting that the court allow her to move to Texas with AM so she could take a higher paying job. Beverly also asserted that Murphy, an endodontist, commuted weekly to his Peachtree Georgia, practice and planned to move to Georgia. The same day, Murphy filed a motion to modify custody alleging that a material change in circumstances had occurred. Murphy asserted that, among other grounds, in addition to Beverly's impending move to Texas, she withheld and prevented visitation, harassed Murphy and his wife, refused to communicate about medical appointments, refused to let AM attend his family's special gatherings, and stopped taking AM to Montessori school, which caused a change in AM's attitude toward school and in general.

The circuit court held two hearings on the matter-one on June 3 and another on July 26. Before the testimony began, Beverly withdrew her motion to relocate, explaining that she decided not to take the job in Texas and was working in Little Rock. There was extensive testimony from the parties and witnesses. Relevant to this appeal, Murphy testified that Beverly withdrew AM from the Montessori school he was enrolled in which caused AM to lose his interest in learning and lowered his self-esteem. He recounted several occasions when Beverly refused to follow the visitation order and interfered with the exchange process. Murphy also explained that he has an interest in an endodontic practice in Georgia and that he practices there when he does not have visitation with AM. Murphy stated that a few times he was out of town during AM's visitation because Beverly changed the visitation schedule without his consent. Beverly testified that she had refused to allow Murphy's wife, Rhonda, to pick up AM for visitation at the designated time, insisting that Murphy pick up AM after work instead. Beverly explained that when her relationship with Murphy ended in late 2015, she moved to an apartment in West Little Rock. Later, she moved to a different apartment in Little Rock. Beverly testified that she gave up her apartment in January 2019 because she planned to move to Texas, but when she decided to stay in Little Rock, she moved in with her mother, who lived in North Little Rock. Beverly testified that she had no plans to move, and she had taken a job at the Friday Firm. Beverly explained that the rent payment listed in her affidavit of financial means was for the mortgage on a house in North Little Rock that she was purchasing.

On October 3, the circuit court denied Murphy's motion for modification of custody. The court found that Murphy did not prove that a material change of circumstances had occurred and that Beverly withdrew her motion for relocation because she accepted a job in Little Rock. The court modified the visitation schedule so that AM transitioned only once a week on Wednesdays. The parties continued to share equal time, and the court found that Murphy's wife was allowed to help with drop off and pick up.

On November 13, Murphy filed a motion for contempt asserting that Beverly repeatedly prevented the Wednesday exchange of AM and provided insufficient reasons for doing so. For example, on November 6, Beverly told Murphy that AM had a skin infection, and he could not leave her care. Murphy asserted that he explained that a skin condition was not cause to withhold visitation, but Beverly refused to allow him to have his scheduled visitation. Later, Murphy discovered that Beverly had refused to follow the visitation order because she had moved to Texas, and she was in Texas when it was time for the exchange.

On May 8, 2020, Beverly filed a motion to modify visitation asserting that she had accepted a job in Austin, Texas, that was beneficial to her career. She contended that she had been traveling between Texas and Arkansas to comply with the visitation order, and she asserted that Murphy was living in Peachtree, Georgia, during the week; thus, a material change in circumstances had occurred, and modification of visitation was necessary. In response, Murphy counterclaimed for a change of custody, requesting that the circuit court award him primary custody with reasonable visitation to Beverly.

The court held a hearing on the matter on October 1, 2020. Before testimony began, Murphy withdrew his motion for contempt, explaining that the contempt matter "merged into the change of custody." The court allowed Murphy to withdraw the motion. At the hearing, Murphy testified that he lives in Little Rock with his wife and their one-year-old and two-month-old children. He explained that he practices in both Little Rock and Peachtree, and he works in Peachtree on the days he does not have visitation. Murphy testified that in April 2020, he discovered from Beverly's discovery responses that she had moved to Round Rock, Texas (near Austin).^[1] Murphy contended that on September 21, 2019, Beverly told him that she would like to adjust the visitation schedule to take AM on a family vacation from October 5 through 12, and he agreed; however, later, Murphy discovered that Beverly had begun working in Texas that week. Murphy testified that Beverly did not tell him that she moved to Texas, and on October 16, 2019, she mentioned that she was only considering taking a job in Austin. Murphy explained that in November and December, he began to be suspicious that Beverly had moved to Texas because she would not let him exercise his visitation with AM despite his insistence that he could care for AM's skin condition and wanted to have his scheduled visitation. As for his own violations of the paternity order, Murphy testified that he failed to tell Beverly about a scheduled immunization and a dermatology appointment he made for AM.

During the hearing, Murphy requested that the court allow him to reinstate the contempt motion stating that "she did violate [the order] and so I think I still want to pursue that[.]" Beverly objected, arguing that Murphy had withdrawn his motion. The court agreed with Beverly stating that "you did withdraw it at the beginning of the case and so I'm going to hold you to that."

The hearing proceeded, and Beverly testified that she did not move to Texas "full time" until the beginning of 2020. Beverly explained that in April 2020, she responded to a discovery question regarding her address by instructing counsel to refer to her May 2019 discovery response that she lived in North Little Rock. Beverly stated that she later supplemented her response with her Texas address. Beverly stated that at the July 2019 hearing, she did not mention that in January she had leased an apartment in Texas and that she filed the motion to relocate in February after she had accepted the job offer. Ultimately, she did not take the job in Texas, but she could not get out of the apartment lease. Beverly stated that at that hearing, she testified that she had no plan to move, and she worked at the Friday Firm. Beverly recalled that in September 2019, she made the final decision to accept the job in Texas and began work at the beginning of October.^[2] Beverly testified that in October, she told Murphy "face to face" that she accepted the job in Texas; however, she also testified that in November, she told Murphy in a text that she was living in Little Rock, and in December, when Murphy asked her where she was living, she told him that she lived in North Little Rock. Beverly explained that she should not have misled Murphy, but she "wanted some peace from the investigators at the moment." Beverly explained that typically, she had visitation with AM at her mother's home in North Little Rock where she also worked remotely. When it was time for Murphy's visitation, she would leave her mother's home and go back to Texas, and her mom would take AM to meet Murphy. Beverly stated that on November 6, she did not allow Murphy to have visitation because AM's eczema was very severe, and she denied that the real reason for her refusal was that they were in Texas. Beverly testified that she signed AM up for an after-school-care program in Texas in the coming year without telling Murphy.

In the written order entered December 10, 2020, the court determined that Beverly had accepted a job in Texas in September 2019,...