Bonds v. Bonds

2021 Ark. App. 359

634 S.W.3d 572

Kristina BONDS (Now Emmons), Appellant

v.Clay BONDS, Appellee

No. CV-20-417

Court of Appeals of Arkansas, DIVISION III.

Opinion Delivered September 22, 2021

Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson ; and Peel Law Firm, P.A., Russellville, by: John R. Peel, for appellant.

Taylor & Taylor Law Firm, P.A., by: Jennifer Williams Flinn, Andrew M. Taylor, and Tasha C. Taylor, for appellee.

WAYMOND M. BROWN, Judge

Appellant Kristina Emmons appeals the Pope County Circuit Court's order modifying custody of her two minor children, P.B. and T.B., removing the children from her custody and placing them in the custody of their father, appellee Clay Bonds.¹ On appeal, Emmons argues that the circuit court (1) clearly erred in finding a material change in circumstances, (2) erred in determining that a change in custody was in the children's best interest, and (3) abused its discretion in awarding attorney's fees to Bonds. Because we agree that no material change in circumstances occurred warranting a change in child custody, we reverse.

The parties divorced in November 2015. The agreed divorce decree awarded Emmons sole legal custody of the minor children, subject to Bonds's liberal visitation rights. In August 2016, Bonds was awarded custody of the minor children. Emmons appealed, and this court reversed finding that, after a thorough review of the record, there was "no independent basis for concluding that a material change in circumstances occurred."² Bonds again moved to modify custody and petitioned for contempt in June 2018, alleging the following changes in circumstances:

a. While Plaintiff was visiting with both of his minor children, he has taken the minor child, [P.B.] who is the oldest child to the movies on two separate occasions. Prior to taking [P.B.] to the movie, he checked the reviews for both movie [sic ], and he did not feel that [T.B.] was old enough to see the movie [P.B.] wanted to see, although the movies [P.B.] was going to see was appropriate for his age. While at the movies Plaintiff's fiancé entertained the minor child [T.B.] by going out to eat and playing games. [T.B.] was also taken to a different movie at a different time. When Defendant found out that [P.B.] was taken to the movie and not [T.B.], Defendant became upset and told the minor child [T.B.] that his dad was not being fair to him and took [T.B.] to the movies on one occasion and then to get ice cream on a separate occasion and told [P.B.] that he was not allowed to go to the movie.

b. Any time that the Defendant inquires if Plaintiff has asked anything about what is going on at his home, Defendant becomes upset and calls [P.B.] "dad's little spy."

c. [P.B.] reported to the school counselor and his teacher that Barron Shaw (Defendant's boyfriend) took his wallet and that he had $11.00 when it was taken and when it was given back to him the $11.00 was gone.

d. When the minor children first returned to the custody of the Defendant in December 2017, Defendant was advised by Plaintiff that the minor children were having a difficult time and that they needed to talk to a counselor. Plaintiff told Defendant that he was going to contact the school counselor to make them aware of the situation. Defendant was adamant that the Plaintiff not contact the school counselor. The discussion was by e-mail between the parties and Defendant took the e-mail to her attorney who then contacted Plaintiff through his counsel stating that Plaintiff was being accusatory and derogatory towards her. Despite the fact that Defendant agreed that the minor children needed counseling and that a counseling appointment was to be made, to Plaintiff's knowledge none was ever made with any school counselor or a therapist.

e. Attached are two letters written by [P.B.] as Exhibit "A" and "B", Exhibit "A" being written on March 11, 2018 and Exhibit "B" being written on April 22, 2018. The letters detail the fact that [P.B.] has attempted to talk to his mother regarding him having a bad day and her response was, "Well, fuck, I have been having a super shitty day."

f. Rebecca Johnson, [P.B.]’s school counselor forwarded an e-mail to Plaintiff stating that she had concerns about a poem written by [P.B.] that is attached hereto as Exhibit "C". The poem depicts not only [P.B.]’s desires, but he also states that he hears bad words from his mother.

g. Inappropriate language regarding both Defendant and Barron Shaw has been a long standing issue between the parties.

h. On January 13, 2018 Plaintiff had the minor children for the weekend and noticed that [T.B.] had ringworm. The minor child stated that no one was treating the ringworm and Plaintiff contacted the Defendant and was unaware, and wanted to see a picture. A picture was sent to her and instructions for treating the ringworm were sent.

i. On January 27, 2018 while Plaintiff had visitation with his minor children, [T.B.]’s ringworm was worse and had multiplied from one spot to eight to nine spots. Defendant asked for pictures, and pictures were sent to her. The minor child at the time was six years old and Plaintiff suggested that she assist him with bathing so she could see that the child not only had a ringworm, but that it was consistently getting worse. Defendant replied that she saw no reason to bathe the minor child, as he is old enough to bathe himself.

j. February 10, 2018 the minor children were back for visitation with the Plaintiff and [T.B.] had head lice. Again, Defendant was not aware and Plaintiff suggested that someone help him bathe so that these issues would not go unnoticed. The response to Plaintiff was that he was old enough to bathe himself and she would not be helping him. Eventually, she did concede that she would help him dry off. See attached Exhibit "D" and "E".

k. On the youngest child [T.B.]’s birthday, Defendant asked the minor child who he wanted at his birthday party. [T.B.] told Defendant that he did not want his older brother [P.B.] to be invited. Defendant told [P.B.] that it was [T.B.]’s birthday and he got to choose who was invited. Believing that it was a party for first graders, Plaintiff inquired only to find out that it was a sleep over and that [T.B.], Barron Shaw's two children and his two cousins were invited, and that he was the only family member that did not get invited. [P.B.] was sent to a friend's house to stay the night. He was provided a piece of cake the next day. l. On February 28, 2018 Plaintiff inquired about the minor child [T.B.]’s progress report and Defendant stated that he did not get one, that he only had some testing reports. Plaintiff contacted [T.B.]’s teacher asking about the grades since he did not receive a progress report. The teacher e-mailed back that he did receive a progress report and that it had been sent home the previous week. See Exhibit "F" and "G". The following day the Plaintiff asked the Defendant for screenshots of the testing reports. The Defendant sent screen shots along with the progress report that she previously said she did not receive. [T.B.] was falling behind in Benchmark on his reading level.

m. On April 20, 2018 the minor children came to the Plaintiff for their regular visitation weekend. The minor child [P.B.] was wearing women's jeans that were too big for him. Plaintiff confirmed online that they were women's jeans and sent the minor child home in jeans from his home. Defendant insisted that they were not women's jeans, although Plaintiff sent the Defendant a photo of the jeans along with a screen shot of an internet search showing that they were women's jeans.

n. On May 4, 2018 it was discovered that [P.B.] had a ringworm.

o. The minor child has told the Plaintiff the following statements:

I. "I feel like I am invisible there. I feel like I am a satellite in space."

II. "I am not happy there and my mom is mad at me a lot."

p. The minor child [P.B.] was playing with friends that live near him and they had been walking around the neighborhood. They had been to a pond a couple of times and he said that it took him 30 minutes to get to the pond and that and [sic ] he got separated from the boys and got lost when trying to get back home. [P.B.] reported that his two friends that he eventually got separated from had knives in case anything tried to attack them. [P.B.] stated that it took him an hour to return home after he got lost. When confronted, Defendant stated that she did not know that he was at the pond and that he had previously been told not to go there and was unaware of any knives. The Defendant became upset at [P.B.], not for going to the pond against her wishes or direct statements, but because he had told his dad about the incident. When the minor child went back to the Defendant's home, the Defendant stated that they had to take a walk to the pond because of his "big fat mouth."

The motion to change custody alleged that the foregoing instances "represent a change of circumstances, and it would be in the children's best interest that custody be placed with the Plaintiff." In her response to Bonds's motion to modify custody, Emmons denied any material change of circumstances justifying modification of the parties’ order of custody and requested that the petition be dismissed pursuant to Rule 12(b)(6) of the Arkansas Rules of Civil Procedure for failure to state a claim upon which relief could be granted.

The circuit court held the initial part of the custody hearing on October 1–2, 2019. On the second day of the hearing, the court appointed attorney ad litem Mark Carter for the minor children and continued the case to December 3. Among the ad litem's recommendations filed with the court on December 12 were the following:

He was unable to conclude there had been a material change in circumstances and could not "in good conscience state that it would be in either child's best interest" to modify custody. He noted that P.B. had a strong preference to live with his father, while T.B. had no...