Denarvaez v. Denarvaez

2020 Ark. App. 550

VALERIE DENARVAEZ APPELLANT v. ENRIQUE DENARVAEZ APPELLEE

No. CV-19-952

ARKANSAS COURT OF APPEALS DIVISION II

December 9, 2020

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SEVENTEENTH DIVISION

[NO. 60DR-14-878]

HONORABLE MACKIE M. PIERCE, JUDGE

DISMISSED IN PART; AFFIRMED IN PART

RITA W. GRUBER, Chief Judge

Appellant Valerie Denarvaez appeals the circuit court's order granting her ex-husband Enrique Denarvaez's motion to modify custody and awarding Enrique primary custody of their six-year-old daughter, VD, subject to limited supervised visitation with Valerie. She brings three points on appeal arguing that the circuit court erred (1) by entering an ex parte order awarding custody to Enrique; (2) in modifying custody; and (3) in calculating child support. We dismiss point one and affirm on points two and three.

Valerie and Enrique divorced on August 6, 2014. They entered into an agreed custody, support, and property-settlement agreement, which provided that the parties would share joint legal custody of VD with Valerie to have primary physical custody. Enrique was given "reasonable visitation" to be scheduled by agreement of the parties on the basis of his work schedule. At the time of the divorce, Enrique worked as a deckhand on a tugboat in New York Harbor and was out of state for several weeks and then home for several weeks. Throughout the events relevant to this appeal, Enrique has been married to Shawna and lives with her and her three children in Rogers; Valerie lives with her parents, Linda and William Phillips, in Jacksonville.

On August 9, 2018, Enrique filed a petition for modification of custody and for emergency ex parte relief. The court entered an ex parte order the next day placing temporary custody of VD with Enrique and setting a hearing for September 10. In his petition and attached affidavit, Enrique alleged that Valerie had been arrested on July 26 and charged with third-degree domestic battery and terroristic threatening for threatening to kill her father, William, and striking him in the back of the head. According to the police report, William had locked himself in the bedroom and called the police while Valerie stood outside the bedroom door kicking the door and cursing at William. The incident report said the call was received at 5:42 p.m., and the police were dispatched immediately. According to the report, Valerie's mother and William's wife, Linda, had witnessed the incident; she told the reporting officer that Valerie had taken money from William without his permission, had repeatedly said she wished he would die tonight, and then hit him on the head.

At the temporary hearing held on September 10, Jacksonville police officer Jordan Cline testified that she had been dispatched to a domestic disturbance on July 26 and had been informed that the victim, William Phillips, had locked himself in his bedroom becausehe feared for his safety and was waiting for police to arrive before coming out. Officer Cline said that she noticed William peeking out from the blinds when she drove up. She walked through an open garage door into the house and saw Valerie sitting in the living room. She said that William came out of his room when she arrived. Officer Cline testified consistently with her report from the incident that William told her Valerie was screaming at him, hit him in the back of the head with something, and told him she would kill him. He told Officer Cline that he had locked himself in the bedroom and called the police. William had signed a written statement to that effect. Officer Cline said that Linda arrived at the house about thirty minutes after Officer Cline. Officer Cline testified that she was not told where Linda had gone, but she thought that Linda had VD with her "based off" what Valerie had told her. She believed Linda told her "that she had dropped [VD] off somewhere." She said that Linda appeared "frustrated," "angry," and "sad."

William testified that he did not remember calling 911 on July 26, did not recall the police showing up at his house, did not remember speaking to a police officer, did not remember Valerie saying she was going to kill him, and did not know who Officer Cline was. He testified that he was "sure" Valerie did not hit him and that she had never hit him. He said he did not know if his daughter was arrested on July 26, and he did not recognize his statement from that night but said the signature was probably his. Finally, he said he has PTSD and has trouble remembering significant events that had happened recently although he could remember things from long ago.

Linda testified that she witnessed a confrontation between Valerie and William on July 26 and remembered that William had called the police. She said that she left before the police arrived to "go for a drive." She said that she was not worried that her husband was in danger. She said that William and Valerie usually got along but that Valerie was in a lot of pain from a recent back surgery. Linda also testified that on the evening of the incident, VD was with Ashley, the mother of Enrique's other daughter AD. Ashley and AD lived several blocks away from the Phillipses, and the two children spent a lot of time together. Linda admitted that she would have been worried if VD had been at the house during the incident. She returned to the house because William called her and told her the police officer wanted her to return.

Ashley Moussa, AD's mother, testified that Linda had dropped VD off before the incident occurred. She said that she received a text message at 6:18 p.m. on July 26 from Linda asking, "Are you home?" Ashley replied, "I'm in the neighborhood." At 6:19 p.m., Linda texted, "I am at your house," after which Linda dropped VD off with Ashley. According to the police report, this was approximately thirty-five to forty minutes after the police had been called.

Enrique testified that VD had handled the transition to his house well and that she had started kindergarten in Bentonville. He said that he kept Valerie up to date regarding VD with texts and phone calls. He said that Valerie had talked on the phone with VD two or three times a day since he had assumed custody. But he testified that Valerie did not always act appropriately in the phone calls and that he had asked her to stop talking about"adult stuff" such as lawyers, court, and other adult topics. He said that Valerie's texts had increased since he had custody of VD and that he had received about 1000 text messages since VD had been with him in Rogers. He said the texts were not always civil, polite, or respectful. He also said that Valerie had told him that she wished his "plane would die when [he] travel[ed] to work," that he was a "horrible father," and that she had called the police to his house for welfare checks several times.

At the close of the hearing, the circuit court specifically ordered Valerie not to discuss the case with VD. It also specifically found that William had not testified truthfully and that "the child was at the home when this occurred . . . grandmother didn't take her over there until all this incident blew up." The circuit court entered a temporary order on October 8, 2018, awarding Enrique temporary primary custody of VD subject to visitation with Valerie on alternating weekends. The court specifically found in its order that William's testimony was not credible. The court allowed the parties liberal phone visitation with VD when she was in the other parent's custody but cautioned Valerie not to have discussions with VD about "coming home" to her house and specifically prohibited the parties from discussing with VD whether either of their homes was permanent or temporary and from speaking with VD about the case or any related legal proceedings. The court set the matter for a final hearing on March 28, 2019.

At the final hearing, Enrique testified that VD is happy, has friends at school, and is doing well in Rogers with him. He said that VD has a good relationship with his wife, Shawna, and that she is clingy with Shawna when she returns from school or from a visitwith Valerie. He testified that he had quit his job in December 2018 and was acting as a stay-at-home dad. He said that he and Valerie communicate through texts and phone calls and had spoken every day since VD had been with him. He said Valerie was always yelling, fighting, or arguing about something. He was also concerned about the phone conversations between Valerie and VD and complained that Valerie was berating, interrogating, and questioning VD. He said that VD puts his phone on speaker when she talks with Valerie and that he had recorded some of their conversations. Twenty-three of those recordings totaling forty-eight minutes were played for the court, and transcripts of the recordings were also entered into evidence.

Shawna testified that Enrique is an excellent father and has a good relationship with all the children. She said her three children and VD also have a good relationship. She said that she works for Liberty Mutual Insurance and runs its Northwest Arkansas agency. She said she had never met Valerie but had texted with her. She said Valerie had sent threatening, harassing texts to her, her family, her children, and her work. Valerie had also gone "online" and said false things to hurt her business, which had necessitated the involvement of Shawna's business attorney. Valerie had sent Shawna multiple text messages about "research" she had collected on Shawna's family, her ex-husband, and her neighbors.

Brooke Dancer, the assistant principal at VD's Bentonville school, testified about contact with Valerie. She said that Valerie called her on August 15, 2018, and told her that Enrique had temporary custody only and that Ms. Dancer could not enroll VD in school. Valerie left a voicemail the following day telling Ms. Dancer to contact her attorney becauseVD was already enrolled in another school, that...