Lowder v. Gregory

2014 Ark. App. 704

451 S.W.3d 220

Christa Gregory Lowder and Robert Edward Lowder, Appellants

v.David Gregory, Appellee

No. CV–14–207

Court of Appeals of Arkansas, DIVISION IV.

Opinion Delivered December 10, 2014

Rehearing Denied January 21, 2015

Booth Law Firm, P.L.C., Van Buren, by: Frank W. Booth, for appellants.

The Baker Law Firm, Alma, by: Rinda Baker, for appellee.

Opinion

LARRY D. VAUGHT, Judge

Appellants Christa Gregory Lowder and Robert Edward Lowder appeal from an order awarding custody of their biological children to Christa's former husband, appellee David Gregory. Appellants raise numerous assignments of error, none of which warrant reversal. We therefore affirm the custody order.

I. Background

Christa and David “Creed” Gregory were married in 1997, and two children were born during their marriage: a son, C1 in 2001, and a daughter, C2 in 2002. While married to Creed, Christa engaged in a long-term affair with appellant Robert Edward “Eddie” Lowder. In July 2004, she and Eddie underwent DNA testing, which revealed him to be the biological father of C1 and C2.

In October 2004, Christa sued Creed for divorce in the Crawford County Circuit Court. Her complaint recited that she and Creed were residents of Crawford County and that there were “two children born of the marriage.” She prayed for custody of the children, subject to Creed's visitation, and asked for child support. No mention was made of Eddie's being the children's biological father.

The circuit court entered a divorce decree on January 12, 2005, and awarded Christa custody of the “two children born of this marriage.” Creed received standard visitation and was ordered to pay child support of $150 per month, plus all of the children's non-covered medical and dental expenses. Soon after the divorce, Christa married Eddie, and they moved with the children to Oklahoma.

In July 2005, Creed asked the court to place the children in his custody due to Christa and Eddie's interfering with his visitation and making derogatory remarks about him in the children's presence. In response, Eddie filed a motion to intervene, citing his status as the children's biological father. Both he and Christa asked the court to alter that portion of the divorce decree recognizing Creed as the children's father and to declare Eddie's paternity. Creed responded that he was the children's legal father and that Christa had misled both him and the court regarding the children's paternity.

On June 13, 2006, the court entered an order that allowed Eddie to intervene and established his paternity of C1 and C2. The order also vacated the divorce decree's finding that the children were born of Christa and Creed's marriage.¹ Despite these rulings, the court found Creed to be a person standing in loco parentis to the children and continued his visitation and his child-support obligation.

Following the June 2006 order, the children lived with Christa and Eddie in Oklahoma and visited Creed in Arkansas. The parties continued to file motions for modification of visitation and custody, but there was little change in those arrangements until August 2011, when Creed filed a motion for custody of C1 and C2. The motion cited a material change of circumstances in that the children were living in “deplorable” conditions at Christa and Eddie's home and were subject to “physical abuse” while living there. The court heard the motion on July 2, 2012.

At the hearing, Creed testified that Eddie was verbally abusive to the children and had hit C1 on the back hard enough to leave a mark. He also said that the children had come to his home covered with flea or chigger bites and that Eddie had cursed at him and threatened him in front of the children. Creed's mother testified that Creed had taken good care of the children and that they were happy in his care. She said that she lived near Creed and kept the children overnight if Creed had to work, and that she would continue to do so if Creed obtained custody.

The children, ages eleven and nine, testified in a closed session, and their testimony was later sealed. They stated unequivocally that they would prefer to live with Creed rather than Christa and Eddie. C1 offered photographic evidence depicting Christa and Eddie's house as extremely cluttered, so much so that there was little space for walking around. He also produced a photograph of a large red mark on his back where Eddie had hit him. He said that he was afraid of Eddie and that Eddie hit him “a bunch.” He also said that Eddie called him “nasty” names and threatened him if he failed to testify that he wanted to live with Christa and Eddie. C1 further stated that there was not enough food or milk at Christa and Eddie's house and that Christa, who stayed at home during the day, had no vehicle or phone while Eddie was at work.

C2 likewise testified that Christa and Eddie's house was very messy and lacking in food and milk. She said that Eddie hit them and used bad language and that he told her how she should testify at the hearing. She stated that she got sick and nervous upon returning to Christa and Eddie's house after visiting Creed and that she liked being with Creed.

Christa testified that her house was clean, that she had sufficient groceries, and that she had never heard Eddie curse or yell at the children but only spank them once or twice. She explained the clutter in her house by saying that Creed ordered the children to be messy and disrespectful and threatened to kill their pets if they did not comply. She also said that she could borrow a neighbor's car if needed, which was confirmed by neighbor Joann Thode. Ms. Thode testified that she had never seen Eddie be extremely harsh with the children, nor had she ever seen the Lowder home in a “filthy” condition.

Eddie did not appear at the hearing because he had not been served with Creed's motion to change custody. He was aware of the hearing, however.

At the close of the evidence, the children's attorney ad litem recommended that the children be placed with Creed. The court continued the hearing until Eddie could appear and testify but entered a temporary order granting custody of the children to Creed, with Christa to receive visitation and to supervise all contact between the kids and Eddie.

Not long after the July 2 hearing, the ad litem moved for an immediate suspension of Christa and Eddie's visitation based on Eddie's threatening the children with corporal punishment and banishment to a foster home if they did not divulge their sealed testimony. The court temporarily suspended the children's visitation with Christa but soon restored it on the condition that Eddie not be present or communicate with the children.

On September 13, 2012, Eddie appeared before the court to offer his testimony. He denied that the children were uncomfortable with him and denied threatening the children or Creed. Christa also testified and denied the allegations in the ad litem's motion. She said that the children were fabricating stories because Creed was “working on” them. The children were not present, so the court again postponed a final custody ruling and instructed the ad litem to explore avenues for Eddie to visit the children at a neutral location.

A few weeks later, the children returned to court to offer more testimony. C1 again testified that he was afraid of Eddie because “he always hits us and he yells at us.” He also said that, since his last court appearance, both Christa and Eddie asked him about his sealed testimony and that Eddie pushed him when he refused to tell what he had said. He further testified that Christa did not intervene on that occasion and that she made him and his sister write letters saying that they loved and missed Eddie. C2 testified in a similar fashion and also said that she had only a few items of ill-fitting clothing at her mother's house. Both children denied that Creed had asked them to mess up Christa and Eddie's house. Upon hearing this testimony, the court maintained temporary custody with Creed and visitation with Christa, and eventually allowed Eddie to visit the children at STEPS, a local community organization. A final custody hearing was scheduled for May 2013.

Before the final hearing, the parties presented legal arguments concerning the court's jurisdiction and the viability of the June 2006 paternity order that had named Eddie as the children's father and vacated that part of the divorce decree establishing Creed's paternity. Creed argued that the June 2006 order was void because the divorce decree's finding of his parentage was res judicata and because the court's attempt to modify the divorce decree came too late under Arkansas Rule of Civil Procedure 60. Christa argued that the court lacked jurisdiction to change custody to Creed because, under the Uniform Child–Custody Jurisdiction and Enforcement Act (UCCJEA), the children's home state was Oklahoma. The court reserved a ruling on these issues.

At the final hearing on May 13, 2013, much of the testimony mirrored what was said at earlier hearings. However, some new and relevant evidence emerged. Christa and Eddie's Oklahoma neighbors, friends, and relatives testified that Christa and Eddie were good parents, that Eddie did not curse or mistreat the children, and that the family seemed normal. Two of the children's former Oklahoma teachers testified that they saw no sign of problems with the children. Further, a STEPS representative testified that the children were relaxed during their visits with Eddie but that Creed had made inappropriate comments about the visitation in the children's presence.

However, Amanda Epsy testified that she performed drug tests on the parties and that Eddie tested positive for marijuana. Deidre Underhill, who was C2's teacher in Alma (where Creed lived), said that C2 was anxious and even became sick in the classroom in the days before she visited Christa and Eddie. Underhill also said that Creed was very active in the children's schooling...