Moix v. Moix

2013 Ark. 478

430 S.W.3d 680

John MOIX, Appellant

v.Libby MOIX, Appellee.

No. CV–13–76.

Supreme Court of Arkansas.

Nov. 21, 2013.

Wagoner Law Firm, P.A., Little Rock, by: Jack Wagoner, III, and R. Keith Pike; Holly Dickson, The Arkansas Civil Liberties Foundation Inc.; and Leslie Cooper and James Esseks, The American Civil Liberties Union Foundation, pro hac vice, for appellant.

Worsham Law Firm, P.A., Little Rock, by: Richard E. Worsham, for appellee.

CLIFF HOOFMAN, Justice.

Appellant John Moix appeals from the circuit court's visitation order, which contained a provision prohibiting his long-term, domestic partner from being present during any overnight visitation with appellant'sminor child. On appeal, appellant argues that the circuit court's order violated his state and federal constitutional rights to privacy and equal protection, and that the circuit court erred by finding that such a non-cohabitation restriction was required in the absence of any finding of harm to the child. Our jurisdiction is pursuant to Ark. R. Sup.Ct. l–2(a)( l ) and (b)(3)-(5) (2013). We reverse and remand.

John and Libby Moix were divorced in 2004. The divorce decree incorporated the parties' settlement agreement, which provided that the parties would share joint custody of their three sons, with appellee serving as the primary custodian and appellant receiving reasonable visitation. The settlement agreement also stated that neither party was to have overnight guests of the opposite sex.

In May 2005, appellee filed a petition to modify visitation, alleging that since the entry of the divorce decree, appellant had been having a romantic relationship with a live-in male companion and that the children had been exposed to that relationship on multiple occasions. Appellee asserted that appellant and his partner had recently separated after they were involved in a physical altercation in which appellant was seriously injured, although they had since resumed their relationship and were again residing together. Appellee requested that, due to this change in circumstances, the circuit court grant her sole custody of the children and limit appellant's visitation in such a way as to limit the children's exposure to the illicit relationship and to the danger caused by the volatility of his companion. Appellant agreed to the entry of an order of modification, filed on July 18, 2005, which provided that the existing custody arrangement would continue with the two older twin boys, but that appellee would receive full custody of R.M., who was five years old at the time. The order also restricted appellant to visitation with R.M. on every other weekend and every Wednesday, with no overnight visitation.

Despite the agreed order modifying visitation, it is undisputed by the parties that the order was not followed and that appellant had liberal overnight visitation with R.M. until late 2009 or early 2010, when he became addicted to prescription drugs and sought inpatient treatment after being involved in a hit-and-run accident. After he completed his treatment, appellant was limited to daytime visitation at the discretion of appellee. In May 2012, appellant filed a motion for modification of visitation and child support, in which he alleged that appellee had remarried in 2010 and that she had informed him that R.M. had a new father and no longer needed him. Appellant asserted that the severe reduction in his visitation coincided with appellee's remarriage and that his son had expressed the desire to spend more time with him. Because there had been a material change in circumstances based on appellee's remarriage, her new husband usurping his role as father of R.M., and the fact that R.M. was now twelve years old and wished to spend more time with his father, appellant requested that the circuit court modify visitation to allow overnight visits, as well as holiday and extended summer visitation.

In her response, appellee denied that there had been a material change in circumstances or that it was in R.M.'s best interest to have increased visitation. She asserted that any change in appellant's circumstances had been detrimental, pointing to his arrest for driving while under the influence of prescription drugs and the fact that he had lost his pharmacist license. She further alleged that appellant's relationship with his boyfriend had been volatile and that it was not in R.M.'s best interest to have overnight visitation in such an environment.

At the hearing held on October 9, 2012, appellant testified that he had been a pharmacist for twenty-three years and that he had had previous problems with a prescription-drug addiction in 1993, although he had completed treatment and remained sober until his recent relapse subsequent to his divorce. He testified that he gradually relapsed from 2004 until February 2010, when he was arrested for a DWI after being involved in a hit-and-run accident. Appellant completed several months of inpatient treatment and testified that he had completely abstained from alcohol and prescription drugs since February 2010. He further testified that he was now under a ten-year contract with the pharmacy board, pursuant to which he had been able to regain his pharmacist license, and that he has to call every morning to see if he must undergo a drug screen. So far, appellant stated that he had undergone fifty-nine random drug screens, all of which had been negative. He testified that he has also been regularly attending AA and NA meetings as required under the contract.

With regard to his relationship with his partner, Chad Cornelius, appellant testified that they had been in a committed, monogamous relationship for at least seven years and that they had applied for a marriage license in Iowa. Appellant stated that he had enjoyed overnight visitation with R.M. for five years before appellee forbade it and that even though Chad had been present, R.M. had never been exposed to any type of romantic behavior between them. Appellant testified that he and Chad had never slept in the same bed during any of R.M.'s previous visits and that if overnight visitation were again allowed, he would continue to abstain from bed sharing or other romantic behavior in the presence of his son. Appellant stated that Chad has a son from his previous marriage who often stays overnight at their home and that R.M. and Chad's son have a close relationship that would be greatly hindered if Chad were not allowed to be present during any overnight visits. According to appellant, he and Chad had not had any altercations since the one in 2005, which did not occur in the presence of R.M., and he stated that Chad is a positive role model for his son. Appellant also noted that his two older sons had lived with him during their senior year in high school, that they continued to spend weekends at his home during college, and that one of his sons is moving back home. He testified that all of his children are happy and emotionally, mentally, and physically stable.

Chad also testified and stated that he was a registered nurse at a hospital focusing on children and adolescents with behavioral-health issues. Chad testified that he has had to pass multiple state and federal background checks as a condition of his employment. He agreed that he and appellant had been in a committed relationship since 2005 and that they would like to get married. Chad also confirmed that he always slept in another room when R.M. visited. He testified that his sixteen-year-old son has a great relationship with R.M. Chad confirmed that appellant had been completely abstinent from drugs and alcohol since February 2010, and Chad stated that he personally does not drink alcohol in their home.

Jamie Moberly, a friend of Chad's and appellant's, testified that she used to be employed as a child-protective-services investigator and family service worker with the Arkansas Department of Human Services and that she is a licensed clinical social worker, who currently does home studies in connection with private adoptions.Moberly stated that she first met Chad through work and then got to know him, as well as appellant, through a church group. She testified that she had been in their home numerous times over the last several years and had witnessed their interaction with their children. According to Moberly, appellant is very loving and positive with his children, as well as her own daughter, and she stated that she would vouch for his good character. She testified that she had personal knowledge that appellant had been sober since 2010, that she has seen a difference in him since undergoing treatment and therapy, and that she has absolutely no concerns about his addiction at the current time. Moberly further testified that Chad is a great guy and a great father, that he is very supportive of appellant and his children, and that she had never seen him be verbally or physically aggressive toward anyone. She stated that she was more familiar with appellant's and Chad's home than other homes where she has conducted home studies and indicated that there was absolutely nothing about their home that would cause her any concerns about placing a child there.

Reverend Betsy Snyder, a United Methodist pastor at the church where appellant and Chad attend, testified that she also knows them both well. She stated that Chad is a generous person with a high moral compass and that he is a very good father. She indicated that she had no concerns about her own children spending time with Chad and that she had not seen anything that would indicate a propensity toward verbal or physical abuse. Although Reverend Snyder testified that she did not know appellant quite as well as Chad, she stated that she had never seen anything to cause her concern with regard to his character or his morality.

Chad's ex-wife, Robyn Cornelius, also testified on behalf of appellant and Chad. She stated that Chad is a loving...