Morris v. Morris

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SEVENTEENTH DIVISION [NO. 60DR-09-2862] HONORABLE MACKIE M. PIERCE, JUDGE

Ballard & Ballard, P.A., by: Andrew D. Ballard, for appellant.

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

MIKE MURPHY, JUDGE

The appellant, LeShay Morris (now Eversoll), appeals from the order of the Pulaski County Circuit Court changing custody of the three children born during her marriage to appellee, John Morris. On appeal, LeShay argues the circuit court erred by (1) finding that a material change existed such that a change in custody was warranted, (2) finding that it was in the children's best interest to change custody to Morris, and (3) setting and calculating her child-support obligation. We affirm.

LeShay and John were married in 2004 and divorced in June 2011. That decree awarded physical custody of the children to LeShay and visitation to John. LeShay remarried in 2012. In March 2017, LeShay filed motions asking that the court find John in contempt for failure to pay child support and to suspend his visitation because of safety concerns for

the youngest child, CM, who has special needs. An ad litem was appointed, and in October 2017, a temporary agreed order was entered setting visitation pending a hearing.

On January 22, 2018, the ad litem filed an ex parte motion for a temporary, immediate change of custody of the minor children from LeShay to John. The motion alleged that the two older children (then ages 12 and 11) witnessed severe physical abuse of CM, that one of the older children had been hit in the mouth (causing bleeding), and they were afraid to be in care due to threats of harm and alcohol abuse by both her and her husband, Michael. The circuit court granted the emergency ex parte change of custody. John then moved for a change of custody. Another temporary agreed order followed that placed custody of the minor children with John, suspended his child-support obligation, and held in abeyance "any request for [LeShay] to pay child support" pending a final hearing.

At the February 20, 2020 hearing on John's motion to change custody, LeShay testified that she knew about the allegation that her husband, Michael, had hit one of the children in the mouth but that she had not ever witnessed Michael physically abuse or discipline the children. She testified further that she had separated from Michael and planned to divorce him; Michael had moved out of her house about two months prior to the hearing. LeShay admitted that she had not attended a complex-care appointment for CM in over two years.

John testified that the children have done very well since entering his care. He and the two older children have attended counseling, the children are doing well in school, and everyone, including CM, is involved in multiple extracurricular activities. Furthermore, CM

was thriving. He was receiving care in John's custody he was not receiving with LeShay. John had CM's teeth fixed and took him to an orthopedist. Before John received custody, CM could not stand, relied on a feeding tube, and weighed only thirty pounds. While in John's custody, CM progressed to walking some with a walker and eating by mouth. By the time of the hearing, CM weighed seventy pounds.

The ad litem also addressed the court:

Your Honor, I'm going to get to my recommendation. Which really, to be quite honest with you is more of kind of sitting middle of the fence and I hate to say that to the Court, but, you know, while I think both of these parties have very real short comings, I have to go back to my one fear of safety for the children. And it isn't necessarily that I think the children are unsafe with [LeShay], it's just I do believe, at one point in time, the children had true fear for safety and that came about physically. And I am going to listen to what the children were telling me at that time to what I saw with the children at that time with Michael and I do have very real concerns about the decision-making ability to have him remain in the home for so long until right before we go to court.

The court awarded John custody. In the ensuing order, it wrote that

[b]oth parents have significant shortcomings, and this is noted by the Attorney ad Litem in her report. It is clear however, the shortcomings of [LeShay] are significantly greater than those of the [John]. It is abundantly clear to this court [John] has done more for their disabled child in the short time period he has had custody than ever was done by [LeShay]. It is significant, since the issue of child support was reserved in the Agreed Temporary Order of January of January 31, 2018, [LeShay] has paid no child support of any kind to [John] for the care of the children.

The court finds it is in the children's best interest for their permanent care and custody to be awarded to [John], subject to visitation by [LeShay] . . . .

LeShay was ordered to pay child support in the amount of $106 a week from the date of the temporary agreed order placing the children in John's custody-a backpay period of 107 weeks.

The arrearages totaled $11, 342. LeShay appeals, arguing that the circuit court erred in changing custody and setting her child-support obligation.

In reviewing child-custody cases, we consider the evidence de novo, but we will not reverse the circuit court's findings unless they are clearly erroneous or clearly against the preponderance of the evidence. McNutt v. Yates, 2013 Ark. 427, at 8, 430 S.W.3d 91, 97. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been made. Boudreau v. Pierce, 2011 Ark.App. 457, 384 S.W.3d 664.

It is well settled that the primary consideration is the welfare and best interest of the child, while other considerations are merely secondary. McNutt, supra. We give special deference to the superior position of the circuit court to evaluate and judge the...