Pace v. Pace

2020 Ark. 108

595 S.W.3d 347

Phillip Granville PACE, Appellant

v.Jill Coburn PACE, Appellee

No. CV-18-787

Supreme Court of Arkansas.

Opinion Delivered March 12, 2020

Smith Weber, L.L.P., by: C. David Glass ; and Brian G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks, for appellant.

Appellate Solutions, PLLC, d/b/a Riordan Law Firm, by: Deborah Truby Riordan, for appellee.

JOSEPHINE LINKER HART, Justice

Phillip Granville Pace appeals from an order of the Miller County Circuit Court denying his petition to modify a joint-custody order and give him primary custody of his minor daughter, L.P. The circuit court also denied Jill Coburn Pace’s petition for attorney’s fees. On appeal, Phillip argues that the circuit court erred by continuing joint custody and denying him primary custody. On cross-appeal, Jill argues that the circuit court erred in denying her petition for attorney’s fees. We affirm on direct appeal and on cross-appeal.

This case was originally filed in the court of appeals, which affirmed by a vote of 5–4. Pace v. Pace , 2019 Ark. App. 284, 578 S.W.3d 284. We granted Phillip’s petition for review. When we grant a petition to review a decision of the court of appeals, we treat the matter as if the appeal had been originally filed in this court. Arms v. State , 2015 Ark. 364, 471 S.W.3d 637.

I. Direct Appeal

Phillip and Jill were divorced by a decree entered on July 16, 2015. A single child, L.P. was born of the marriage on January 19, 2014. In accordance with the parties’ agreement, the circuit court ordered joint custody of L.P. Each parent was to have physical custody of the child on alternating weeks. The decree specified that "[n]either party shall be primary custodian, and both parties shall have equal rights and duties." Further, the decree specified that the following special provisions shall apply equally to both parties for the best interests of the minor child:

• No overnight guests of the opposite sex with whom a parent has a romantic relationship when the minor child is in that parent’s possession;

• Neither parent shall be intoxicated by alcohol or drugs when in possession of the minor child;

• Neither parent shall make disparaging remarks about the other parent or their family to any third party in the presence of the child.

The decree also specified that, due to the disparity in the parties’ income and earning potential, Jill would receive $2250 per month in child support from Phillip.

Phillip challenged the joint-custody arrangement shortly after it was entered. He filed his first motion to modify custody on October 17, 2016. Phillip sought to be named primary custodian of the child and for Jill to receive supervised visitation. At a January 11, 2017 hearing on that motion, Jill’s substance abuse was made an issue, although Phillip admitted that he was aware of Jill’s addiction to prescription painkillers when he agreed to joint custody in the divorce decree. In disposing of the October 17 petition, the circuit court did not change custody; however, an agreed modification order was entered on March 23, 2017. The order prohibited the parties from:

a. disturbing the peace of the child or of the other party.

b. hiding or secreting the child from the other party.

c. making disparaging remarks regarding the other party or the other party’s family in the presence or within the hearing of the child or on any form of social media.

d. discussing any litigation concerning the child in the presence or within the hearing of the child or on any form of social media.

e. using illegal drugs, drugs for which the parties do not have a valid prescription within the twelve (12) hours before or during the periods of possession of or access to the child.

On March 14, 2018, Phillip again petitioned for change of custody. That same day, he filed a motion for drug testing. A hearing on the motion for drug testing was conducted on May 1, 2018. Jill was ordered to undergo testing. Jill’s boyfriend at the time, Sean Lancaster, was also ordered to submit to drug testing. On May 3, 2018, Jill submitted to drug testing and tested negative. Lancaster apparently never submitted for testing, but his relationship with Jill ended.

A subsequent hearing on the motion to change custody was held on June 25, 2018. Jill testified that she moved from her mother’s house to a residence she shares with two adults and their sixteen-year-old son. She stated that she was no longer pursuing an undergraduate degree through Texas A&M. During the school year, Jill stated that she worked as a long-term substitute teacher with the Texarkana Arkansas Independent School District. Because school was in recess, she had a job at Pecan Point Brewery. Jill asserted that she did not drink to excess or consume illegal drugs around L.P. Jill claimed that her prescription pain medication addiction was under control and that she was "attending meetings."

Jill stated that L.P. was currently enrolled in a prekindergarten program at Trinity Christian School. According to Jill, "drop-off" starts at 7:30 a.m., and instruction ends at 3:15 p.m. After that, "extended care" begins. Jill stated that she understood the school policy was that children L.P.’s age were not required to be in class before 9:00 a.m. She admitted that she occasionally kept L.P. in extended care when it was necessary for her job duties. Jill recalled that when she had worked as a dental assistant, her need for extended care was greater and admitted that one time she picked L.P. up at "5:31." Jill acknowledged that while L.P. was in her care, the child missed several days of the prekindergarten program. According to Jill, the only problem she has with the school involved L.P. needing a "nap mat," which she was surprised to find was no longer at the school in spite of the fact that she and Phillip had provided such a mat for more than two years. Jill questioned Phillip about the nap materials, and she claimed she was told that after he had remarried, he concluded that she should provide her own nap mat for the time that she had L.P.

Phillip extensively probed Jill’s personal life. Jill testified that her relationship with Lancaster had ended after the March 2017 hearing. Phillip also questioned her at length about text messages that she had exchanged with Niraj Krishna in December 2017 and January 2018, apparently with the goal of proving that she was intoxicated while she had custody of L.P. The texts made references to drinking and intoxication as well as cocaine being in her system, but she denied that she had consumed any illegal drugs since January 2017. Despite the racy content of some of the text messages, Jill asserted that she had not had any overnight guests with L.P. present. She did, however, agree that, after L.P. was asleep, she had invited Niraj to her house and asked him to bring beer.

Jill testified that she and Phillip had briefly reconciled after the last court order was entered and had discussed remarrying. According to Jill, after "dating" Phillip, she moved back in with Phillip for approximately six weeks. However, she discovered a voice recorder placed in the backpack that L.P. took to school on a daily basis. She also discovered a GPS tracker and that Phillip had intercepted her bank statements. Jill further stated that she read Phillip’s journal in which he wrote that his plan for reconciliation was merely a ploy to spend more time with L.P. Jill testified that they "broke things off officially" in August 2017, and Phillip married his current wife four months later. Jill agreed that she had difficulties with Phillip’s new wife, Lacy. She recounted confrontations with Lacy both at Jill’s residence and at a hospital emergency room.

Phillip next introduced the deposition testimony of Allison Munn, L.P.’s K-3 teacher at Trinity. Munn testified that she had interacted with both of L.P.’s parents and that she had seen a lack of consistency in Jill’s parenting. Munn also said that Jill had not always paid attention during parent/teacher conferences. Munn claimed that Jill had sometimes failed to send the requisite school supplies with L.P. Munn also claimed that she noted a difference in L.P.’s behavior during the weeks she is with Jill versus when she is with Phillip. Munn opined that L.P. was "always exhausted" and that she acted "very defiant." Conversely, during the weeks that the child is with Phillip, L.P. is "not tired at nap time, she kind of flips all around because she’s not exhausted." Munn agreed that over the past year, she had become concerned over L.P.’s educational development and safety while the child was in her mother’s care.

Elizabeth Foster, a teacher in Trinity’s summer program, testified that the school "prefers" that students arrive by 8:15 a.m. When in Jill’s care, however, L.P. arrived at the school after the preferred time, and the child would regularly be picked up after 5:00 p.m. In contrast, when L.P. was in Phillip’s care, L.P. was signed in between 7:45 and 8:00 a.m. and picked up between 3:00 and 3:15 p.m. Foster also provided a photograph of one of L.P.’s lunches that she claimed did not meet Trinity’s standards because there was "no meat in it." The picture showed that L.P.’s lunch consisted of several items, but no sandwich. On cross-examination, Foster admitted that she was acquainted with Phillip’s new wife Lacy because Lacy’s children from a previous relationship attended Trinity. Foster noted that it was Lacy who picked up L.P. while the children were in Phillip’s care. Foster also admitted that when L.P. brought the infamous nonconforming lunch, she had not spoken to Jill about it, but had brought it to Lacy’s attention. Nonetheless, Foster agreed that L.P. is at an appropriate education level and is a good student.

Niraj Krishna testified that he had used cocaine with Jill once in December 2017 and again in January 2018. He also said that "once or twice" he had been "partying with Jill" at her home while L.P. was asleep. Krishna stated that ...