Stormes v. Gleghorn, CV-21-532

2022 Ark. App. 416

653 S.W.3d 820

Sara STORMES, Appellant

v.Trey Eli GLEGHORN, Appellee

No. CV-21-532

Court of Appeals of Arkansas, DIVISION IV.

Opinion Delivered October 26, 2022

Ogles Law Firm, P.A., by: John Ogles, for appellant.

Scholtens Law Firm, PLC, by: Jay Scholtens, Jonesboro; and Blair & Stroud, Batesville, by: Barrett S. Moore, for appellee.

ROBERT J. GLADWIN, Judge

Sara Stormes appeals the Craighead County Circuit Court's August 2, 2021 order changing joint custody of the parties’ two minor children to primary custody with appellee Trey Gleghorn. On appeal, Sara argues that the trial court erred when it failed to apply the clear and convincing standard of proof and that Trey failed to prove a material change in circumstances. We affirm.

I. Jurisdiction

Because the question of jurisdiction is a threshold matter, we first address Trey's argument that the trial court's order is not final for appeal purposes. He argues that Sara appealed from a nonfinal custody order and failed to appeal from a subsequent custody order in the record. He contends that both orders contemplated further evidence and proceedings on child custody. He cites Rule 2(d) of the Arkansas Rules of Appellate Procedure–Civil, Ashley v. Ashley , 2021 Ark. App. 192, 2021 WL 1655927, and Beard v. Beard , 2019 Ark. App. 537, 590 S.W.3d 174.

Rule 2(d) provides that all final orders awarding custody are final, appealable orders. In Beard , we said,

[T]he question of whether an order is final and subject to appeal is a jurisdictional question that appellate courts have a duty to raise sua sponte. Reed v. Ark. State Highway Comm'n , 341 Ark. 470, 472–73, 17 S.W.3d 488, 490 (2000).

In Gilbert v. Moore , the Arkansas Supreme Court dealt with the finality of an order awarding custody of a child, and it explained that Rule 2(d) of the Arkansas Rules of Appellate Procedure–Civil allows for the appeal of a "final custody order" but that appellate courts must determine finality based on whether "the issue of custody was decided on the merits and the parties have completed their proof." 364 Ark. 127, 129, 216 S.W.3d 583, 585 (2005). In subsequent cases, the Arkansas Supreme Court and the Arkansas Court of Appeals have both applied this test, focusing on whether the order being appealed fully decided the issue of custody on its merits or contemplated the introduction of further proof. SeeArk. Dep't of Human Servs. v. Denmon , 2009 Ark. 485, 346 S.W.3d 283.

Here, the divorce decree awarding joint custody clearly anticipates additional proof and a follow-up hearing. The court specifically ordered Jalen to "provide written proof" of his completion of an anger-management course and his attendance at Alcoholics Anonymous meetings. It further ordered the parties to make certain specified changes to how they communicate with each other and parent JB. The court then specifically set a "Review Hearing," which we understand to be an opportunity for the court to assess whether the parties have complied with these requirements. This procedure is in conflict with the well-established precedent that a party seeking to modify custody has the burden of showing a material change in circumstances. Rice v. Rice , 2016 Ark. App. 575, at 5, 508 S.W.3d 80, 84. Here, the divorce decree explicitly requires the parties to change their current circumstances and appears to make its joint-custody award conditional on proof of those changes. As such, the court's divorce decree is not a final award of custody because it depends on proof yet to be introduced.

Beard , 2019 Ark. App. 537, at 3–4, 590 S.W.3d at 176

In Ashley , this court dismissed the appeal for lack of a final order, stating that

[t]he testimony demonstrates that Jacob must have surgery to amputate a portion of his arm, be fitted for a prosthetic hand, obtain training on using the prosthesis, and undergo occupational therapy. The trial court's order provides that joint custody will take place only when Jacob moves to Charleston and secures an independent living space. In its ruling from the bench, the court said, "That may take three months, it may take six months, it may take two or three years. I don't know. And I don't think [Jacob] knows."

Ashley , 2021 Ark. App. 192, at 3, 2021 WL 1655927. This court held that further proceedings were contemplated, citing Beard , 2019 Ark. App. 537, at 4, 590 S.W.3d at 176.

The distinguishing factor herein is that the contemplated proof in the trial court's order applies to the issue of supervised visitation, not custody, which was awarded to Trey without reservation. The postorder contempt petition and resulting orders do not change custody of the children but hold Sara in contempt and require further proof for the supervision requirement to be lifted. Accordingly, the custody order is final for purposes of appeal, and Sara's appeal is properly before this court.

II. Facts

The parties were divorced on December 12, 2019, and the decree awarded joint custody of their two children, ages five and two, with physical custody being alternated every week, and neither party paying child support. Corporal punishment was prohibited by the decree, the parents were ordered to take parenting classes, and Trey was to take anger-management classes. Further, the decree provided,

Each party is to take a drug test which includes both hair follicle and urine every six (6) months at his or her own expense and provide the other with results within five (5) business days of the receptor for the result. The first drug test becoming due in six (6) months after this Order. In addition, either party may prepay for a drug test which would include hair follicle and urine, of the other in [sic] a twelve (12) hour notice. Any refusal to take said tests or any positive results on said tests for opioids or methamphetamine will immediately suspend that parties’ [sic] custodial rights unless and until they are restored by a court of competent jurisdiction.

On November 19, 2020, Trey filed a contempt motion and request for emergency, temporary, and permanent custody. He alleged that Sara had failed to provide a drug test on June 12, which was six months from the date of the decree, and that as of the date of his motion, she had yet to provide the ordered test. He asked that her noncompliance be considered a refusal by her and that her custody be suspended. Trey also alleged that Sara had violated the decree in that she had (1) allowed overnight romantic visitors with the children present; (2) failed to complete parenting classes; (3) failed to allow phone communication between him and the children; (4) failed to make herself available for telephonic counseling appointments on two occasions; (5) failed to notify him of a counseling appointment; (6) failed to inform him about their child's disciplinary issues at school and the associated school meeting; (7) failed to pay her half of a debt as specified in the decree; and (8) failed to pay half of the children's medical expenses.

On December 3, the case was continued until December 14 on the emergency issues of drug testing and custody, and the other issues were reserved. Further, Sara was ordered to provide results of her hair-follicle test to Trey's counsel by 5:00 p.m. on December 4. If she failed to provide the results or if she failed the test, her custodial rights would be suspended "until further order of the court and reviewed on December 14, 2020." On December 7, Sara moved to modify the court's December 3 order to allow joint custody to continue because her hair-follicle drug-test results were negative.

On December 8, Sara filed a counterpetition for contempt and emergency temporary and permanent custody alleging that Trey continued to use corporal punishment against his son and that Trey's new wife has a thirteen-year-old son who bullies and leaves bruises on the parties’ six-year-old son. She further alleged that (1) Trey had failed to provide her with information regarding doctor's appointments for the children; (2) the receipts Trey provides "look to be illegitimate and manmade rather than coming from a provider's office"; (3) Trey refused to divide the 2018 tax refund; and (4) Trey refused to make student-loan payments as ordered.

After a hearing on December 14, the trial court found that Sara had failed to comply with the decree regarding drug testing and that the emergency suspension of her custody was proper. However, due to her negative drug screenings, Sara's rights were reinstated to joint custody.¹ Sara was ordered to submit to a nail-bed test by January 4, 2021. On December 22, the court ordered that Sara provide the drug-test results to the court on the day she receives them and that Sara would "maintain joint custody ... until the test results are provided."

The nail-bed test was positive for marijuana, and custody reverted to Trey. On February 23, a temporary order resumed joint custody with Sara's custodial periods being supervised by her father at all times. She was ordered to provide a drug test every week, one week urine and the next hair-follicle. If any test was positive, custody would revert to Trey until the April 29 hearing.

On March 25, an attorney ad litem was appointed to represent the children, and on April 12, a modified temporary order required Sara to provide a seven-panel hair-follicle test every other week, and if Trey wanted a twelve-panel test, he would pay for it. Sara was allowed unsupervised custodial periods with the children during the day, but overnights continued to be supervised.

A hearing was held on June 23, and Sara testified that she works at FedEx and that she is not comfortable giving Trey her work schedule. She said that she began dating a fifty-one-year-old man, Mr. Culp, whom she had met on a dating website a couple of months after the December 2019 divorce decree. She said that she had spent the night with him when the children were present, and she stipulated that the children would no longer be allowed around...