Walton v. Walton

2021 Ark. App. 479

639 S.W.3d 383

Aimee WALTON, Appellant

v.Ruben WALTON, Appellee

No. CV-20-710

Court of Appeals of Arkansas, DIVISION II.

Opinion Delivered December 1, 2021

The Ballard Firm, P.A., by: Andrew D. Ballard, Little Rock, for appellant.

One brief only.

WAYMOND M. BROWN, Judge

Appellant Aimee Walton appeals the White County Circuit Court's order modifying custody of her two minor children, B.W. and A.W. The circuit court removed the children from appellant's custody and placed them in the custody of their father, appellee Ruben Walton. Appellant argues that the circuit court erred in finding a material change in circumstances and in determining that it was in the children's best interest to transfer custody to appellee. We affirm.

The parties were married on August 15, 2014, and appellant filed for divorce on May 4, 2017, alleging general indignities. Appellee filed an answer and counterclaim for divorce on May 26. Both parties argued that they were the fit and proper parent to have custody of the children. The divorce decree was entered on February 20, 2018, granting appellant an absolute divorce from appellee on the ground pled in her complaint. Appellant was awarded primary legal and physical custody of the children. Appellee was awarded visitation with the children every other weekend from Thursday evening until Monday morning. On the weeks he did not have the children for the weekend, appellee was granted visitation every Thursday until Friday morning. The decree stated that appellee's visitation would have to be shortened if he had to work the weekend of visitation and did not have a relative who could assist in child care. During the summer, the parties were to alternate physical custody of the children with one week on and one week off. The decree also provided a schedule for the parties to alternate holidays. Appellee was ordered to pay $156 a week in child support as well as $480 a month towards day-care expenses. The decree further provided that neither party was to have an overnight companion with whom the party has a romantic relationship and is not married to while the children are present.

Appellee filed an emergency petition to change custody on July 19, 2019, alleging a material change in circumstances. More specifically, appellee alleged that when he picked the children up for visitation on July 10, he discovered burns on B.W.’s left arm and torso and hand-shaped bruises on B.W.’s buttocks. B.W. indicated that the bruises were caused by appellant's boyfriend after B.W. had wet the bed. B.W. also stated that he had been told not to tell anyone about how the bruises happened. An emergency order of protection was granted in the Lonoke County Circuit Court, and appellant admitted spanking B.W. on his buttocks. Appellee asked the circuit court to grant him temporary custody of the children so that their health, welfare, and safety could be protected. Appellee also sought child support and attorney's fees and costs. Appellant filed a response on July 31, denying the material allegation of appellee's emergency petition. She filed an amended response on August 6, stating that the alleged burns on B.W. were lesions due to impetigo, and the diagnosis had been confirmed by Arkansas Children's Hospital (ACH) on July 11 and Unity Health Center on July 16, well before appellee's emergency petition. Appellant stated that prior to appellee's marriage to Samantha Davis on July 19, appellee had not exercised regular visitation and that the children had never spent a full week at appellee's residence before the ex parte protection order was entered on July 11.¹ Appellant claimed that appellee was not current on his child-support obligation, and she moved to modify child support.

A temporary order was filed on August 20, granting appellee temporary emergency custody of the children pending the resolution of the DHS investigation. The order stated that at the conclusion of the DHS investigation, the children would be returned to appellant with appellee returning to his previously ordered visitation unless there was a true finding of abuse and recommendation of removal of the children from appellant. The order also prohibited the parents or anyone in their households from using corporal punishment on the children. An attorney ad litem was appointed by an order filed on February 19, 2020. On March 3, appellant filed a motion to dismiss appellee's emergency petition to change custody. In the petition, appellant stated that appellee had overreacted to a medical condition and that when the children were picked up for visitation, appellant was in the hospital delivering her baby and was unable to relay the information concerning the children's impetigo to appellee. Appellant contended that DHS had not made a recommendation of removal of the children from her home and that she is the legal custodian of the children. She asked the circuit court to dismiss appellee's petition because there was no emergency or change in circumstances.

Appellee filed a petition for contempt on May 28, alleging that appellant had willfully denied his visitation with the children, had discussed the court matter with the children, had made disparaging remarks about appellee to the children, and had continuously harassed appellee and members of appellee's household. Appellant filed an answer on June 5, denying the allegations in appellee's petition for contempt.

The circuit court held a custody hearing on June 8. Appellee testified that he initially filed for emergency custody of the children in July 2019 because B.W. had bruises on his bottom and skin lesions that he assumed were burns. He stated that he later found out at ACH that the lesions were impetigo. He denied that appellant had informed him about the impetigo and said that the lesions were on both children and required medication. He testified that there are other children in his home, and that although impetigo is highly contagious, appellant did not notify him of the children's condition prior to him picking them up for visitation. He stated that he subsequently learned that appellant had been treating the children's impetigo with one of their sibling's medications. Appellee said that he was in the living room while Samantha was getting the children ready for a shower when she called him into the bathroom to look at B.W.’s bottom. He said that when he looked, he could see a handprint on B.W.’s bottom that already appeared to be bruising. He stated that he called the Cabot Police Department and put in an affidavit for child abuse. He said that DHS contacted him and sent out an agent, Melissa Davis, to observe B.W. and take pictures. He stated that he subsequently took B.W. to ACH to see about what he believed to be burns. He said that B.W. told him that Jack had spanked him for wetting his bed. He stated that, according to B.W., Jack was appellant's live-in boyfriend. He said that B.W.’s story about how he got the bruises has never changed. Appellee testified that B.W. was taken to the police station for an interview. He stated that during a previous emergency hearing, appellant testified that she was the source of B.W.’s bruise. He said that he had temporary custody of the children for about a month and a half until DHS concluded its investigation with a finding that the claim for abuse by Jack was unsubstantiated.

Appellee stated that he is currently a truck driver and is usually home each weekend from Friday until Sunday evening or Monday morning. He said while at home, he spends time playing with the children or watching television with them. He testified that prior to the emergency petition, he had to "fight tooth and nail to get any time" he could get with the children. He said that appellant denied him the week-to-week visitation he was supposed to receive in the summer of 2019 because he did not utilize it the prior year. He stated that she also refused his Thursday-night visitation because B.W. was in school in Jacksonville and could not miss any days. However, he testified that he was able to keep his Thursday to Monday visitation schedule, but the visits were usually shortened because he was the only one allowed to pick up and drop off the children. He said that appellant allowed the children's grandparents to pick them up only once—Thanksgiving. Appellee stated that appellant has constantly told him that B.W. said he does not want to come to appellee's house and did not want to be with Samantha when appellee is not home; however, he stated that he has never seen any indication that B.W. did not want to come with him. Appellee stated that, following the hearing in January, appellant had begun letting him utilize his Thursday visits, but that quickly reverted to no Thursday visits. He said that appellant told him that if Samantha could not meet her with the children at 6:00 a.m. on Friday mornings at the Cabot Post Office, there could be no Thursday visits. He stated that they had started the summer-visitation schedule early based on the ad litem's recommendation. He testified that he lost a day with the children on both Mother's Day and Memorial Day, and appellant would not allow him to keep the children an extra day to make up for the lost days.

Appellee stated that he did not meet Jack until they were in court at the custody hearing. He confirmed that there are photos of Jack with appellant and all her children as late as October 2019. There was also a photo of Jack, B.W., and another child on a four-wheeler without any protective gear. Appellee stated that he had recently applied to be a fleet manager at Maverick so that he can work Monday through Friday, 9:00 a.m. to 5:00 p.m., but COVID-19 has led to a hiring freeze at the company. Appellee admitted that he would suffer a nearly $30,000 pay cut if he was hired for the position but that he is willing to take the pay cut to be at home with his children. He said that if he receives custody of the children, he wants...