Williams v. Geren

2015 Ark. App. 197

458 S.W.3d 759

LaDonna S. Geren Williams, Appellant

v.Patrick B. Geren, Appellee

No. CV–14–776

Court of Appeals of Arkansas, DIVISION III.

Opinion Delivered March 18, 2015

Edwin G. Dooley, Jr., Fort Smith, for appellant.

Byars, Hickey, and Hall, PLLC, by: Kevin L. Hickey, for appellee.

Opinion

LARRY D. VAUGHT, Judge

Appellant LaDonna Geren Williams (LaDonna) appeals the Sebastian County Circuit Court's order modifying custody of her two minor children, E.G.1 and E.G.2. The court removed the two girls from LaDonna's custody and placed them in the custody of their father, appellee Patrick Geren (Patrick). LaDonna argues that the circuit court erred in finding changed circumstances and erred in determining that a transfer of custody was in the children's best interest. We agree that there was no material change in circumstances sufficient to warrant modification of custody and therefore reverse. We do not reach LaDonna's second point as to best interest.

LaDonna and Patrick were married on February 16, 1997. They divorced on May 9, 2008. There were three children born of the marriage: a son, Tyler, who is now an adult, and two daughters, E.G.1, born in 2003, and E.G.2, born in 2005. The divorce decree awarded custody of all three children to LaDonna. The divorce decree anticipated that both parents would spend equal amounts of time with the children and ordered that Patrick pay all daycare expenses in lieu of child support. In January 2013, Patrick married Sue Geren. Sue and her two minor sons began living with Patrick. In August 2013, LaDonna transferred the girls from the Greenwood School District to the Fort Smith School District, in which she was residing. In 2013, LaDonna filed a motion to set child support, alleging that the children were not spending equal time with each parent and that Patrick was not paying daycare expenses. Patrick filed a response and motion for modification of custody alleging the following material changes in circumstances: (1) LaDonna had driven with the minor children in her car after drinking, (2) LaDonna had picked up the children from visitation while intoxicated by alcohol, (3) LaDonna had left the minor children home alone for extended periods of time while she went out drinking, (4) LaDonna was cohabiting with a man to whom she was not married, and (5) there were other factors that impacted the welfare of the children that would “be shown at a hearing of this matter.” LaDonna filed a response denying the allegations. In December 2013, LaDonna married Tony Williams, the man with whom Patrick alleged she had been cohabiting.

A hearing was held on May 14, 2014. E.G.1, age ten, testified that she lived with her mother, sister, and stepfather, Tony Williams, and visited her dad. She testified that she was going to a new school but preferred her old school and that she was an A and B student but had recently gotten two C grades. E.G.1 testified that during visitation at her father's house she was allowed to call her mother, that the younger children were sometimes left in the care of Sue's fourteen-year-old son, and that she got along with both of her stepbrothers. She also testified that she and her sister were sometimes left alone at her mother's house. E.G.1 testified that her father's wife, Sue Geren, did not drink alcohol, but that her mother's husband, Tony Williams, drank beer at the house. E.G.2, age eight, testified that she liked being at both her mother's and father's houses, was happy living with her mother, liked her stepfather, was doing well in school, had friends, and maintained good grades.

LaDonna testified that Patrick had not paid child-care expenses as ordered in the divorce decree. She testified that the children had spent approximately equal amounts of time with both parents until recently and that she was asking for child support because she was caring for the children more than originally anticipated. LaDonna testified that the girls attended an after-school care program called Girls, Inc., which provided activities that they enjoyed. She testified that Patrick refused to help pay for Girls, Inc. She introduced a letter from Patrick in which he refused to pay for $5 school t-shirts for the girls, and she testified that the letter was actually written by Sue.

LaDonna described an acrimonious relationship between herself and Sue. She stated that she could not communicate with Patrick because Sue was the “gatekeeper,” that Sue had soured her co-parenting relationship with Patrick, and that Sue had called her a “fucking bitch” in the children's presence.

LaDonna testified that, while under Patrick's care, E.G.2 had fallen into his swimming pool and nearly drowned. LaDonna, a former nurse, testified that Patrick had not been truthful about the extent of E.G.2's injuries and the seriousness of her condition when he initially called her and that he had not immediately sought emergency medical care. LaDonna testified that E.G.1 had special medical needs due to kidney problems and required vigilant monitoring and care. LaDonna testified that she and both girls had a latent type of antibiotic-resistant staph infection known as MRSA, which can cause severe complications. She testified that, as a trained nurse, she knew how to care for the girls' health needs, including preventing and detecting MRSA outbreaks.

LaDonna stated that she had recently married Tony Williams, whom she had dated for five years before the marriage. She denied that, prior to their marriage, Tony had lived with her or stayed overnight with her while the children were present. She described Williams's relationship with her children as very good. She stated that he sometimes took care of the girls when she was at work.

LaDonna testified that she worked two full-time jobs: the resident manager at the apartment complex where she lived and a cereal packaging operator with Nestle. She stated that, as manager of the apartment complex, she was provided a large apartment directly above (and connected to) the office. She testified that she had to be available from 9:00 a.m. to 6:00 p.m., but she did not have to be in the office the entire time and she had assistants who could help if needed. LaDonna's duties as residential manager sometimes required her to leave the girls in the apartment while she was downstairs in the office or somewhere else in the complex. She testified that she left the girls with the office phone in case they needed anything and also had her assistants watch them. LaDonna's second job at the Nestle plant was a swing-shift position, meaning that she worked every other weekend and two variable days per week. Those shifts were night shifts, starting at 6:00 p.m. and ending at 6:30 a.m., during which the girls were usually either at Patrick's house for scheduled visitation or in the care of LaDonna's husband. She testified that, when she got off work at 6:30 a.m., she would then get the girls ready for school and take them to school before coming home and sleeping from approximately 9:30 a.m. to 3:00 p.m. The girls would usually be at school while she slept, or Tony, her assistants, and other family members would help care for them.

LaDonna testified that she drank alcohol approximately once or twice per week, but not to the point of intoxication. She estimated that she normally had two to four bottles of beer over a period of three or four hours. She stated that she drank when the girls were not present. She testified that Tony had a couple of beers approximately three to four times per week. Tony was convicted of DWI two years prior to the custody hearing.

LaDonna testified that Patrick had picked the girls up several times while smelling of alcohol. However, she stated that this did not worry her because she knew he was still able to drive and that if he had been intoxicated she wouldn't have allowed the girls to go with him. LaDonna testified that she had driven the children after drinking alcohol on approximately three occasions but denied that she had been intoxicated. She denied picking up the children from Patrick after drinking, but then admitted that she might have had “a beer or two.”

LaDonna's mother, Jackie Copeland, testified that she had observed Patrick pick up the children for visitation while smelling of alcohol. She stated that Patrick had given her money for clothes for the children on more than one occasion.

Tony Williams testified that he was married to LaDonna, that he had a separate residence at the apartment complex and a house in Pocola, and that he had a good relationship with LaDonna's daughters. He testified that LaDonna's work schedule, working two jobs, gave him an opportunity to spend extra time with the girls. He stated that he wanted the girls to remain in their home.

Patrick presented several witnesses who were acquaintances of his and LaDonna's. Latricia Miller testified that she saw LaDonna out at bars approximately every six weeks. She stated that, on these occasions, she thought they were all “drinking for an extended period of time.” She never saw LaDonna drink anything other than beer. Miller testified that she had seen LaDonna at a bar the previous weekend, at a poker event, and that it was her understanding from Patrick and Sue that LaDonna was supposed to have the girls that weekend. She had seen LaDonna three or four weeks before the hearing at a pool tournament where Miller stated that LaDonna was drinking but wasn't intoxicated.

Mary Williamson testified that Patrick was a caring and attentive father who placed the girls' needs before his own and Sue was the same way. She stated that Sue used profanity and it would not surprise her if Sue had called LaDonna a “fucking bitch,” although she testified that it was not like Sue to use that language in front of the children.

James Womack testified that Patrick was a very involved father. Womack stated that he had never seen Sue act mean or inappropriate to the girls and that he had observed the...