ANGELA JONES v. JOHN E. JONES, JR.
No. CV-18-1062
ARKANSAS COURT OF APPEALS DIVISIONS II, III & IV
December 11, 2019
2019 Ark. App. 596
APPEAL FROM THE MARION COUNTY CIRCUIT COURT [NO. 45DR-17-171]; HONORABLE GORDON WEBB, JUDGE; REVERSED
The Marion County Circuit Court entered a divorce decree dissolving the marriage of the appellant, Angela Jones, and the appellee, John E. Jones, Jr.; settling their property and debt issues; and awarding custody of their child, I.J., to John. Angela subsequently filed a motion to set aside the child-custody portion of the decree, which the court denied. She appeals the order denying her motion to set aside. For the following reasons, we reverse.
Angela and John were married in 2012. They have one child, I.J. On August 13, 2017, Angela alleged that John became drunk and aggressive; would not allow her to leave with their daughter; and threatened to kill them. After this incident, Angela and John separated, and Angela and the child moved to Alabama.
While Angela was in Alabama seeking an order of protection, John was in Arkansas seeking a divorce from bed and board. He filed his complaint on October 24, 2017. In it, he pled his status as I.J.‘s primary caregiver, alleging that he was the fit and proper person to have full custody subject to Angela‘s right to visitation. On November 14, Angela filed for divorce from John in Alabama, alleging that she was the fit and proper person to have the actual custody of I.J. On November 15, at the hearing on the order of protection in the State of Alabama, both John and Angela were served with the competing divorce complaints.
Although properly served, Angela did not answer John‘s complaint for divorce within thirty days. John proceeded with a hearing on his complaint for divorce, was granted a divorce, and was awarded custody by default on January 31, 2018. The next day, Angela
With the benefit of counsel, Angela subsequently filed a motion to set aside the divorce decree under
John responded, arguing that Angela was properly served yet failed to file a timely answer. He further argued that Angela was bound by the actions of her attorney and had, therefore, failed to show a mistake justifying the setting aside of the decree. John offered no response to Angela‘s
The circuit court held a hearing on the motion to set aside default judgment in which it took testimony from Angela, which focused primarily on her failure to timely file her answer and whether her failure constituted excusable neglect. After hearing this testimony and the arguments of counsel, the circuit court noted that while it was uncomfortable determining custody of a child by default, there was no basis on which to set aside the default judgment. Angela, in this one-brief appeal, contends that the circuit court abused its discretion when it refused to set aside the default award of custody.
We begin our analysis by recognizing that pursuant to
- (1) mistake, inadvertence, surprise, or excusable neglect;
- (2) the judgment is void;
- (3) fraud, misrepresentation, or other misconduct of an adverse party; or
- (4) any other reason justifying relief from the operation of the judgment.
On appeal, Angela argues that default judgments are not appropriate when child custody is at issue and that the best interest of the child can serve as a basis for relief from a default judgment under
We decline to adopt a blanket exception to the default-judgment rule in child-custody cases. We, however, agree with Angela that the circuit court abused its discretion
Generally, we do not favor default judgments and promote their avoidance whenever possible. B & F Eng‘g, Inc. v. Cotroneo, 309 Ark. 175, 830 S.W.2d 835 (1992). In 1990, the supreme court amended
Here, Angela argued the decree should be set aside for “other reason justifying relief.” Her “other reason justifying relief” generically was the best interest of the child. In child-custody cases, the best interest of the children are of paramount importance. Roque v. Frederick, 272 Ark. 392, 614 S.W.2d 667 (1981). We have long held that the primary consideration in child-custody cases is the welfare and best interest of the child and that all other considerations are secondary. Grimsley v. Drewyor, 2019 Ark. App. 218, 575 S.W.3d 636. Here, however, the circuit court‘s primary focus was on Angela‘s failure to file a timely response. Thus, Angela‘s technical failure became the primary consideration, and the best interest of I.J. became secondary—a complete perversion of the premise that our courts are concerned with the best interest of the child.
More specifically, Angela argued the decree should be set aside for “other reason justifying relief,” and one of the reasons justifying relief was an allegation of domestic abuse. Our statutes mandate that the court must consider the effect of the abuse on the best interest
For the foregoing reasons, we hold that the default judgment on the issue of custody should have been set aside pursuant to
Reversed.
GRUBER, C.J., and HARRISON, SWITZER, VAUGHT, and MURPHY, JJ., agree.
ABRAMSON, VIRDEN, and GLADWIN, JJ., dissent.
RAYMOND R. ABRAMSON, Judge, dissenting.
What has once been settled by precedent will not be unsettled overnight, for certainty and uniformity are gains not lightly to be sacrificed.1
This is a case of first impression of the collision that occurs at the intersection of default-judgment law and the doctrine of best interest of children in custody cases. I applaud the noble goal of the majority in its quest to elevate the doctrine of best interest of the child over our well-established jurisprudence regarding the setting aside of a default judgment. But the factual background of this case does not warrant such a sea change. In any event, it is not the intermediate appellate court‘s role to create a new exception to the law of default judgments, particularly on the record and arguments now before us. Such a policy decision clearly should be a legislative prerogative.
This case came to us as a routine appeal of whether a default judgment should be set aside. It leaves us making wholesale changes in the way our courts will address default judgments in the future. The majority has carved out an exception in our law of default judgments not sanctioned by our supreme court or our legislature, ruling in a way that many would like the law to be rather than what the law actually is.
The majority holds that the circuit court abused its discretion by denying Angela‘s request to set aside the custody award pursuant to
Today‘s decision defies logic. The claims of domestic abuse are wholly unsubstantiated. Although there had been a case pending in Alabama regarding an order of
The fact that Angela‘s Alabama protection case was dismissed and no findings were made eviscerates the majority‘s use of
The majority seems to fault the circuit court that its primary focus was on the circumstances surrounding the default judgment but does not recognize that Angela‘s counsel made that issue the primary focus of his case. The best-interest argument was a mere afterthought.
There are no Arkansas cases that address
The majority by its decision today is sacrificing the stability of our long-settled default-judgment law to quixotically address what Angela perceives is a paradox. Cardozo cautioned us against such ventures long ago.
Despite the majority‘s belief that this decision will have little precedential effect, I believe that it will create an unholy minefield for practitioners. As a result of this decision, the time-tested standard language contained in Arkansas divorce complaints involving
Further, it is of paramount importance to recognize that the standard of review in this case is abuse of discretion. The abuse-of-discretion standard is “a high threshold that does not simply require error in the court‘s decision but requires that the circuit court act improvidently, thoughtlessly, or without due consideration.” Gulley v. State, 2012 Ark. 368, at 10, 423 S.W.3d 569, 576. Here, it can fairly be said that the trial court did indeed consider the abuse allegations––the petition for protection and its ex parte order were part of the very short record before the court. The court specifically did consider Angela‘s
[T]he Court could find no case that . . . any other reason justifying relief from the operation of the judgment. I respect Mr. Pasthing‘s argument, but . . . I just simply don‘t find, based on the testimony, that there is a basis to set aside this default judgment. I have that uncomfortableness that you know, that the idea of determining custody of a child by default, I think like any other Judge would, but in the circumstances of this case, the Court is going to . . . deny and dismiss the motion.
The majority states that they find nothing in the record to indicate that the circuit court considered Angela‘s abuse allegations, but the court clearly took it under consideration to the extent it was presented. As noted above, the court said it “respect[ed] [Angela‘s counsel‘s] argument,” but it did not find, based on the testimony, that there was a basis to set aside the default judgment in this case. As such, I cannot say that the circuit court acted improvidently, thoughtlessly, or without due consideration when, after a full hearing, it declined to grant the motion to set aside the default judgment. The court followed well-settled law on setting aside default judgments, and its decision should be affirmed.
VIRDEN and GLADWIN, JJ., join.
Lancaster & Lancaster Law Firm, PLLC, by: Clinton W. Lancaster, for appellant.
One brief only.