Foust v. Montez-Torres

736 peti in the instant

distinguish claims He did in the first.

tion from claims that there in the first

not establish writ, and his reasser any basis for

was in the the same claims largely

tion of remedy. petition is misuse

second petition is dismissed.

Accordingly, State, 2013 WL

Rodgers v. curiam) (“[A] has the (per

3322344 whether the re to determine

discretion petitioner’s application

newal of a

writ, facts pre are additional when there will support grounds, of the same

sented in State, permitted.”); Jackson curiam) (per 2010 WL 1006491 State,

(citing Jackson curiam)); (per see also WL Camacho-Bordes, 94 F.3d States v.

United (8 Cir.1996) (holding judi- that res th apply to bar second

cata did nobis, abuse-of-

for writ of error coram res applied subsume

writ doctrine

judicata).

Petition dismissed. FOUST, Appellant

Jessica MONTEZ-TORRES, Appellee

Maria CV-14-192

No.

Supreme Court of Arkansas.

Opinion February Delivered Firm, PLLC, by: res during hearing. Rob- also testified Robertson Law She Oswalt, Benton, that, and Bonnie following separation, ert “Chris” stated their she Robertson, Rock, appellant. Little for learned that Foust was exposing M.F. to partners during Foust’s romantic visitation Tschiemer, Mayflower, for ap-

Robert S. times. Montez-Torres testified that she pellee.

became concerned about this and voiced GOODSON, HUDSON COURTNEY objection Yet, her to Foust. Foust contin- Associate Justice ued to partners host her romantic over- night during visitation with M.F.

| Appellant appeals Jessica Foust an or- County entered the Jackson Circuit der Eventually, began Foust a romantic re- her denying request for visitation Court lationship Christy Eddington. with Some- M.F., appellee with the minor child of Ma- afterward, time Eddington and Montez- reversal, ria For Montez-Torres. Foust exchanged name-calling, Torres both in argues that the circuit court erred find- result, and via text As a messages. ing that in loco she stood M.F. expressed Montez-Torres to Foust years the first three child’s she did not want M.F. to be around Ed- life rather than for the of it and in entirety Nonetheless, dington. proceeded Foust finding that it was not M.F.’s best inter- have with night M.F. on a when with est have visitation her. We affirm Eddington also at her was home. Montez- time her com- Foust filed Eddington Torres discovered that was at visitation, plaint and the house at approxi-’ and called Foust the action. mately 4:30 in the Foust morning. ac- 1994, Jessica Foust Maria Mon- and knowledged Eddington was there and began relationship. tez-Torres romantic they watching claimed that were movies in They together family lived as a unit with the bedroom. Foust also admitted that two biological Montez-Torres’s children. sleeping M.F. was in the same room. Montez-Torres brief had a rela- then Montez-Torres traveled to Foust’s tionship child, with a man and conceived a house retrieved M.F. After that inci- M.F., who born in 2006. Foust and dent, Montez-Torres declined to allow ended relationship Montez-Torres their Foust to with have further visitation M.F. 2009. Following separation, their Montez- home, Torres and M.F. moved out | despite testified that aMontez-Torres parties and the established a 12schedule request her that Foust not contact However, allowing visit Foust to M.F. instance, Foust to do so. For continued February ended Montez-Torres this Eddington approached Foust M.F. 27, 2013, arrangement. March On Foust shopping, her babysitter while a complaint in the Jackson County Foust and talk attempted embrace seeking Court or in custody, Circuit despite babysitter’s M.F. admonitions. alternative, visitation with the child. Foust also flowers at school sent to M.F. with birthday indicating on a card At the on hearing complaint, Foust Eddington. flowers were from Foust and testified that she had been present hearing, At the the cir- M.F.’s birth and had conclusion lived in home cuit court found that Foust stood with the child from that time until' the years three parties’ separation to M.F. for the first Additionally, gave Foust testified that M.F.’s life but that it was not M.F.’s Montez-Torres the child Foust’s last name. continue Montez-Tor- best interest or the timely parental notice of duties appeal Foust filed

her. one, is a unlike that relationship temporary that order. from Matlock, 340 Ark. adoption.” Babb v. first point appeal, For her More- court erred find claims that the circuit over, squarely the in have held ing that she stood relationship terminates once years, rather than the first three surrogate parent “has the established the This entirely, of child’s life. court the place, at and indicated his home another traditionally reviewed matters has thereby longer to no treat them as purpose in de record with equity sound novo the Goss, family.” Kempson v. 69 part of his questions legal respect ques fact and 451, (1901). 224 We have Ark. 64 S.W. 39, v. Spivey, tions. Daniel 386 in re- held that the status finding 424. will not reverse a S.W.3d We quires “fully a in nonparent put himself by the circuit court unless it is clear made by parent the situation of a lawful assum- ly Id. have further stated erroneous. We ing obligations pa- all the incident to the finding clearly that a circuit court’s is erro relationship” actually and to rental dis- when, despite evidence supporting neous obligations, a charge those standard which record, viewing the appellate in the be the nonparent cannot met where and the left with a all of evidence is definite have in the child not lived same house firm conviction that mistake has three years. Spivey, over Daniel v. 2012 give been committed. Id. We due defer 6, Ark. 39 at at 428. S.W.3d Foust’s the superior position ence to the of ignores that argument also Montez-Tor- judge credibility court to the view res, M.F.’s by virtue of her status as natu- Perry, Hunt v. witnesses. parent, right ral has fundamental (2004). 224, 162 This defer direct and control of M.F. upbringing in greater ence to the circuit court is even Indeed, “the interests of in the visitation, involving cases care, custody, control their children placed as a heavier burden is on the circuit perhaps ... the oldest of the fundamen- court to utilize to the its fullest extent | ^recognized liberty by this tal interests powers evaluating in perception the wit Granville, Court.” Troxel 530 U.S. nesses, testimony, their and the best inter 65-66, 120 S.Ct. 147 L.Ed.2d 49 Alphin Alphin, est of children. (2000). Additionally, we that a party have held Foust the circuit court argues that erred parentis may terminate that she did not stand any relationship corresponding entire life for M.F.’s duty of support Kempson, unilaterally not Montez-Torres could ter- 224. would 64 S.W. It be parental relationship minate Foust’s indeed, anomaly, nonparent to for a have M.F. The circuit court’s conclusion that ability unilaterally sever the in loco did not Foust relationship affording without M.F. for the child’swhole life is not parent the right. erroneous.1 have held that the in natural same view, “may abrogated relationship parent our the natural must also be assuming permitted will either the relationship to terminate years doWe not review the circuit court's three life. M.F.’s that Foust stood first will, improperly prioritize the law Other states this considering lest issue have above that of the nonparent similarly. example, held For Jones parent. Supreme Barlow, natural As Utah supra, cited, which previously explained, inequitable Court “Such an Supreme Utah Court examined case result, prioritize which would a nonparent where sought visitation with a over surrogate parent the needs of the child under the doctrine of loco parentis. child, paren- demonstrates that the in loco There, here, as the natural moved tis contemplate perpet doctrine does not with the child to a separate residence fol- is, fact, ual grant rights and ill-suited lowing the of the parties’ relationship. end Barlow, to convey rights.” such Jones v. Eventually, the natural parent ended all (Utah 2007). short, P.3d contact nonparent between the and the because Foust had lived with the child child, nonparent and the petitioned for vis- years, for over three could stand itation. The Supreme Utah held Court parentis Accordingly, loco to M.F. the the that nonparent standing lacked to holding circuit court did not err in her bring action because she did not stand that was not in loco for Foust the to the child the when entirety of M.F.’s life. parent natural had to moved another resi- that Having concluded Foust did not dence and refused to the nonparent allow stand in to we need not to interact with the child. Accordingly, reach her contention that the circuit court held, the court Utah “The common law permitting erred in that doctrine of in convey does not with the her was not in child’s best inter- perpetual rights that survive the termi- court, est. the Before Montez-Tor- parent-like nation of relationship.” the argued res that standing Foust lacked Barlow, v. 154 Jones P.3d 819. action this because she was not act- |7The Appeals Texas Court of has ing the time she filed complaint.2 agreed nonparent standing that a lacks that, agree the because pursue custody a cause of for or action did when action, | (¡filed she the longer she did not have visitation where no nonparent standing to seek visitation with the child. with resides the child and is exercis 981, appellate The our Dyer, dissent confounds law on immaterial. v. 243 423 Miller Ark. suggesting (1968). standards review that we Undoubtedly, may S.W.2d 275 we precluded addressing are from Montez-Tor- appellee affirm a circuit court even if an argument standing simply res’s on because wholly fails to file a This is the brief. urged argument appeal. has always appellant burden is on the demon support In Teris, position, of its the dissent cites strate error decree. circuit court's Chandler, LLC v. Ark. 289 v, Gunn, Bratton 111 S.W.2d (2008), that inapposite but case is (1989). Additionally, contrary to the dis appellant's an because it involved failure assertion, sent's our review is not limited to develop argument appellee. rather than an grounds by those elucidated the circuit court Indeed, Montez-Torres, it axiomatic as rather, opinion, may we its affirm for appellee, any had no burden to make any developed reason in the been arguments any or appeal. raise issues on Slater, record. Yanmar Co. v. appeal, This has been clear court that on 439; Ctr., Diagnostic 386 S.W.3d Arkansas judgment, look to the correctness what Tahiri, P.A. 257 S.W.3d 884 may ever have been the circuit court’s reason (2007). standing question The of Foust's was granting for Support it. Child En Office developed Wood, the circuit court. raised before forcement Therefore, well its au appellee this acts within The failure of the argue authority thority point cite or on it is address issue. child); Cnty. v. Ander Worrell Elkhart

ing visitation. Coons-Andersen Office of (Ind. 2003). Children, sen, Family & 704 N.E.2d 1027 (Tex.App. 104 S.W.3d Coons-Anderson, 1998) togeth parties lived status (holding foster-parent partners. During that romantic foster temporary er as and that time, through child conceived a custody Anderson standing or lacked parties After artificial insemination. longer no resided visitation once a child the resi moved out of separated, them). Anderson with child but allowed Coons- with the dence short, adopt we decline to rule periodic visi to have to continue Anderson to have allowing nonparent Eventually, tation custody or visitation where relation to terminate the chose Anderson parentis. does not stand in loco party and Coons- child ship between unnecessarily rule and im- Such a would an ac Anderson. Coons-Anderson intrude on of natu permissibly child, seeking tion parent ral to make decisions held that she Appeals Court of Texas parties by allowing third to invoke lawsuit, standing to maintain nonparent when the State encroachment upon appel “The relied stating, cases responsibilities does not hold the who was once lant to assert that someone that the parent. recognized of a We have parentis may maintain Amendment includes “the lib Fourteenth simply against a child’s do lawsuit of to have raise erty right parent and we re proposition, not for that Linder, Under v. children.” possible ject appellant’s the notion that Thus, 342, 72 S.W.3d “so contin parentis as a in loco status long parent adequately as a cares moved out of past ued the time the child (i.e., fit), there children is will nor The Texas court her home.” Id. 636. mally inject no reason for the State to recognize standing to vir also refused family itself into realm of the private periodic visita tue of Coons-Andersons’s question ability par of to further tion, stating, concerning make the best decisions ent. Likewise, was not appellant we conclude rearing parent’s of that children.” parentis in loco because of occasional Granville, 57, 68-69, 120 Troxel v. U.S. visitation she had child after may not “infringe S.Ct. 2054. The State appellee separated. she and Texas right of fundamental applied courts have the common never child-rearing simply make decisions be grant law parentis doctrine of in loco judge cause a state believes a ‘better’ deci custodial or visitation non- 72-73, sion could be made.” Id. at wishes, parent, against parent’s S.Ct. maintains actual when the custo- dy We decline to do so of Accordingly, because Foust' did not now. parentis stand in loco to M.F. the time action, the circuit court nonparent Id. at 635. has no right denying reached the result Foust’s custody standing petition for visita request and visitation because tion not stand in nonparent where does standing she lacked the action. .parentis to the child at the time of the Accord, D.B., said, As we have we will affirm the petition. A.3d 706 often D.G. (Pa.2014) (holding grandmother right that a circuit court where it reaches the result, |sshe though may have standing was not in even it announced parentis City where she not live different reason. Marion v. did with loa of City entirety 423 the Memphis, Quite W. child’s life. to the contrary, S.W.3d 594. the circuit its court in memoran- specifically dum of decision stated as fol- Affirmed. lows: Hannah, C.J., Danielson, J., concur evidence, From the the court con- in part; part. dissent plaintiff successfully cludes dem- onstrated she stood in loco Hart, JJ.,

Baker and concur. during years the first three [M.F.] Danielson, Justice, Paul concurring E. life. child’s She lived the same part dissenting part. home, shared in day-to-day the child’s activities, care and held herself out to be I in majority’s disposition concur [M.F.j’s parent, generally acted in the write I affirm separately because would place parent, fully of a accepted circuit court’s that it was not responsibilities parenthood. M.F.’s best interest to have with Appellant Jessica Foust. having ho established, been we turn to the best The majority opinion needlessly engages issue, which more problemat- interest analysis whether Foust stood ic. erroneously and then to M.F. concludes as follows: added.) (Emphasis This was reaf- short, order, because Foust had lived firmed in the circuit court’s which years, “successfully the child over three stated that Foust demon- stand in could not to strated that she stood in loco Accordingly, during years the circuit court did the first three [M.F.] But,

not clearly holding err in child’s life.” that Foust was the circuit court then entirely found that Foust in her proof “has failed M.F.’s life. as to the best interest issue.” Having concluded that not Foust did It that is clear the circuit court found stand in parentis to we need that Foust stood in loco to parentis M.F. not reach her contention that circuit the circuit that the court then determined in finding permitting erred that in that it was not the child’s best interest visitation with her was not in child’s the to that allow visitation. The fact the cir- best interest. qualified cuit court’s order in loco par- the What majority wholly ignores the is that to equate entis status does not a the deny circuit court not re- did Foust’s that visitation was denied on the basis that quest and, thus, on the visitation basis that she Foust out of the home could did not parentis stand in loco to M.F. for in longer no to M.F.1 majority improperly 1. The opines majority also that The fact of M.F. that the neverthe- argument completely "because Foust did not stand in loco less addresses this disre- action, gards when she principle filed her she did not have the well-established that we standing doing, party's argument to seek visitation.” In so the do not make a for him or Teris, Chandler, See, majority points e.g., the fact that to Montez-Torres her. LLCv. argument (2008) raised a completely to the 289 S.W.3d 63 It is majority say unnecessary engage court. What the does is that majority not to in a analysis Montez-Torres in brief to this court re- that convoluted on an issue is not peatedly interesting the properly states that issue in this case even before I find it us. majority’s only my is whether was in response the best interest that the con- it, whether the circuit But, question the the of reframing in the issue before When turns clearly are erroneous findings to retreat court’s majority opportunity creates an witnesses, Bethany in holding largely credibility court’s on the from this Jones, superior 378 S.W.3d to the give special deference limiting the the status of circuit court evaluate position of the seeking visi- witnesses, in which the child’s testimony, situations the their with the child. the home considering tation remains Id. interest. best Inquestion supe- conclusion raises Such was in the fact that the circuit court residing still in the home why a person credibility position to evaluate rior would ever need assert inter- and to determine best witnesses allowing obtain a court order status and M.F., I affirm its order est of would holding, a majority’s visitation. Under 112denying petition for visitation. required be to seek person would This con- order of visitation.

preemptive C.J., Hannah, joins. clusion is nonsensical. Baker, Justice, concurring. Karen R. Moreover, to even majority’s failure n wholeheartedly Although agree I Bethany, a case that cite our decision to affirm the circuit majority’s decision disingenuous, particu- point, is court’s that Foust did not stand fact that the circuit larly light of her to M.F. at time in finding court relied on decision I it—I join petition for visitation—and Foust stood I conclude that separately write just choosing ignore decision al- statutory Arkansas’s scheme does ir- an Bethany, majority has created filed petition low outside in our If reconcilable conflict law. divorce, guard- paternity, an action for point this decision is overrule Betha- ianship. say ny, majority explicitly then the should imagine plight I simply so. cannot case, petiT present In the Foust filed attorneys

practicing judges and circuit independent ac- tion for visitation as murky light of the state of our law. tion; in con- she did junction with a for divorce agree majori- complaint I do not Although I nor filed her ty’s analysis, agree guardianship, do the circuit did she in association with an action to establish denying court’s order visitation should reason, bene- For this I conclude paternity. affirmed. The circuit court had the testimony that under our stat- hearing fit of witnesses’ and utes to her for visitation. observing determining petition their demeanor 498, 29 Floyd, 342 Ark. that it was not M.F.’s best interest Blackwood (2000), ex-wife moved to be allow visitation. This court has held that an stepson. with her former granted we review issues child visitation under a visitation petitioned review. for visitation de novo standard of Brown v. She had Brown, conjunction proceeding, with the divorce S.W.3d approximately 314 findings will not instead waited until reverse the court’s but days decree had been they unless are erroneous. Id. after divorce us, properly I decide issue that is before currence is a hollow accusation that have appellate procedure. namely, confounded the law on was in the child’s whether visitation confounding only thing case The about this best interest. complete analyze majority's refusal to she entered to assert that had established ex-wife had simply long. waited too relationship with a maternal the child and Id. We found no basis for an independent visitation. She con should be awarded ly petition for visitation. private a agreement tended that she had Here we are faced awith similar circum- father, ex-husband, the child’s stance in that Foust filed a petition has for request, child upon allow her visit the divorce, visitation outside the context of a any had father denied paternity, guardianship or action. See visitation when differences arose between § (providing Ark.Code Ann. 9-13-101 Blackwood, parties after the divorce. custody award a in an

342 Ark. at 29 S.W.3d at 695. The upon petition action for divorce or of a father moved to dismiss ex-wife’s mo grandparent intervening a divorce ac- tion, contending ninety days had tion); § Ark.Code Ann. (provid- 9-10-113 passed the parties’ since divorce decree ing parties unmarried, that when the are and, 60(b) was entered under Rule biological Procedure, may petition father for visitation Arkansas Rules of Civil . | ^seeking establishing paternity); was barred from visitation Ark.Code 114after § Ann. any (providing or other 28-65-203 modification for certain chancery divorce The persons petition decree. Id. court to file a for guardianship); dismiss, § denied the motion to treated the Ark.Code Ann. (providing 9-13-103 motion modify for visitation as motion to grandparents when the decree, the divorce and stated that it had child is in the of a custody parent). She jurisdiction “continuing to decide matters likewise agree- contends that she had an visitation, involving custody the ment with Montez-Torres to allow her to paramount being consideration the welfare visit but that Montez-Torres denied and best interests of the Id. child.” at her access a disagreement. after Like the 500, 29 S.W.3d at 696. This court re court, Blackwood I do not find a basis versed, holding that chancery did our for a petition statutes for visitation not have continuing jurisdiction modify divorce, paternity, absent a the divorce decree and award visitation of in guardianship, without expiration after the the ninety-day peri status. provided od for in rejecting Rule 60. majority The does not address the cir- attempts ex-wife’s to file a stand-alone cuit court’s that Foust stood outside the context of a during parentis to the first three proceeding, divorce this court cited sev years of M.F.’s life. I point, On reit- eral in which the cases courts heard evi my opinion expressed my erate dissent dence, they granted denied the Jones, Bethany 2011 Ark. right or visitation at the time of S.W.3d 731. This court must decline Blackwood, the divorce. 502- body regarding create nonexistent law 03, 29 (citing Young S.W.3d persons legislature that the identi- Smith, having rights fied as Id. at to visitation. (1998); Rawlins, Stamps v. (Baker, J., at 745 S.W.3d dissent- (1988); Golden, Golden v. ing). designed Our statutes are (1997); protect 57 Ark. App. 942 S.W.2d 282 Riddle, parents fit make decisions Riddle v. 28 Ark. App. (1989)). regarding upbringing the care and of their determined that asserting any right place infring- children. This court has no divorce, ing upon the time of the of those who are not creating rights persons legislature.

recognized by the

Hart, J., joins.

2015 Ark. 80 ABRAHAM, M.D., and

Dana Carol Hooker,

Gary Appellants Chairman, BECK, M.D.,

Joseph Ar M. Board; The Ar Medical

kansas State Board; and The Medical

kansas State Arkansas, Appellees

State of

No. CV-14-559

Supreme Court of Arkansas. February

Opinion Delivered

Case Details

Case Name: Foust v. Montez-Torres

Court Name: Supreme Court of Arkansas

Date Published: Feb 26, 2015

Citation: 456 S.W.3d 736

Docket Number: CV-14-192

Court Abbreviation: Ark.