GRAHAM GOODLOE v. MARCIA GOODLOE
No. CV-13-187
ARKANSAS COURT OF APPEALS
October 30, 2013
2013 Ark. App. 624
DIVISION IV
APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FOURTEENTH DIVISION [NO. DR-10-437]
HONORABLE VANN SMITH, JUDGE
Appellant appeals from the circuit court’s denial of his motion to change custody of his two minor children from appellee to himself.1 On appeal, appellant argues that the circuit court erred in not granting appellant physical custody when it found a material change in circumstances and changed educational decision-making authority for B.G. and T.G., and medical decision-making authority for T.G., from appellee to appellant. We reverse.
Appellant and appellee were divorced by consent divorce decree on September 9, 2010. Appellee was awarded primary physical custody of the two minor children: B.G., a six-year-old girl, who attended Episcopal Collegiate School (Episcopal), and T.G., a four-year-old boy who was later diagnosed with autism and attended Access Schools (Access) because
On March 27, 2012, appellant filed a motion for change of custody.3 In support of his argument for changed circumstances, among other statements, appellant stated that (1) appellee allegedly kept the children up all night while appellee drank and used drugs with her friends; (2) B.G. was absent so many days from school during the 2011-2012 school year that the school made a report thereof to the Arkansas Department of Human Services and B.G. might be required to repeat kindergarten; (3) B.G. was sent to school on January 10, 2012, with a piece of glass in her foot; and (4) T.G. was absent so many days that he was in jeopardy of losing his slot at Access which required 90% attendance. The circuit court issued an ex-parte order in appellant’s favor on the same date and ordered both parties to take drug tests.
Following an April 4, 2012 hearing on appellant’s motion, during which the court learned that both parties passed the court-ordered drug tests, the circuit court found that an emergency did not exist and set aside its ex parte order.4 In its order, dated April 25, 2012,
On May 8, 2012, a meeting was held with staff at Access, appellant, and appellee. During that meeting, Access informed appellant and appellee that T.G.’s aggressive behavior was increasing as was the amount of time being spent one-on-one with T.G. They recommended that T.G. see a psychiatrist and start a medical plan. Appellee took no action on Access’s recommendations.
On May 21, 2012, T.G. was suspended from Access for escalating aggressive behavior pending the start of a medical plan. Both appellant and appellee were told that T.G. would not be allowed to return to Access until a medical plan was in place. Again, appellee took no action.
Appellant set up multiple appointments with Dr. Eldon Schulz, one of the doctors who diagnosed T.G. with autism. Those appointments were scheduled during times appellee had T.G. Appellee failed to take T.G. to the appointments, so appellant took T.G. to Dr. Schulz on June 20, 2012, during his scheduled visitation. Dr. Schulz prescribed Clonidine for T.G. A meeting with appellant, appellee, and staff at Access was held the day after T.G.’s appointment with Dr. Schulz on June 21, 2012. At that meeting, appellant informed Access and appellee of the details of T.G.’s appointment with Dr. Schulz, including T.G.’s new prescription. At the close of the meeting, as a result of T.G.’s having a medical plan in place, appellant and appellee were informed that T.G. would be allowed to return to Access, effective July 2, 2012.
On June 25, 2012, appellee filed a motion for contempt against appellant because he took T.G. to Dr. Schulz, allegedly without her knowledge, and had given T.G. medicine over her objection. In her motion for contempt, appellee alleged that T.G. was being treated for his autism by Dr. Carlton Burge, that appellant knew T.G. was being treated by Dr. Burge, and that Dr. Schulz’s treatment was in conflict with the current regimen of Dr. Burge. Appellant responded in a June 28, 2012 filing that he had never been consulted or given any information regarding Dr. Carlton Burge and that he notified appellee of his intent to take T.G. to Dr. Schulz. He also counterclaimed for contempt due to appellee’s failure (1) in the five weeks that had passed since T.G.’s dismissal from Access, to schedule an appointment so that a medical plan could be started as was necessary for his return to Access; (2) to take T.G. to the appointments appellant had previously set, necessitating his action in taking T.G. to see a psychiatrist; (3) to take T.G. to outpatient occupational and speech therapy sessions at Access, during the same five-week time period since May 22, 2012; (4) to consult appellant on T.G.’s treatment; and (5) to allow appellant to communicate with the children when they were in her care.
T.G. did not return to Access on July 2, 2012, as discussed at the June 21, 2012 meeting. Instead appellee sent an email to Ms. Smith, preschool director at Access, notifying her that she did not want T.G. to attend Access. On July 3, 2012, appellant filed an amended counterclaim in which he asserted additionally that appellee withdrew T.G. from Access without his knowledge and that appellant had been notified by Episcopal that B.G. would have to repeat kindergarten.
After a hearing on the parties’ motions on July 10, 2012, the circuit court ordered, from the bench, that T.G. should continue receiving treatment from his current physicians and therapist, that appellant and appellee should follow the doctors’ recommendations, and that T.G. was to attend Access. The issue of custody was reserved for the final hearing. An order to the same effect was entered on August 9, 2012.
A final hearing on the merits of the custody issue was held on September 20 and 21, 2012. At the hearing’s close, from the bench, the court ordered appellant and appellee to go to therapy. The circuit court entered a written order on October 11, 2012. In its written order, the circuit court stated that appellee’s actions in switching B.G. between three schools and her actions with T.G. at Access “compel[led] the Court to place responsibility for all educational decisions regarding the children with Defendant [Graham Goodloe].” While appellant was to consult appellee regarding educational plans for the children, appellant was given authority to make the final decisions. The court ordered physical custody to remain with the mother, finding that “even though significant issues were raised, the totality of the facts presented at Court do not rise to a level of material change of circumstances in which to justify a change of custody.” Finally, the court modified appellant’s visitation to include picking them up at school Friday and keeping them until Wednesday morning every other weekend.5
Appellant filed a motion to modify the court’s October 11, 2012 order. Specifically, appellant requested that (1) he be granted authority to make educational and medical
A hearing on appellant’s motion to modify the order was held on November 13, 2012. From the bench, the court appointed Sheila Strong as therapist for appellee and appellant; granted appellant final authority on medical decisions relating to T.G.’s education; left appellee as primary custodian; and left visitation as previously ordered. An amended order reflecting these changes, its order from the bench during the July 10, 2012 hearing that T.G. return to Access, and leaving all other provisions from the October 11, 2012 order in effect, was filed on November 16, 2012. This timely appeal followed.
This court reviews child-custody cases de novo.6 For custody to be changed, the burden is on the noncustodial parent to prove a material change of circumstances such that a modification of the custody decree is in the best interest of the child.7 The court must first determine that a material change in circumstances has occurred since the last order of
Appellant and appellee agreed, in their September 9, 2010 divorce decree, to a custody arrangement where appellee would have custody of the children. None of the court’s intermediary orders between the divorce decree and its October order and November amended order resolved the issue of custody. An order is not final when it adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties.15 Moreover, where the order appealed from reflects that further proceedings are pending, which do not involve merely collateral matters, the order is not final.16 Because none of the intermediary orders were final, the last order of custody was the divorce decree entered September 9, 2010. Therefore, we are permitted to consider all facts and circumstances arising after entry of the divorce decree in reviewing the circuit court’s decision.
The major change since entry of the divorce decree is that T.G. was diagnosed with autism. A lot of the problems cited by appellant, and the court, stem from T.G.’s diagnosis. In its orders denying appellant’s motion for change of custody, the court cited the following problems with regard to B.G.:
B.G. had twenty absences and nineteen tardies during the 2011–2012 school year, all but six absences and two tardies of which occurred in the first semester of the school year; - appellee’s removal of B.G. from Episcopal several weeks into the school year to enroll her in Forest Park, only to remove her from Forest Park and return her to Episcopal two weeks later; and
- appellee’s enrollment of B.G. in a new school (Holy Souls) as a first grader despite Episcopal’s recommendation that she repeat kindergarten.
Regarding T.G., the court’s cited problems dealt with appellee’s actions at Access and included:
- appellee’s failure to return T.G. to Access for seven and one half weeks after his suspension;17 and
- appellee’s failure to return T.G. to Access once he was permitted to return.18
Despite these issues, the record shows, and the court stated, that B.G.’s absences and tardies “decreased substantially for the Spring 2012 semester,” appellee did not object to Holy Souls’s assessment of and decision to place B.G. in kindergarten one week into school, and B.G. “was performing well at the kindergarten level” by all indications. As to T.G., the court
It is very clear that appellee made some decisions that, at the least, were questionable, but the issue is not whether she made the decisions, as the fact that she made questionable decisions would not, by default, warrant a change in custody. The issue is whether those decisions amount to a material change in circumstances.
The law of child custody cannot be applied in a rigid and mechanical fashion, as to do so conflicts with both statutory and well-settled law that custody awards are to be made in accordance with the welfare and best interests of the child.21 Custody is not awarded to reward or punish either parent.22 The courts must be keenly alert to the necessity of preventing the shortcomings or merits of the parents from overshadowing that which is best for the child.23
In this case, appellee, though supported by a nanny, was unable to get either child to school consistently; made major educational decisions without research;27 was not interactive or involved in T.G.’s curriculum at Access;28 failed to get the required medical plan for T.G.’s return to school;29 and failed to take T.G. to any therapy, only taking him to Dr.
Despite these facts, the court found no material change in circumstances that would require a change of physical custody, but then it specifically found a change in circumstances material enough to require a change in legal custody. Because there was no evidence in the record that appellee’s care of the children was otherwise inadequate, the circuit court chose to modify legal custody by taking the authority for educational decision making for both children, and medical decision making for T.G., from appellee and giving it to appellant. In addition, the court granted appellant additional visitation. While we understand that these modifications were the circuit court’s attempt to tailor the custody agreement in the best way to meet the needs of the children given the circumstances, we find that they are not enough.
Parenting requires constant decision-making. It is illogical that appellant would be granted decision-making authority on such major issues as education and medical, but be
Reversed.
WALMSLEY and HIXSON, JJ., agree.
Dover Dixon Horne, PLLC, by: W. Michael Reif, for appellant.
Hilburn, Calhoon, Harper, Pruniski & Calhoun, Ltd., by: Traci LaCerra and Mary Claire McLaurin, for appellee.