JERRY JEFFERS APPELLANT V. MONICA WIBBING APPELLEE
No. CV-20-523
ARKANSAS COURT OF APPEALS DIVISION IV
Opinion Delivered: May 12, 2021
2021 Ark. App. 239
HONORABLE ANNIE POWELL HENDRICKS, JUDGE
APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, GREENWOOD DISTRICT [NO. 66GDR-12-227] AFFIRMED
This is a domestic-relations dispute between appellant Jerry Jeffers and appellee Monica Wibbing. Monica has primary custody of the parties’ eight-year-old son, W.J., and Jerry filed a motion seeking joint custody. The trial court entered an order denying Jerry‘s motion finding that there had been no material change in circumstances and that joint custody was not in W.J.‘s best interest. Jerry now appeals from the trial court‘s order.
On appeal, Jerry argues that the trial court erred in denying his request for joint custody of W.J. Jerry also argues that, because the trial court erred in failing to award joint custody, the trial court‘s award of child support against Jerry was also erroneous. Finally, Jerry challenges a provision in the trial court‘s order that prohibits the parties from having overnight guests of the opposite sex to whom they are not married while W.J. is in their care. We affirm.
On May 14, 2019, Jerry filed a motion for joint custody. In Jerry‘s motion, he made the following allegations:
- At the time of the entry of the Order awarding Jerry visitation, Jerry did work most of the time out of town and was away for extended periods of time.
- Jerry‘s work schedule is now such that Jerry will work for two (2) weeks out of town and then Jerry is off work and back home for a period of two (2) weeks. Jerry resides in the same home town as Monica and the minor child, which is the City of Greenwood, Arkansas.
- Jerry has another child which was born during this year, 2019. Jerry lives in a stable and wholesome environment and has stable employment. The parties’ minor child should be allowed to enjoy and be a part of Jerry‘s home and family environment.
- Monica works a full-time job and is working during the periods that Jerry is off work.
- The favored custody arrangement now for the State of Arkansas as reflected by the public policy statement of the Arkansas General Assembly is that parents
should be awarded joint custody when possible. There is no reason why Jerry should not be able to enjoy joint custody and for the minor child to benefit from a joint custody arrangement where the minor child can spend equal time with both parents.
In his motion, Jerry also asked that his child-support obligation be abated or reduced.
In Monica‘s answer to Jerry‘s motion, she denied that joint custody should be awarded. Monica also filed a countermotion to modify visitation and for contempt. In her countermotion, Monica asked that the previously ordered visitation be modified based on Jerry‘s current work schedule to ensure that visitation occurred when Jerry was home from work. In addition, Monica sought to hold Jerry in contempt for an arrearage in his child support obligation.1
A hearing on Jerry‘s motion and Monica‘s countermotion was held on January 21, 2020. Three witnesses testified at the hearing: Jerry, the mother of Jerry‘s second child, and Monica.
Jerry testified that he moved from Charleston to Greenwood in the beginning of 2018. He stated that he lives in a three-bedroom house that is only a five-minute drive from Monica‘s house. Jerry stated that he moved there to be closer to W.J.
Jerry stated that he has a nine-month-old son, B.J. B.J. and B.J.‘s mother, Makaela Eudey, live with Jerry. Jerry is not married to Makaela, and he stated that she moved in with him in July 2018, which was shortly after she became pregnant with B.J. Jerry testified that W.J. and his little brother, B.J., get along great.
Jerry indicated that he has a close and loving relationship with W.J. He stated that they are “best friends.” Jerry stated that Monica has always thought of him as a good father and that he “absolutely” thinks Monica is a good mother.
Jerry testified that between 2014 and 2019 he and Monica worked very well together in making decisions involving W.J. and in accommodating Jerry‘s visitation with W.J. Jerry indicated that Monica would often afford him significant visitation beyond the court-ordered standard-visitation schedule. However, Jerry stated that this changed in early 2019 when Monica became less cooperative and was resistant to affording him extra visitation. Jerry made no claim that Monica had denied him any visitation under the court-ordered standard-visitation schedule, but he stated that she began denying him his once weekly “first right of refusal” visit that was to be exercised during Monica‘s work hours.2
However, Jerry stated that he had no complaints about Monica‘s mothering and that “I wouldn‘t say she‘s done anything negative.” Jerry stated, “I would just like to have more time with my son.”
Jerry testified that W.J. has been diagnosed with ADHD. He agreed that, in light of that diagnosis, it was very important for W.J. to have a consistent routine.
Monica Wibbing was the final witness to testify. Monica stated that she owns a house in Greenwood and has worked for Americold in Fort Smith for the past ten years. Monica was married to Billy Wibbing and they have a four-year-old daughter together. Monica and Billy divorced in 2016, and Monica stated that they agreed to joint legal custody but that she is the primary physical custodian of her daughter. Monica currently has a boyfriend, Bryan, whom she has dated for almost a year. Monica stated that Bryan has a house nearby and does not spend the night at her house when W.J. is there.
Monica acknowledged that there was some conflict between her and Jerry beginning in late 2018 when she confronted him about his child-support arrearage. Monica stated that things got hostile, so she decided to limit Jerry‘s visitation to the court-ordered standard-visitation schedule. Monica stated that W.J. loves both of his parents, and she agreed that Jerry is a good father.
Monica stated that W.J., who has ADHD, has been in a routine schedule, and she thought it was important that he maintain his routine. Monica testified that a change to joint custody would be disruptive to W.J., and she asked that she remain the primary custodian.
Jerry argued that he had shown a material change in circumstances and contended that there was no reason why joint custody should not be granted. The trial court announced from the bench that it was directing a verdict in favor of Monica with respect to Jerry‘s motion for joint custody.
On May 8, 2020, the trial court entered an order denying Jerry‘s request for joint custody. The trial court found:
On or about April 1, 2014, this Court entered an Order establishing paternity of the minor child (W.J., DOB: 07/19/2012) and awarding [Monica] primary custody, subject to visitation with [Jerry] pursuant to the Court‘s Standard Order with an initial transition period. The Court finds that at the time of the entry of the 2014 Order, [Jerry] was working a schedule of seven days on and seven days off in the oilfield. The Court finds that since the entry of the 2014 Order, there has been no material change in the circumstances warranting a modification of custody. Specifically, the Court finds that the time [Jerry] has available and home from work is no greater now than at the time the 2014 Order was entered. The Court further finds that there has been no change in [Monica‘s] situation which constitutes a material change in circumstances either. The Court further finds that a modification of custody is not in the best interest of the minor child; specifically, the Court finds that it is not in the best interest of the child for the Court to order a joint custodial arrangement based on the fact that [Jerry] is gone two solid weeks, every other two weeks and the fact that the evidence is clear that [Monica] has been the primary parent for the minor child.
The trial court also modified the visitation schedule, based on W.J.‘s ADHD and need for consistency, to where Jerry‘s visitation was for seven consecutive days each month during
In the order, the trial court also reduced Jerry‘s weekly child-support obligation from $175 a week to $164.68 a week based on Jerry‘s 2019 wages. Finally, the order “specifically prohibits both parties from having overnight guests of the opposite sex to whom they are not married while the child is in their care.”
Jerry‘s first argument on appeal is that the trial court erred in denying his motion to modify custody to joint custody. The party seeking modification of the custody order has the burden of showing a material change in circumstances. Horton v. Parrish, 2015 Ark. App. 306, 461 S.W.3d 718. Generally, courts impose more stringent standards for modifications in custody than they do for initial determinations of custody to promote stability and continuity in the life of the child and to discourage repeated litigation of the same issues. Id. Once the trial court determines that the threshold requirement of a material change in circumstances since the last order of custody has been met, the trial court must then determine which party should have custody with the sole consideration being the best interest of the child. Id.
Generally, in reviewing child-custody cases, we consider the evidence de novo, but we will not reverse the trial court‘s findings unless clearly erroneous. McNutt v. Yates, 2013 Ark. 427, 430 S.W.3d 91. Here, however, a different standard applies because the trial court granted Monica‘s motion to dismiss at the close of Jerrys case.5
Under these standards, Jerry contends that fair-minded persons could have found a material change of circumstances from the evidence presented. Jerry asserts that there were numerous material changes, including his relocation from Charleston to Greenwood, the development of his relationship with W.J., the change in his work schedule, Monica‘s decreased level of cooperation, and the fact that Monica now has another child. Jerry also argues, on the basis of this same evidence, that fair-minded persons could have found that joint custody was in W.J.‘s best interest.
Our supreme court has held, in the context of child-custody modification, that an appellant cannot use the circumstances he created as grounds to modify custody. Brown v. Brown, 2012 Ark. 89, 398 S.W.3d 159. “Our supreme court has been clear that relocation alone is not a change in circumstances warranting a change in custody nor are circumstances created by the party seeking the modification.” Dent v. Wyatt, 2014 Ark. App. 343, at 2; see Davenport v. Uselton, 2013 Ark. App. 344 (holding that the father failed to prove a material change in circumstances to support his petition when he was the one who relocated, and a party should not be permitted to allege a material change of circumstances that he himself has created).
While Jerry‘s decision to move closer to W.J. may be commendable, this change was created by Jerry voluntarily. Jerry‘s relocation, his developing relationship with W.J., and the change in his work schedule were circumstances attributable to Jerry and were insufficient, standing alone, to support a material change in circumstances. Moreover, as found by the trial court, there were no changes with Monica‘s situation that would constitute a material change of circumstances. Although there was some evidence of hostility between Jerry and Monica after Monica approached him about his child-support arrearage in late 2018, Jerry acknowledged that Monica has always been a good mother, and
Jerry‘s next argument is that the child support awarded by the trial court was erroneous. Jerry‘s argument is premised on his claim that the trial court erred in not awarding joint custody. However, having affirmed the trial court‘s denial of joint custody, we affirm the trial court‘s child-support award as well.
Finally, Jerry argues that the trial court erred in ordering the parties to not have overnight guests of the opposite sex to whom they are not married while W.J. is in his or her care. The trial court made these pertinent findings from the bench:
The Court is going to continue to follow the fit and wholesome environment standard, which is that I am not going to allow overnight guests of the opposite sex to whom the father or mother, either one, is romantically involved in the presence of the child.6 I think that‘s confusing. This premise may change in my mind at some point in the future, but based upon no testimony from Ms. Eudey, I heard no testimony from her regarding her relationship with this child. In the confusion of it all, I‘m going to stay with the no overnight guests of the opposite sex to whom you‘re romantically involved in the presence of the child. So you‘ll have to—if you want that visitation to continue like that, you all will have to figure out how to remedy that situation. That‘s just the way I continue to see it, and based upon her testimony, or lack of testimony, regarding your relationship.
On appeal, the supreme court in Moix recognized the long-standing public policy of the courts of this state that a parent‘s extramarital cohabitation with a romantic partner in the presence of the children, or a parent‘s promiscuous conduct or lifestyle, has never been condoned. However, the Moix court reversed and remanded because, rather than making a finding on whether the noncohabitation provision was in the child‘s best interest, the trial court erroneously found that mandatory application of our public policy against unmarried cohabitation required it to include a noncohabitation provision. The supreme court held that the primary consideration in domestic-relations cases is the welfare and best interest of the children and all other conditions are secondary. While the Moix court recognized the policy against romantic cohabitation in the presence of the children, it stated that cohabitation must be considered under the circumstances of each particular case and in light of the best interest
Jerry argues that the trial court erred in deciding the overnight-cohabitation issue without considering the child‘s best interest. Jerry states that the trial court‘s ruling in this regard was based on its mistaken belief that there was no relationship between W.J. and Makaela. Jerry contends that the evidence showed that W.J. has a positive relationship with Makaela as well as with his nine-month-old younger brother and that the overnight-cohabitation ban was not in W.J.‘s best interest.7
We conclude that this case is readily distinguishable from Moix because in this case the trial court made it clear that it was not imposing a blanket prohibition against extramarital cohabitation; its decision was instead based on the facts of this case. The trial court found that there was no testimony from Makaela regarding her relationship with W.J., and this finding was accurate. Nonetheless, Jerry directs us to Monica‘s testimony in an attempt to establish Makaela‘s relationship with W.J. In Monica‘s testimony, she stated that Makaela was “good to W.J.” and “not mean to him” and that, according to Jerry, Makaela
In our de novo review, we will not reverse this finding by the trial court unless it was clearly erroneous. Klenakis v. Klenakis, 2017 Ark. App. 36, 510 S.W.3d 821. In Moix, supra, the supreme court recognized the longstanding public policy that a parent‘s extramarital cohabitation with a romantic partner in the presence of the child has never been condoned. The supreme court in Moix also made it clear that this is not a blanket rule and that this determination must be based on the particular facts of the case and the best interest of the child. Here, the trial court was mindful of the public-policy consideration against extramarital cohabitation and the prohibition of a blanket ban as set forth in Moix. Based on these considerations and the evidence presented, the trial court stated in pertinent part:
The Court is going to continue to follow the fit and wholesome environment standard, which is that I am not going to allow overnight guests of the opposite sex to whom the father or mother, either one, is romantically involved in the presence of the child. I think that‘s confusing. This premise may change in my mind at some point in the future [.]
While the trial court did not state this particular provision in the order was “in the best interest of the child,” it did state that such visitation with overnight guests of the opposite sex is “confusing.” It is clear from the context of the trial court‘s statement that it was referring to the best interest of the child. On this record, we cannot conclude that this finding was clearly erroneous.
GLADWIN and BARRETT, JJ., agree.
Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for appellant.
Bryant & Estell, LLC, by: Veronica L. Bryant, for appellee.
KENNETH S. HIXSON
JUDGE