Opinion
CV-23-41
10-09-2024
ZACHARY M. OXLEY APPELLANT v. LARRY RAY LUMPKINS APPELLEE
Westark Law, by: John R. Zaharopoulos; and Reddick Law, PLLC, by: Matthew D. Swindle and Heather G. Zachary, for appellant. Kent Tester P.A., by: Kent Tester, for appellee.
Appeal from the Lonoke County Circuit Court [No. 43DR-16-744] Honorable Jason Ashley Parker, Judge Affirmed
Westark Law, by: John R. Zaharopoulos; and Reddick Law, PLLC, by: Matthew D. Swindle and Heather G. Zachary, for appellant.
Kent Tester P.A., by: Kent Tester, for appellee.
BART F. VIRDEN, JUDGE
The Lonoke County Circuit Court entered an order denying appellant Zachary Oxley's petition to modify custody with respect to his minor daughter (MC1). The trial court ruled that custody of MC1 was to remain with appellee Larry Lumpkins, who stood in loco parentis to MC1. Oxley argues that the trial court erred in denying custody to him as MC1's natural parent because he has not been found unfit. Oxley also argues that, once he established a material change of circumstances, the trial court failed to properly consider the presumption in his favor as the natural parent in its best-interest analysis. We find no error and affirm the trial court's decision.
I. Background
Oxley and Tiffani Davis had a brief romantic relationship, and MC1 was born in June 2011. Oxley's relationship with Tiffani ended around September 2011, and she discontinued contact with him. Oxley saw MC1 again in June 2012 and then had only a few visits with her over the next several years. In the meantime, Tiffani had another child, MC2, whose putative father is unknown. In December 2013, Tiffani married Patrick Davis, and they have two children who are not relevant to this appeal. In September 2016, Tiffani and Patrick began divorce proceedings.
In January 2017, Lumpkins moved to intervene in the Davises' divorce and sought custody of MC1 and MC2 on the basis of his in loco parentis standing to them because Tiffani had left them with him when she began a relationship with Patrick. In February, Lumpkins was granted temporary custody of MC1 and MC2. In March, Oxley petitioned to establish paternity of MC1, and he likewise moved to intervene in the Davises' divorce.
In April, the attorney ad litem (AAL), Chris Lacy, filed a motion for DNA testing because both Oxley and Lumpkins claimed to be MC1's father, and Lumpkins had signed MC1's birth certificate. Lumpkins also claimed to be Tiffani's biological father, and he had raised her until the age of eleven or twelve years old. DNA revealed, however, that Lumpkins is not biologically related to MC1, MC2, or Tiffani. Tiffani had earlier admitted that Oxley is MC1's father, and DNA confirmed as much. The trial court adjudicated Oxley to be MC1's father on July 26, 2017.
On September 14, 2017, Oxley filed a motion seeking custody of MC1, alleging that Lumpkins has no blood relationship to MC1 and that he is a more fit parent than Tiffani to have custody of MC1. In response, Lumpkins argued that Oxley had waived his parental rights by not requesting or attempting to have a relationship with MC1 and by not supporting MC1 even though he knew that she is his biological child.
The Davises' divorce decree was eventually entered on July 26, 2018. On October 19, the trial court awarded custody of MC1 and MC2 to Lumpkins on the basis of his in loco parentis standing and awarded Oxley visitation with MC1. No appeal was taken from this order.
On June 8, 2020, Oxley filed a petition for citation of contempt and for modification of custody asking that Lumpkins be ordered to allow visitation between him and MC1 and that custody be modified to award him primary custody of MC1. Oxley alleged that there had been several changes since the entry of the last order in that Lumpkins had disregarded MC1's personal hygiene; MC1 was neglected in that other younger children had been brought into the Lumpkinses' home; and Lumpkins lacked the ability and desire to foster a positive and healthy relationship between MC1 and Oxley in that Lumpkins had withheld Oxley's visitation with MC1 since March 8, 2020, and permitted only two video visitations after counsel became involved and then had monitored those visitations. Oxley added that Lumpkins appeared to be withholding visitation due to the COVID-19 pandemic and the fact that MC1's half sister, MC2, has a medical condition.
On September 1, 2021, a hearing was held on Oxley's petition to modify custody. Oxley testified that he is married and has two daughters, seven and eight years old, and that MC1 gets along with his family. He said that the last time Lumpkins adhered to the visitation schedule was in March 2020. He said that Lumpkins had texted him to say that he would not get MC1 for visitation because of the COVID-19 pandemic. Oxley said that he had a video call with MC1 in June 2020 around her birthday and that, while the video calls typically lasted ten to twenty minutes, they had dwindled down to three or four minutes because Lumpkins became angry when he (Oxley) asked MC1 if she wanted to speak with his wife and daughters. Oxley testified that Lumpkins claimed that MC1 does not want to speak with his wife, Choni. Oxley said that he was finally able to see MC1 around Christmas 2020 when his lawyer got involved, that he drove two hours and stayed outside Lumpkins's house, and that he did not get a hug from MC1 when he left. Oxley stated that he is aware that MC2 has aplastic anemia and that contracting COVID-19 could be fatal to her because of her compromised immune system. Oxley and Choni testified about the other changed circumstances alleged in Oxley's petition, and Oxley admitted that Choni had called DHS and law enforcement authorities numerous times alleging that Lumpkins was abusing and mistreating MC1 and MC2. Choni's mother, Jennifer Frank, testified about Lumpkins's poor treatment of Choni and her two daughters when returning MC1 from visitation.
Lumpkins testified that MC2 was diagnosed with aplastic anemia in January or February 2020, and medical records were introduced into evidence, including two letters from MC2's treating physician, Dr. Jason E. Farrar. Lumpkins testified that MC2's treatment destroys her immune system and that her doctors had advised that she be isolated and kept away from anyone who is not vaccinated against COVID-19. Lumpkins said that he had spoken with MC2's doctors about MC1's visitation with Oxley and that he had been told to keep MC1 at home-she was not even going to school or church. Lumpkins admitted that MC2 is no longer on the medication that was weakening her immune system and that MC2 had been around a few other individuals at a time when he was withholding Oxley's visitation. Lumpkins testified that MC1 would be devastated if she were separated from MC2 because they have been together their whole lives and that MC1 is very protective and "maternal" toward MC2. Lumpkins testified that DHS caseworkers and law enforcement authorities had been to his home to investigate Choni's allegations and that they had all been found unsubstantiated. Lumpkins's wife testified as well and suggested that Oxley had not pursued visitation with MC1 until his attorney got involved and that Oxley had not attempted to call MC1 until June 2020 when he was prompted to do so. MC1 testified about her close relationship with MC2 and her visitation with Oxley. She testified that Oxley does not attend church with the rest of the family and that she usually plays with her half sisters while Oxley watches sports on the television.
In the first letter dated June 8, 2020, Dr. Farrar discusses MC2's life-threatening condition, her treatment that has left her "severely immunocompromised," and restrictions with specific reference to MC1's visitation with Oxley. In the second letter dated May 26, 2021, Dr. Farrar states his medical opinion that, before MC1 resumes visitation with Oxley, all of the adults and children over the age of twelve in Oxley's home should have received the complete set of COVID vaccines. Also, he states that MC2 should be weaned off of cyclosporine and should remain off of it for a minimum of eight weeks.
Shortly after the hearing, the trial court entered an order reinstating visitation between Oxley and MC1. On September 27, 2022, the trial court entered an order denying Oxley's petition to modify custody.
On November 14, 2023, we remanded the case for the trial court to settle and, if necessary, supplement the record to include a transcript of any subsequent hearings that had been held and any court-ordered reports that had been filed. On February 21, 2024, the trial court entered an order settling the record indicating that there had been no additional hearings or reports; however, the trial court did include in the record an email from the AAL stating his recommendation that there be no change in the custody arrangement based on his opinion that MC1 and MC2 should not be separated.
II. Discussion
A. Natural-Parent Preference and Presumption
Oxley argues that a natural parent has a fundamental right to custody of his or her child, citing Troxel v. Granville, 530 U.S. 57 (2000), which held that there is a presumption that fit parents act in the best interests of their children. See Linder v. Linder, 348 Ark. 322, 72 S.W.3d 841 (2002); Seagrave v. Price, 349 Ark. 433, 79 S.W.3d 339 (2002). Oxley argues that more recent cases show that the preference and presumption in favor of fit, natural parents trump virtually any other relationship that a nonparent may have with a child, including an in loco parentis relationship. See, e.g., Foust v. Montez-Torres, 2015 Ark. 66, 456 S.W.3d 736 (affirming denial of visitation to domestic partner because fit, natural mother had right to direct and control upbringing of her child); McCrillis v. Hicks, 2017 Ark.App. 221, 518 S.W.3d 734 (reversing award of joint custody to in loco parentis domestic partner because custody rights of fit, natural mother could never be abrogated); Priesmeyer v. Huggins, 2021 Ark.App. 410, 637 S.W.3d 274 (reversing award of primary custody to in loco parentis father because we will not abrogate the custody rights of the natural mother without a finding that she is unfit).
The natural-parent preference is not absolute. Lloyd v. Butts, 343 Ark. 620, 37 S.W.3d 603 (2001). The law secures a natural parent's preferential rights only as long as the parent discharges his or her obligations. Id. Here, in awarding custody of MC1 to Lumpkins in the original custody decree, the trial court stated in its oral ruling from the bench that Oxley had not discharged his parental obligations to MC1. Oxley filed no appeal from that decision. See Black v. Howard, 230 Ark. 313, 322 S.W.2d 459 (1959) (where mother did not appeal from the original decree fixing custody of parties' child and neither party contended that the court did not have jurisdiction, mother was not entitled to raise the contention that the trial court misconstrued the law in rendering the original decree). The more recent cases on which Oxley relies are distinguishable in that they were initial custody determinations between a natural parent and a nonparent. Here, Oxley-albeit the natural parent-filed no appeal from the initial determination awarding custody of MC1 to Lumpkins, a nonparent standing in loco parentis, and Oxley now appeals from a custody-modification decision with its more stringent standard.
B. Custody Modification
In reviewing child-custody cases, we consider the evidence de novo, but we will not reverse the trial court's findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Cappelluzzo v. Cole, 2023 Ark.App. 571, 680 S.W.3d 754. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been made. Id. It is well settled that the primary consideration is the welfare and best interest of the child, while other considerations are merely secondary. Id. We give special deference to the superior position of the trial court to evaluate and judge the credibility of the witnesses in child-custody cases, and this deference to the trial court is even greater in cases involving child custody because a heavier burden is placed on the trial court to utilize to the fullest extent its powers of perception in evaluating the witnesses, their testimony, and the best interest of the children. Id.
While a trial court retains jurisdiction to modify an initial custody award, the standard for modification is more stringent than it is for the initial determination. Reynolds v. Reynolds, 2024 Ark.App. 229, 687 S.W.3d 584. A party seeking to modify custody must prove that a material change of circumstances has occurred since the last order of custody or that material facts were unknown to the court when the decree was entered. Id. If that threshold requirement is met, the court must then determine who should have custody with the sole consideration being the best interest of the child. Vest v. Vest,, 2017 Ark.App. 530, 529 S.W.3d 703. The reason for this more stringent standard for modifying custody is to promote stability and continuity in the life of the child and to discourage repeated litigation of the same issues. Id.
Oxley asserts that he established a material change of circumstances as shown by the trial court's expression of concern for the changed circumstances demonstrated when denying Lumpkins's motion for directed verdict and when it "quickly entered an order to address" the "biggest of the material changes," i.e., Lumpkins's violation of its orders when he unilaterally stopped Oxley's visitation with MC1.
Next, Oxley argues that, although the trial court recognized that he has an absolute right to see his daughter and had gone too long without seeing her, the trial court failed to acknowledge the presumption in favor of him-as a fit, natural parent-in determining what is in MC1's best interest. Oxley, relying on Donato v. Walker, 2010 Ark.App. 566, 377 S.W.3d 437, contends that the trial court's decision denying his motion to modify custody appears to have been motivated by its concerns about separating MC1 and MC2 but that the separation of half siblings does not weigh as heavily as the interests of a natural parent in having custody of his or her child.
Donato is distinguishable in that it involved two natural parents and an initial custody determination. The trial court in that case awarded the fit, natural father custody of the child and specifically found that he had assumed his responsibilities for his child from birth by providing care, supervision, and protection. Also, although the half siblings in that case were separated, because the mother was awarded visitation and retained custody of one sibling, who was her biological child, it was noted that there was less concern because the half siblings would still be together during the mother's visitation.
In its written order, the trial court did not find that Oxley proved a material change in circumstances and did not mention best interest. In the absence of a showing to the contrary, we ordinarily presume that a court acted properly and made the findings necessary to support its judgment. Younger v. Ark. Dep't of Human Servs., 2022 Ark.App. 138, 643 S.W.3d 487.
In denying Lumpkins's motion for a directed verdict at the hearing, the trial court simply said that the evidence presented by Oxley on changed circumstances was sufficient to go forward when viewing that evidence and all inferences in Oxley's favor, which is what is required. The trial court, of course, was not bound by its ruling at the close of Oxley's case. The trial court had not heard Lumpkins's evidence at that point and could always reconsider and change its ruling as the evidence was more fully developed at trial. See, e.g., Conagra, Inc. v. Strother, 340 Ark. 672, 13 S.W.3d 150 (2000) (recognizing that a trial court's initial ruling on a motion in limine is a threshold ruling subject to reconsideration). The trial court's ruling on Lumpkins's directed-verdict motion was not an indication that the trial court found that Oxley had, in fact, established a material change of circumstances.
Oxley alleged several material changes in his motion but on appeal refers to only the "biggest" of those changes-the fact that Lumpkins violated the trial court's visitation order when he withheld visitation with MC1. Custody awards, however, are not made or changed to punish, reward, or gratify the desires of either parent. Powell v. Marshall, 88 Ark.App. 257, 197 S.W.3d 24 (2004). A violation of the trial court's previous orders does not compel a change in custody. Id. To hold otherwise would permit the desire to punish a parent to override the paramount consideration in all custody cases, i.e., the welfare of the child involved. Id. We have said that, even when a custodial parent willfully violates court orders, modification is not necessarily warranted because a court's contempt powers should be used before the more drastic measure of changing custody. Geren Williams v. Geren, 2015 Ark.App. 197, 458 S.W.3d 759. Here, while the trial court did not choose to hold Lumpkins in contempt, it did "quickly enter[] an order" reinstating Oxley's visitation.
In our de novo review of the record, we are not convinced that Oxley sustained his burden of proving that Lumpkins's violation of the trial court's visitation order during the COVID-19 pandemic was a material change of circumstances warranting a modification of custody. Considering the unique facts of this case, including MC2's medical records and Lumpkins's testimony that he was following Dr. Farrar's medical advice regarding the effect that MCI's visitation with Oxley could have on MC2's health, we are not left with a definite and firm conviction that the trial court made a mistake in denying Oxley's motion to modify custody.
Affirmed.
GLADWIN and MURPHY, JJ., agree.