Opinion
CV-23-528
11-13-2024
EVA LAYNEE REDMAN (SWEATMAN) APPELLANT v. ADAM REDMAN APPELLEE
Ryan C. Allen, for appellant. Montgomery Wyatt Hardy, PLC, by: Betty J. Hardy, for appellee.
APPEAL FROM THE VAN BUREN COUNTY CIRCUIT COURT [NO. 71DR-18-107] HONORABLE SUSAN WEAVER, JUDGE
Ryan C. Allen, for appellant.
Montgomery Wyatt Hardy, PLC, by: Betty J. Hardy, for appellee.
BART F. VIRDEN, JUDGE
Eva Laynee Redman (Sweatman) appeals from the Van Buren County Circuit Court order that granted custody of her two children born during her marriage to her ex-husband, Adam Redman, to him. We affirm.
I. Relevant Facts
Adam and Laynee were married in 2012 and have two children, MC1 (born in 2012) and MC2 (born in 2014). In January 2017 Laynee and Adam's divorce decree was entered. The parties formed an agreement regarding child custody and visitation that was incorporated into the divorce decree. The terms of the agreement are as follows. The parents shared joint custody, with Laynee as the primary physical custodian. Overnight visitors of the opposite sex were not permitted when the children are in either parent's care, and visitors of the opposite sex could not be present in the home after 10:00 p.m. or before 7:00 a.m. Drug and excessive alcohol use were not allowed around the children. Adam agreed to pay child support, and Laynee maintained health insurance for the children.
On September 5, 2018, Adam filed a petition for a change of custody alleging that there had been a significant, material change in circumstances, and it was in the children's best interest to change custody to him. Specifically, he asserted that Laynee had exposed the children to multiple romantic partners, and her current partner, Johnathon Shoffner, had a history of abuse and lived with her and the children. Adam stated that MC2 slept in the same bed as her mother and Shoffner. Additionally, Laynee instructed the children to lie to Adam, she "yells and screams" at him in front of the children, and she made derogatory remarks about Adam to friends and family. Laynee willfully tried to exclude Adam from attending extracurricular and school events and would not allow additional visitation. Overall, Laynee exhibited a pattern of alienation and controlling behavior and had an "attitude of hatred toward" him. Adam requested that primary custody be changed to him or, alternatively, that the court grant equal custody with additional visitation for special events.
Laynee responded with a petition for contempt and counterclaim for change of custody. Laynee agreed that she had made derogatory comments regarding Adam to friends and family; however, she denied making derogatory comments in front of the children. She requested that she be granted sole legal custody of the children due to material changes that had occurred since the decree was entered. Specifically, she alleged that Adam had stalked her, taken photos of her and then texted them to her, and broken into her home, leaving flowers and love notes for her. Laynee asserted that Adam had married Cheyenne Horton, had a child with her, and then divorced her. While he was married to Horton, he had sexual encounters with six other women and introduced the children to at least three of the women. He allowed his parental rights to the child he had with Horton to be terminated through a single-parent adoption. Once, he was intoxicated when he came to pick up the children and failed a breathalyzer test. Laynee alleged that another time, he came to pick up the children just before 10:00 p.m., and when she refused to let him take the children, he spat in her face, grabbed one of their children, and pinned her by her throat to the car. Then, he drove away with the child, who was crying. Laynee alleged that Adam insisted on being in the dressing room with his daughters and other girls during a dance recital. Additionally, Laynee asked the court to hold Adam in contempt for failure to pay child support.
Adam denied the allegations and explained that he and Laynee were attempting to reconcile when he left the flowers and love notes, and they had free access to each other's homes. He explained that he allowed his parental rights to be terminated to Horton's child, born during their marriage, because the child was not his. He denied he was intoxicated when he came to pick up the children and explained that he requested a breathalyzer, passed it, but then agreed to pick the child up at 8:00 a.m. the next morning "to avoid a scene."
On April 4, 2019, Adam filed a motion for emergency change of custody asserting that on April 2, Laynee left the children in Shoffner's sole care, and he had allowed MC2 to ride on a tractor with him, and she fell off. The cut on MC2's head required four staples, and she scraped her shoulder. Laynee refused to tell Adam which hospital MC2 went to, and when Adam learned they were at Conway Regional, he had to produce the divorce decree to see MC2 because Laynee had not listed him on the paperwork. Also, Laynee had told medical personnel a different story about MC2's injury that involved a tailgate falling and hitting MC2. Adam alleged that Shoffner had a history of physical violence against his wife, and he had been charged with cruelty to animals for shooting a neighbor's horse with a bb gun "for fun." Shofner consistently slept over when the children were present, and Laynee had taken the children to Shofner's home overnight. Laynee had withdrawn the children from their school to attend school in Shofner's district. Adam stated that if he was granted custody, he would allow the children to remain in their current school because there was only a month left.
Laynee denied that MC2's injury occurred the way Adam stated it did. She explained that when she called Adam to tell him about the hospital visit, he berated her on the phone and never asked where their daughter had gone for treatment. She denied filling out any paperwork at the hospital regarding next of kin. Laynee stated that Shoffner's animal-cruelty charge was five years old and had been nolle prossed because he paid restitution to the horse's owners. She denied being uncooperative at exchanges. Laynee asked the court to deny the petition because Adam had alleged most of this in his original motion, and none of his accusations constituted an emergency.
After a hearing on the motions, the circuit court found Laynee in contempt for violating the court's orders and sentenced her to thirty days in jail but suspended the sentence. The court denied Adam's request to change custody and, instead, made changes to the order "to ensure that everyone understands the ground rules." Those changes included detailed instructions regarding visitation, school pick up, communication with the children during the other parent's visitation, grandparent visitation, the prohibition against overnight guests of a romantic nature, no contact between the children and Shoffner, communication regarding emergency-room visits, and generally being civil to each other in front of the children.
Laynee was also found in contempt for failing to pay the personal-property tax to Arkansas Federal Credit Union as directed in the divorce decree.
On April 21, 2022, Adam filed a motion to modify parenting time and for child support. He requested that the court make him the primary physical custodian with visitation to Laynee for the following reasons. Laynee had changed the children's school three times in the last two years, they were consistently late to school, she enrolled the children in activities during his visitation with them, her home was unstable, she had been accused of contempt in her other divorce case, and she continued to have romantic guests overnight. Laynee disrupted communication and visitation and made exchanges unnecessarily difficult. She continued to disparage him in front of the children, and she encouraged the children to lie to Adam.
On December 8, Adam filed a motion for contempt regarding part of the property agreement and because she had taken the children to the emergency room more than once and failed to notify him. Laynee scheduled MC2's medical appointments and surgery without telling him, and she continued to schedule activities during his parenting time. Additionally, Laynee had engaged in numerous romantic relationships involving overnight guests.
On January 9, 2023, Laynee filed her own motion for contempt alleging that Adam was in arrears on child support.
A hearing was held on January 11, 2023. There was testimony and evidence regarding Laynee's romantic partner's habit of staying the night when the children were present, instances when Laynee planned an event during Adam's time with the children and made them ask Adam if they could attend the event, and Laynee's refusal to honor the visitation schedule during holidays and weekends. Adam described how Laynee's relationship with MC1's baseball coach led to MC1's being kicked off the team. Adam explained that on one occasion, Laynee told him MC1 was ill and needed to stay with her through his weekend visitation; however, Adam later learned that she took MC1 to play in a baseball tournament that weekend. Another time, Laynee told Adam the children were attending a birthday party for a friend when they actually went to the lake with her family. Laynee explained that she let the children decide which activities they wanted to attend, and if it was on Adam's weekend, then she let the children ask him if they could skip his visitation, and eventually Adam would agree. Laynee stated that she never intended to lie, but sometimes the plans changed, and she failed to inform Adam. Adam accused Laynee of taking MC2 to Dallas to stay with her boyfriend's family over a weekend without his permission, which Laynee denied. Adam testified that Laynee failed to tell Adam about MC2's doctor appointments and only told him about her tongue-tie surgery the day before it happened. Laynee explained that the surgery was a simple procedure and that it came up quickly without time to consult Adam. School records were submitted to the court, and they showed that Laynee's current husband was listed as the children's father and that the children were often tardy. Laynee denied filling out the paperwork and that the children had been excessively late to school. At the close of Adam's case, Laynee moved to dismiss, arguing that Adam had not presented evidence of a material change requiring a change of custody. Adam responded that no material change of circumstances was required to modify visitation when the parents share joint custody, and moreover, a material change was evident from the testimony.
From the bench, the court ruled that Laynee was not credible and that there was a substantial change of circumstances that warranted a change of custody. The court found the following: Laynee had disregarded court orders, which was evidenced by the text messages stating that she did not care if it was Adam's time, and she was taking the kids. She placed responsibility on the children to ask their dad to give up his time, and she had not told Adam about emergency-room visits. On Adam's birthday weekend, she scheduled a trip to Branson with the children, which Adam agreed to because Laynee had built up the anticipation for the kids, and he did not want to disappoint them. Laynee had four boyfriends in four years, one of which was married, who also had been violent with her. She listed her latest husband as the parent of her children, and the children were late to school twenty-one times. Laynee was dishonest when she told Adam that MC1 was sick but then took them to a baseball tournament. Her promiscuous behavior was the reason MC1 was no longer allowed on a baseball team, and Laynee did not consult Adam about the children's activities. The court awarded Adam full custody with visitation to Laynee. The court deferred the issue of child support to a later hearing.
On February 16, counsel for Adam sent a letter to the circuit court explaining that she had drafted a proposed final order for the court's approval, and she had provided a copy to Laynee's counsel as well. Laynee objected to the proposed order because certain language in the written order was not included in the original ruling from the bench. In an email sent on February 9, Adam's counsel clarified that she was including the words "best interest" because, although the court clearly made a best-interest finding, the court did not use those exact words. The circuit court responded that the words should be included in the order.
On February 23, the court entered a final order changing primary custody to Adam. In it, the circuit court found that there had been a substantial change of circumstances and that it was in the children's best interest to change primary custody to Adam. Supporting this determination, the court found that Laynee was not a credible witness and considered her disregard of court orders; the texts from her to Adam stating, "I don't care if it's your time"; and unilaterally deciding that she was in control of the holiday and birthday visitation schedule, despite the court order. Laynee took the children to Branson during Adam's birthday weekend and had overnight romantic partners. Laynee continued to put her responsibility to communicate with Adam on the children. She manipulated the children, forcing them to tell Adam about doctor's appointments, emergency-room visits, and events planned during his visitation. Laynee's behavior alienated Adam from the children. Laynee's romantic life over the past four years had a negative impact on the children. The children were late for school twenty-one times before the latest motion was filed and seven times after, and she had changed the children's schools without consulting Adam. Laynee timely filed her notice of appeal, and this appeal followed.
II. Discussion
A. Standard of Review
Child-custody cases are reviewed de novo on appeal, but we will not reverse a circuit court's findings of fact unless they are clearly erroneous. Carrillo v. Morales Ibarra, 2019 Ark.App. 189, 575 S.W.3d 151. A finding of fact is clearly erroneous if, after reviewing all the evidence, the appellate court is left with a definite and firm conviction that a mistake has been made. Id. Whether a circuit court's findings are clearly erroneous turns largely on the credibility of the witnesses; therefore, we give special deference to the circuit court's superior position to evaluate the witnesses, their testimony, and the child's best interest. Id. There are no cases in which the circuit court's superior position, ability, and opportunity to observe the parties carry as great a weight as those involving minor children. Id. The primary consideration in child-custody cases is the welfare and best interest of the child; all other considerations are secondary. Id.
B. Points on Appeal
On appeal, Laynee asserts that the circuit court erred by changing custody because (1) Adam did not request a change of custody in his motion; thus, her due-process rights were violated; (2) the court failed to rule from the bench that it was in the children's best interest to change custody, then included the ruling in the written order; (3) there was no evidence supporting a best-interest finding; and (4) changing custody was too drastic a measure in this case.
1. Due process
For the first time on appeal, Laynee contends that she was denied due process under the federal constitution and state constitution because she was never given notice that change of custody was an issue before the circuit court. Though she did assert below that the change-of-custody issue was not asserted in the pleadings, and pleadings are required to be specific, Laynee did not raise this constitutional argument below. A review of Laynee's objections to the circuit court reveals no allegations of a due-process violation. Arguments not raised below, even constitutional ones, are waived on appeal. Tracy v. Dennie, 2012 Ark. 281, at 4, 411 S.W.3d 702, 705. The court ruled that the pleadings were specific enough, and Laynee does not address this argument.
2. Best-interest finding
Laynee argues that the circuit court did not make a specific best-interest finding from the bench; thus, it could not be included in the written order. Additionally, Laynee contends that there is insufficient evidence to support the circuit court's best-interest finding. Her arguments are not well taken.
Laynee cites no requirement that the written order exactly reflect the bench order, and we know of none. Although the circuit court's bench ruling does not specifically contain the words "best interest," there is a presumption that a circuit court made the findings necessary to support its judgment that custody would be changed; thus, we presume that the circuit court considered the children's best interest in making the decision to change custody. See Cordell v. Hylle, 2022 Ark.App. 209.
There is sufficient evidence regarding the best interest of the children for the court to have considered, and the decision to change custody was not clearly erroneous. Modification of custody is a two-step process: first, the circuit court must determine whether a material change in circumstances has occurred since the last custody order; and second, if the court finds that there has been a material change in circumstances, the court must determine whether a change of custody is in the child's best interest. Shell v. Twitty, 2020 Ark.App. 459, at 4, 608 S.W.3d 926, 929-30. The best interest of the children is the polestar in every child-custody case; all other considerations are secondary. Skinner v. Shaw, 2020 Ark.App. 407, at 11-12, 609 S.W.3d 454, 461. Moreover, the crux of these cases is that a childcustody determination is fact specific, and each case ultimately must rest on its own facts. Self v. Dittmer, 2021 Ark.App. 85, at 9, 619 S.W.3d 43, 48.
We look at whether there has been a material change in circumstances since the issuance of the last order of custody. Szwedo v. Cyrus, 2020 Ark.App. 319, at 9, 602 S.W.3d 759, 766. Failure of communication, increasing parental alienation by a custodial parent, and inability to cooperate can all constitute a material change in circumstances sufficient to warrant modification of custody. Montez v. Montez, 2017 Ark.App. 220, 518 S.W.3d 751. Further, we have held that the combined, cumulative effect of particular facts may together constitute a material change. Shannon v. McJunkins, 2010 Ark.App. 440, at 10, 376 S.W.3d 489, 494.
Laynee argues on appeal that the court placed too much emphasis on Laynee's overnight guests when the children were present. We disagree. The court considered and listed many reasons supporting its decision to change custody, only one of which was Laynee's habit of having overnight guests in violation of the court's order. In ruling from the bench and in its written order, the circuit court extensively recounted the evidence supporting a change of custody, including Laynee's disregard of the court order by interfering with visitation, failing to inform Adam about emergency-room visits, changing the children's school without consulting Adam, having romantic relationships that negatively affected the children, and manipulatively forcing the children to be the go-between, which drove a wedge between Adam and his children.
Our caselaw is replete with cases in which alienation of a parent and other circumstances similar to the instant case support a best-interest finding. See Alsina v. Hicks, 2023 Ark.App. 485, 678 S.W.3d 449; Grove v. Grove, 2011 Ark.App. 648, 386 S.W.3d 603 (mother failed to comply with existing custody and visitation agreement, failed to cooperate in counseling as ordered, alienated the children from a meaningful relationship with father, sought to end or substantially limit contact between father and the children, and intentionally perpetrated or acquiesced in false accusations against father and allowed such statements to be made in the presence of the children); Sharp v. Keeler, 99 Ark.App. 42, 256 S.W.3d 528 (2007) (evidence of continuing pattern of alienation by mother was sufficient to support finding of a material change in circumstances since entry of initial custody order and determination that it was in child's best interest to have custody changed from mother to father); Carver v. May, 81 Ark.App. 292, 101 S.W.3d 256 (2003) (mother's actions in alienating children from father and interfering with visitation detrimentally impacted children's well-being such that best interest of the children required that custody be changed).
We will not substitute our judgment for that of the circuit court, which observed the witnesses firsthand. Wallis v. Holsing, 2023 Ark.App. 137, at 6, 661 S.W.3d 284, 288. Recognizing the superior position of the circuit court to evaluate the witnesses and their testimony, we are not left with a definite and firm conviction that the circuit court made a mistake in determining that changing primary physical custody to Adam was in the best interest of the children. Having reviewed the court's findings, the record as a whole, and the applicable caselaw, we conclude that the court's finding of a material change in circumstances is not clearly erroneous.
3. Contempt as an alternative to changing custody
Laynee contends contempt was a less drastic measure the court could have used to address her behavior. Supporting this argument, she cites Carter v. Carter, 19 Ark.App. 242, 719 S.W.2d 704 (1986), in which our court stated, If the chancellor felt the appellant and her family were trying to thwart the child's visitation with his father or trying to teach the child to dislike the appellee and his family, he had the power to hold her and her family in contempt for failure to comply with the visitation orders. Such contempt powers should be used prior to the more drastic measure of changing custody in order to resolve visitation problems and ensure some stability in the child's life.
Here, the court specifically noted in the oral ruling that holding Laynee in contempt had not been an effective tool in the past. She had already been held in contempt once, and it had not changed her ability or willingness to comply with the court order. Moreover, the only inquiry for this court is whether the circuit court clearly erred in modifying the custody arrangement. In light of our discussion above, we cannot say that the circuit court's modification of custody, which was based on its finding that Laynee's actions were alienating the children from their father in derogation of their best interest, was clearly erroneous. See Alsina, 2023 Ark.App. 485, at 9, 678 S.W.3d at 455.
Affirmed.
ABRAMSON and HIXSON, JJ., agree.