Atchley v. Atchley , 2017 Ark. App. LEXIS 653 ( 2017 )

Cite as 2017 Ark. App. 575
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-17-255
Opinion Delivered November 1, 2017
JIMMY EARL ATCHLEY APPEAL FROM THE SCOTT
APPELLANT COUNTY CIRCUIT COURT
[NO. 64DR-11-139]
V.
HONORABLE DAVID H.
CASSIE ANN ATCHLEY MCCORMICK, JUDGE
APPELLEE
REVERSED AND REMANDED FOR
FURTHER PROCEEDINGS
N. MARK KLAPPENBACH, Judge
In this one-brief appeal, appellant Jimmy Earl Atchley appeals from the Scott County
Circuit Court’s order that granted appellee Cassie Ann Atchley’s motion for directed verdict
at the hearing on his motion to change custody of their children. We reverse and remand for
further proceedings.
Jimmy and Cassie married in 2003, separated in 2011, and divorced in 2013. They had
three children of the marriage: GA, EJA, and WA. Cassie was awarded custody, Jimmy was
awarded reasonable and flexible visitation, and a “Standard Order of Visitation” was
incorporated into the decree. Both parties were ordered to “maintain the minor children in
a healthy and wholesome environment at all times, with no overnight visitors of the opposite
sex (to whom a party is not married or related) when the children are present.” Both parties
Cite as 2017 Ark. App. 575
were ordered to have appropriate beds for the children when they spent the night.
Three years later, in June 2016, Jimmy filed a petition to change custody. At that
time, the twins GA and EJA were eleven years old, and WA was ten years old. EJA suffered
from cerebral palsy, Asperger’s syndrome, lung disease, ADD, and ADHD, and required
medications to treat those conditions. Jimmy’s petition alleged that since the divorce decree
was entered, material changes in circumstances had occurred and that custody should be
changed to him. Specifically, Jimmy alleged that Cassie systematically and continually had the
children in an unwholesome environment; that Cassie had not provided appropriate medical
care for their special-needs child, EJA; and that Cassie had regularly consumed large amounts
of alcohol in the children’s presence. Cassie filed a general denial to Jimmy’s allegations.
The matter was heard in December 2016. Jimmy testified on his own behalf, and he
called Cassie and EJA as witnesses. Cassie testified that she had lived with the children in one
home until it burned, and then she moved to a rental house for a few months in 2015. She
agreed that Preston Bays stayed occasionally at the house, but she claimed that it was not a
romantic relationship, that Bays helped her around the house, and that she knew him prior
to his high school graduation when he was a student and she was a substitute teacher. For
about a month at the end of 2015, Cassie had the children move in with Jimmy because her
new house was not ready. During that time, Cassie stayed with a friend, Brian Zimmer, and
the children stayed overnight with her at Zimmer’s house on a couple occasions. She said
that she would sleep on the couch, and the children would sleep on a bed, the couches, or
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a hide-a-bed.
Cassie had since moved into a rental house that she intended to buy; she had lived
there most of 2016. She said that this house had one bathroom and she had “made it into a
three bedroom.” She considered the laundry room one of the three bedrooms by putting a
full-size bed and bunk bed in there. She said that GA shared the laundry room with Cassie’s
other daughter Kelly when she would visit on alternate weekends. She stated that her boys
shared a bedroom, and she had her own bedroom. Cassie testified that a former boyfriend,
David Haddocks, had stayed overnight at this house about five times and that one or two of
those times the children were present.
Cassie admitted that she does consume alcohol and had been intoxicated in front of the
children, but she stated that she had not been intoxicated to the point she could not control
herself. She thought that she had been intoxicated in front of the children fewer than ten
times since the divorce. She said that her doctor told her to take “a couple of shots” at night
for her occasional back pain but that she would do that only after the children were settled
down and getting ready for bed.
Cassie said that she filled EJA’s medicines at the local Walgreens but that those records
showed that she had not refilled his clonidine since December 2015. She agreed that EJA
drew SSI benefits, that he had lost entitlement to those benefits right after the divorce in
2013, and that she did not reapply until summer 2016. She explained her delay in
reestablishing his SSI by stating that she “was working odd jobs and was doing okay.” Cassie
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acknowledged that in June 2016, GA had fallen on the gravel driveway while she was chasing
Cassie’s truck, and her knee injury required a trip to the hospital and sixteen or seventeen
staples. Cassie described her method of discipline, which included verbal reprimand, use of
a flyswatter, and use of a ping-pong paddle.
Then-twelve-year-old EJA testified, stating that his mother had him keep up with all
his medications, which included pills and an inhaler. EJA said that he could not find one of
the pills he was supposed to be taking (clonidine), although he and his mother had looked for
it. EJA said that they had attended the chuck-wagon races back in April and that his mother
had left all the children in her horse trailer at night. He explained that his mother had beds
and a heater in the horse trailer, and she would put a tarp over the top of it. She would leave
the children there and tell them to go to sleep. One night, EJA and a man named Tim
Boatman had to help his mother get back to the trailer; she had stumbled into a truck as she
was walking. EJA explained that Boatman worked at the chuck-wagon races, that Boatman
was staying in a building in one of the barns, that he would “go crazy when he would drink,”
that he would cuss at them, and that he would tell them to “get out of his house.”
Jimmy testified that he has a five-bedroom, three-bath house for his children; it was
the same house he had had since the divorce; and he has the same job he had at the time of
the divorce. Jimmy stated that he does not have a girlfriend living with him. He said that
Cassie asked him to keep the children at the end of one summer because her house needed
to be fumigated for bugs. Jimmy wanted custody of his children.
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At the conclusion of Jimmy’s presentation, Cassie’s attorney moved for directed
verdict1 on the basis that the evidence was insufficient to support a prima facie showing of a
material change in circumstances that would warrant a change in custody. The trial court
granted the motion. The trial court remarked that the chuck-wagon races were “not the best
atmosphere” for the children; that it was a little concerned over how much Cassie thought
she was drinking; and that she had by necessity moved a couple of times. The trial court
concluded that the changes were not material and significant enough to show a change of
custody to be in the children’s best interest. In the order on appeal, the trial court made the
finding that Jimmy failed to present a prima facie case on his motion to change custody and
that Cassie was not required to mount a defense against this petition.
The standard of review is well settled. It is the circuit court’s duty, in deciding a
motion to dismiss made after the presentation of the plaintiff’s case, to determine whether, if
the case were a jury trial, there would be sufficient evidence to present to a jury. Wagner v.
Wagner, 2011 Ark. App. 475; Woodall v. Chuck Dory Auto Sales, Inc., 347 Ark. 260, 61 S.W.3d
835 (2001). The circuit court does not exercise its fact-finding powers, such as judging the
witnesses’ credibility, in making this determination. Wagner, supra. On appeal, we view the
evidence in the light most favorable to the nonmoving party, giving the proof presented its
highest probative value and taking into account all reasonable inferences deducible therefrom.
Id. We affirm if there would be no substantial evidence to support a jury verdict. Id. In other
1
In reality, this was a motion to dismiss because it was presented at a bench trial.
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words, when the evidence is such that fair-minded persons might reach different conclusions,
then a jury question is presented, and the directed verdict should be reversed. Id.
Arkansas law is well settled that the primary consideration in child-custody cases is the
welfare and best interest of the children; all other considerations are secondary. Harris v. Harris,
2010 Ark. App. 160, at 13, 379 S.W.3d 8, 16. A judicial award of custody will not be
modified unless it is shown that there are changed conditions demonstrating that a
modification of the decree will be in the best interest of the child, or when there is a showing
of facts affecting the best interest of the child that either were not presented to the circuit
court or were not known by the circuit court at the time the original custody order was
entered. Stehle v. Zimmerebner, 375 Ark. 446, 291 S.W.3d 573 (2009). Generally, courts
impose more stringent standards for modifications in custody than they do for initial
determinations of custody. Grisham v. Grisham, 2009 Ark. App. 260. The reasons for requiring
more stringent standards for modifications than for initial custody determinations are to
promote stability and continuity in the life of the child and to discourage repeated litigation
of the same issues. Id. The party seeking modification has the burden of showing a material
change in circumstances. Byrd v. Vanderpool, 104 Ark. App. 239, 290 S.W.3d 610 (2009).
There is no requirement that the trial court wait until the children are actually harmed before
finding that a material change in circumstances warranting a change in custody exists. Sisson
v. Sisson, 2012 Ark. App. 385, 421 S.W.3d 312.
Jimmy’s sole point on appeal is that the trial court improperly granted the motion to
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dismiss and failed to require Cassie to mount a defense to the allegations. We agree. We
must view the evidence in the light most favorable to the nonmoving party (here, Jimmy),
giving the proof presented its highest probative value and taking into account all reasonable
inferences deducible therefrom. Aydani v. Wagner, 2011 Ark. App. 475. Viewed from that
perspective, Jimmy presented evidence that Cassie had been repeatedly intoxicated in front
of her children and had been regularly consuming concerning amounts of alcohol; that their
twelve-year-old special-needs child had been put in charge of his own medications and had
not had certain medicines filled by his mother for a year; that their special-needs child had had
his disability benefits cut off and not reinstated for a significant period of time; that Cassie had
taken her children to what even the trial court believed was a less than wholesome
environment; that she left her young children alone to sleep in a tarp-covered horse trailer and
had to be assisted by her special-needs son in returning (the reasonable inference being that
she was intoxicated); and that Cassie had repeatedly had overnight visitors of the opposite sex
in violation of their divorce decree’s explicit order. Moreover, Jimmy provided evidence that
he had maintained his employment and living situation, all while not having overnight visitors
of the opposite sex or engaging in otherwise inappropriate behaviors. Instead, Jimmy had
exercised his visitation and had willingly taken the children additional times when Cassie
requested.
Given our standard of review, we must agree with Jimmy that the trial court erred in
granting the motion to dismiss because it did not view the evidence in the proper light. See
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Sisson, supra. At that juncture, the trial court was not to weigh the evidence or make
credibility determinations; all the evidence was to be viewed most favorably toward Jimmy’s
petition. Certain factors, when examined in the aggregate, may support a custody
modification even when each factor, if examined in isolation, would not. Boudreau v. Pierce,
2011 Ark. App. 457, 384 S.W.3d 664; Davis v. Sheriff, 2009 Ark. App. 347, 308 S.W.3d 169.
Fair-minded people could have undoubtedly come to differing conclusions on this evidence.
Compare Westin v. Hays, 2017 Ark. App. 128, 513 S.W.3d 900. It was improper to summarily
dismiss Jimmy’s petition to change custody where a prima facie case was presented.
Reversed and remanded for further proceedings.
VIRDEN and BROWN , JJ., agree.
Medlock & Gramlich, LLP, by: M. Jered Medlock, for appellant.
One brief only.
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