Goodloe v. Goodloe

• Decision Date: 26 June 2014
• Docket Number: No. CV–13–1000.,CV–13–1000.
• Parties: Graham GOODLOE, Appellant v. Marcia GOODLOE, Appellee.
• Court: Arkansas Supreme Court

2014 Ark. 300

439 S.W.3d 5

Graham GOODLOE, Appellant

v.Marcia GOODLOE, Appellee.

No. CV–13–1000.

Supreme Court of Arkansas.

June 26, 2014.

Dover Dixon Home PLLC, Little Rock, by: W. Michael Reif and Carl F. “Trey” Cooper, III, for appellant.

Hilburn, Calhoon, Harper, Pruniski & Calhoun, Ltd., by: Traci LaCerra, North Little Rock, Lauren Hamilton, and Mary Claire McLaurin, for appellee.

Opinion

DONALD L. CORBIN, Associate Justice.

This appeal is from child-custody orders entered by the Pulaski County Circuit Court on October 11, 2012, and November 13, 2012. This court granted a petition for review filed by Appellee Marcia Goodloe following a decision by the court of appeals in Goodloe v. Goodloe, 2013 Ark. App. 624, 2013 WL 5872296, wherein the court of appeals reversed the circuit court's order leaving primary custody with Marcia but granting Appellant Graham Goodloe certain decision-making authority with regard to the parties' two minor children, B.G. and T.G. When this court grants a petition for review of a decision by the court of appeals, we treat the appeal as if it had been originally filed in this court. Singletary v. Singletary, 2013 Ark. 506, 431 S.W.3d 234. We remand this case to the circuit court and vacate the order of the court of appeals.

After we had granted the petition for review, Marcia sought and received permission to file a supplemental brief with this court. After her supplemental brief had been filed, Graham filed in this court a motion to dismiss the appeal. Therein, Graham stated that the circuit court had entered an order on March 11, 2014, temporarily changing custody of the parties' minor children to Graham, and the pending appeal was therefore moot. Marcia filed a response, asserting that the appeal was not moot because the circuit court's order was a temporary order that could not be appealed. Moreover, Marcia asserted that it was necessary for this court to clarify what she deemed to be a conflict between this court's decision in Singletary, 2013 Ark. 506, 431 S.W.3d 234, and the court of appeals' decision in this case. This court denied the motion to dismiss on April 17, 2014.

Graham now asserts on appeal that the circuit court erred in refusing to award him physical custody of the children when it found a material change in circumstances justifying a change in educational decision-making authority for B.G. and T.G., and medical decisionmaking authority for T.G., from Marcia to Graham. According to Graham, the circuit court's finding that physical custody should remain with Marcia was contrary to the preponderance of the evidence and not in the best interest of the children.

Although this appeal is not moot,¹ the issues presented regarding a material change in circumstances and the best interest of the minor children have once again changed, as demonstrated by the circuit court's order granting temporary custody to Graham. While the circuit court's most recent order governing custody of the minor children is temporary, Graham has requested a permanent change of custody based on allegations of a material change in circumstances that occurred after entry of the order that is the subject of this appeal.² Thus, any opinion offered by this court with regard to the 2012 orders granting Graham certain decision-making authority but leaving physical custody with Marcia would be purely advisory. And it is well settled that this court does not issue advisory opinions. See DIRECTV, Inc. v. Murray, 2012 Ark. 366, 423 S.W.3d 555. Accordingly, because of the unique procedural history of this case, we remand it to the circuit court for consideration of any pending matters related to the custody of the minor children, B.G. and T.G.

Remanded; court of appeals' opinion vacated.

BAKER, GOODSON, and HART, JJ., dissent.

Courtney HUDSON GOODSON, Justice, dissenting.

Appellant Graham Goodloe has appealed the circuit court's denial of his motion for a change of custody. For reversal, he contends that the circuit court erred by not finding a material change of circumstances and by not granting him physical custody of the children, although the court had found sufficient justification to warrant giving him significant decision-making authority. Rather than address the merits of this controversy, the majority simply remands this case to the circuit court because, via motion to dismiss on grounds of mootness, it has come to this court's attention that Graham has filed another motion for a change of custody and that the circuit court has temporarily changed custody to Graham pending a final hearing. I dissent because this court should address the merits of the appeal.

The circuit court's order denying Graham's motion for a change of custody is obviously a final order. As such, it is subject to appeal. This court has denied Graham's motion to dismiss the appeal as moot because the circuit court's most recent order vesting custody in Graham was only temporary in nature. Regardless of what may be happening in circuit court at this time, the issue raised by Graham in this appeal is ripe for review and should be settled by this court. The majority recognizes that this case is not moot. Because the issue is not moot, it cannot be said that our opinion would be purely advisory. See Chandler v. Martin ex rel. State, 2014 Ark. 219, 433 S.W.3d 884 (recognizing that an advisory opinion is one that offers an opinion on a moot issue). Therefore, this court should address the issue raised on appeal.

JOSEPHINE LINKER HART, Justice, dissenting.

In this case, we granted review after a unanimous court of appeals decision reversed the circuit court and awarded legal custody of the two minor children to their father, Graham Goodloe. Goodloe v. Goodloe, 2013 Ark. App. 624, 2013 WL 5872296. When we grant a petition for review, we treat the appeal as if it had been originally filed in this court. Payne v. Ark. Dep't of Human Servs., 2013 Ark. 284, 2013 WL 3322339. On appeal, Graham argues that the circuit court erred in not granting him physical custody when it found a material change in circumstances and changed educational decision-making authority for B.G., and medical decision-making authority for T.G. from the children's mother, Marcia Goodloe, to him. I would affirm the circuit court.

In the parties' consent divorce decree, entered September 9, 2010, Marcia was awarded primary physical custody of the two minor children: B.G., born July 13, 2006, who was at the time attending a preschool program at Episcopal Collegiate School (Episcopal), and T.G., born October 25, 2007, was too young for a school program and who was diagnosed with autism

four months after the divorce was final. Although Marcia had legal custody, the decree expressly permitted Graham to have “input” on important matters affecting the children, including health-care and education matters.

On March 27, 2012, Graham petitioned for an emergency change of custody. He alleged that (1) Marcia kept the children up all night while she drank and used drugs with her friends; (2) B.G. was absent so many days from school during the 2011–12 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, a school for developmentally disabled children, which required 90% attendance. The circuit court issued an ex parte order in Graham's favor the day he filed his petition and ordered both parties to take drug tests.

Following an April 4, 2012 hearing during which the circuit court learned that both parties had passed the court-ordered drug tests, the circuit court set aside its ex parte order. In its April 25, 2012 order, the circuit court reserved the issue of child custody for a final hearing on the merits. The circuit court noted that it had earlier granted Graham's ex parte motion based primarily on the affidavit of Jacqueline Headlee, who had made allegations of Marcia's drug use and her consorting with drug dealers in her home. However, Headlee did not appear at the hearing. At a subsequent hearing, Headlee did testify, but the circuit court expressly found her testimony to be not credible.

On May 8, 2012, a meeting was held with staff at ACCESS, Graham, and Marcia. During that meeting, school officials informed the parents 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. Marcia did not act on this recommendation. On May 21, 2012, T.G. was suspended from ACCESS for escalating aggressive behavior. His return was conditioned upon T.G. having a medical plan. Graham set up appointments with Dr. Eldon Schulz, one of the doctors who had diagnosed T.G. with autism

. Those appointments were scheduled for times when Marcia had physical custody of T.G., and she did not keep the appointments. On June 20, 2012, while Graham had scheduled visitation, he took the child to Dr. Schulz. Dr. Schulz prescribed clonidine for T.G. After a meeting with ACCESS officials, T.G. was allowed to return to the school, effective July 2, 2012.

However, on June 25, 2012, Marcia filed a motion for contempt against Graham because he had taken T.G. to Dr. Schulz without her knowledge and had given T.G. medicine over her objection. Marcia claimed that T.G. was being treated for autism

by Dr. Carlton Burge, which Graham was aware of, and that Dr. Schulz's treatment conflicted with the treatment recommended by Dr. Burge. Graham denied having been consulted or given any information regarding Dr. Burge and that he notified Marcia of his intent to take T.G. to Dr. Schulz. He also counterclaimed for contempt due to Marcia's failure (1) in the five weeks that had passed since T.G.'s dismissal from ACCESS, to schedule an appointment so that a...