Jones v. Jones

• Decision Date: 11 October 1995
• Docket Number: No. CA,CA
• Citation: Jones v. Jones, 51 Ark.App. 24, 907 S.W.2d 745 (Ark. App. 1995)
• Parties: Christine M. JONES, Appellant, v. Jerry A. JONES, Appellee. 94-1022.
• Court: Arkansas Court of Appeals

Page 745

907 S.W.2d 745

51 Ark.App. 24

Christine M. JONES, Appellant, v.Jerry A. JONES, Appellee.

No. CA 94-1022.

Court of Appeals of Arkansas En Banc.

Oct. 11, 1995.

Samuel A. Perroni, Mona J. Mcnutt, Little Rock, for Appellant.

Helen Rice Grinder, Conway, for Appellee.

ROBBINS, Judge.

On November 13, 1990, appellantChristine M. Jones and appelleeDr. Jerry A. Jones were divorced.The divorce decree incorporated a property settlement agreement which gave custody of their infant child, Cameron, to Ms. Jones and provided that Dr. Jones was to pay $2,000 per month in child support.On Sunday, December 13, 1992, the chancery court issued an emergency ex parte order which provided that Dr. Jones was not required to return Cameron to Ms. Jones following Dr. Jones' weekend visitation and that an emergency custody hearing would be scheduled.The emergency hearing was scheduled for December 16, 1992, and on December 18, 1992, the chancery court issued a temporary order changing custody of Cameron from Ms. Jones to Dr. Jones pending a final hearing.A trial was held in February 1994 for the purpose of hearing Dr. Jones' petition for a permanent change of custody.After the trial, the chancery court determined that there had been a material change in circumstances which warranted a change in custody from Ms. Jones to Dr. Jones.In its order, the court allowed Ms. Jones liberal visitation rights and abated Dr. Jones' child support obligation.Specifically, the chancery court relied on its finding that Ms. Jones was unable to provide for Cameron's emotional needs; that Dr. Jones lived in Conway, which is a much safer environment than Little Rock, where Ms. Jones had recently relocated; and that Dr. Jones had recently remarried and could provide a more stable home than Ms. Jones, who remained single.

For reversal, Ms. Jones raises numerous arguments pertaining to each of the three custody proceedings.She first argues that the trial court exceeded its authority in conducting a child custody hearing on Sunday, December 13, 1992, and abused its discretion in changing custody based upon ex parte communications.As to the December 16, 1992, emergency hearing, Ms. Jones contends that she was not given adequate notice of the hearing as is required by the due process clause of the Fourteenth Amendment, and that the manner in which the hearing was conducted deprived her of due process of law.Ms. Jones also argues that the trial court erred in awarding an emergency change of custody after the hearing because there was insufficient evidence that Cameron was in danger or that it was detrimental for Cameron to be in the custody of Ms. Jones.In addition, Ms. Jones challenges the sufficiency of the evidence with regard to the permanent change of custody to Dr. Jones.She asserts that the trial court's finding that "it question[ed][Ms. Jones'] ability to adequately provide an emotionally stable and wholesome home for the child" indicated a clearly erroneous standard, and that the trial court abused its discretion in finding that her move from Conway to Little Rock was a substantial change in circumstances supporting a change in custody.Ms. Jones further asserts that the trial court abused its discretion in concluding that the remarriage of Dr. Jones, the subsequent birth of a child, and the presence of a step-son was a significant change of circumstances justifying a change of custody.Finally, Ms. Jones argues that the chancellor abused his discretion in refusing to recuse.

We first note that all of Ms. Jones' arguments which pertain to the temporary custody orders are now moot and need not be addressed by this court.It is well settled that a temporary order is terminated upon entry of a subsequent permanent order.Vairo v. Vairo, 27 Ark.App. 231, 769 S.W.2d 423(1989).The rights of the parties in the present litigation have been settled by the final award of custody, and a decision on the merits of the temporary awards would have no practical effect on the rights of the parties.Seeid.However, because error by a chancellor in granting or denying ex parte emergency relief incident to an action seeking a change of custody is virtually always moot and evades review, we will use this occasion to briefly address appellant's contention that the ex parte order here should not have been entered.SeeWright v. Keffer, 319 Ark. 201, 203, 890 S.W.2d 271, 272(1995).

We acknowledge that the matter of emergency ex parte applications in child custody proceedings must be one of the most difficult areas of a chancellor's jurisdiction.This is so because ex parte decision-making is contrary to the basic premise of our justice system that an adversarial presentation of a controversy will result in a better reasoned, and hopefully correct, decision.However, because of the harm which can so quickly be suffered by a helpless child, emergency measures without an adversarial presentation are sometimes necessary to terminate or avoid a perceived harmful situation.While divining the truth can be difficult in adversarial proceedings, it is even more difficult when a chancellor has an ex parte petition and affidavits suddenly thrust upon him.The risk and consequence of erring in rendering ex parte protection to a child can appear to be of lesser gravity than the harm which might result if relief is denied.

The procedural method employed by Dr. Jones in seeking emergency custody of the minor child without notice to Ms. Jones, as the custodial parent, is found only under Rule 65 of the Arkansas Rules of Civil Procedure.This rule provides for injunctive relief where irreparable harm or damage will or might result if such relief is not granted.Section (a)(1) of the rule requires the court to decide the merits of an ex parte request for relief on the basis of assertions of fact contained in supporting affidavits or a verified complaint.Here, Dr. Jones' request for emergency ex parte relief was supported by four documents: Dr. Jones' verified petition and affidavit, a letter from Dr. Gayle Harrison, and a letter from Dr. Justin Ternes.Because the letters from Dr. Harrison and Dr. Ternes were not under oath they could not constitute affidavits.Ark.Code Ann. § 16-40-103(b).The fact that these letters were attached as exhibits to Dr. Jones' verified petition for relief does not bootstrap them into affidavits, and they should not have been considered by the chancellor.This leaves only Dr. Jones' verified petition and affidavit.When the hearsay statements of Dr. Harrison and Dr. Ternes are disregarded, the only remaining allegations of fact addressing the need for relief could only support, if proven, a change of custody after notice and a hearing on the merits, but fall short of establishing such an emergency that irreparable harm would or might result if immediate ex parte relief was not granted.We believe that the chancellor erred by granting ex parte relief under these circumstances.

Although Rule 65 provides for relief without written or oral notice to the adverse party or his attorney where the requisite proof of emergency is shown, we believe the better practice is to give oral notice to the adverse party's attorney, if known and available to receive such notice, prior to submission of the ex parte request.Many times the adverse party may not have retained an attorney at this stage of the proceeding.However, if the ex parte request is incident to a change of custody following an earlier custody award, the attorney who represented the adverse party in the earlier proceeding should be notified unless the earlier proceeding occurred in the distant past.Dr. Jones' petition for ex parte relief was submitted to the chancellor on December 13, 1992.The record reflects that the parties' divorce was granted by decree filed November 13, 1990, some twenty-five months earlier, at which time Ms. Jones was represented by an attorney, Thomas S. Stone.Notice was not given Mr. Stone of the ex parte proceeding.

Ms. Jones also argues on appeal that the chancellor erred by considering the petition for ex parte relief and signing the resulting order on a Sunday, citing Ark.Code Ann. § 16-10-114andChester v. Arkansas Board of Chiropractic Examiners, 245 Ark. 846, 435 S.W.2d 100(1968).Dr. Jones responds to this by denying the applicability of § 16-10-114 to emergency ex parte proceedings, but arguing that even if it is applicable then it is unconstitutional.Because we have found on other grounds that the ex parte order should not have been granted, we will not reach this constitutional issue.SeeBoard of Equalization v. Evelyn Hills Shopping Center, 251 Ark. 1055, 476 S.W.2d 211(1972).

For the same reason we addressed the appellant's argument about the propriety of the ex parte order, we will briefly consider appellant's contention that the chancellor also erred in granting the temporary change of custody order.A hearing was held on December 16, three days after issuance of the ex parte order.While appellant argues that notice was received less than forty-eight hours prior to the hearing, and that she was not given sufficient time to arrange for several other witnesses to testify on her behalf, appellant neither moved to reset the hearing nor to continue the hearing at the conclusion of her proof.

Appellant contends that the evidence before the chancellor was insufficient to support a temporary change of custody.Appellee testified and called Dr. Gayle Harrison, a psychologist, and Dr. Justin Ternes, a child psychiatrist, as witnesses.Appellant testified and called her sister, Dr. Cathleen Burgess, an anesthesiologist, and her pastor, Dr. Arnold Murray.On rebuttal, appellee called Tina Verser, a nurse employed by appellee.The facts were in sharp dispute.However, appellee's expert, Dr. Harrison, expressed her opinion that the child had an adjustment disorder with disturbances of emotion and conduct, and had been traumatized ...