Moore v. Sipes

• Decision Date: 04 February 2004
• Docket Number: No. CA 03-687.,CA 03-687.
• Citation: 85 Ark. App. 15,146 S.W.3d 903
• Parties: Victoria MOORE v. L.C. SIPES and Lois Sipes.
• Court: Arkansas Court of Appeals

146 S.W.3d 903

85 Ark. App. 15

Victoria MOORE v. L.C. SIPES and Lois Sipes.

No. CA 03-687.

Court of Appeals of Arkansas, Division II.

February 4, 2004.

Cross, Kearney & McKissic, by Jesse L. Kearney, Pine Bluff, for appellant.

Noel F. Bryant, P.A., Pine Bluff, for appellees.

ROBERT J. GLADWIN, Judge.

Appellant Victoria Moore appeals from an order appointing appellees L.C. and Lois Sipes guardians of her two minor children. She makes four arguments: 1) the trial court had no jurisdiction in this matter; 2) venue was not proper in Jefferson County; 3) the trial court failed to timely consider her habeas petition; 4) the trial court erred in appointing appellees as guardians for the boys. We reverse and remand on the fourth ground.

Appellant, who lives in North Little Rock, is the mother of Kenneth Sipes born in 1989, and Stephen Sipes, born in 1990. Appellees, who live in Pine Bluff, are the boys' paternal grandparents. The boys' father is Larry Sipes, from whom appellant was divorced in 1995. There is no evidence that, since the divorce, Larry Sipes has supported the children, visited them, or been a part of their lives. He did not participate in this lawsuit.

On October 18, 2002, appellees filed a petition in Jefferson County Circuit Court, asking to be appointed guardians. The boys had been living with appellees for approximately one month at that time and were attending school in Pine Bluff. Appellees sought guardianship based on their belief that they could provide a more stable environment for the children because appellant's frequent moves had caused the children to change schools many times. Appellant responded with a request that the children be returned to her, and she filed a petition for a writ of habeas corpus. In that pleading, she alleged that the boys' placement with appellees was temporary and that she never intended to relinquish custody.

The evidence at trial showed that, from 1998 to 2000, the boys lived with appellant in Pulaski County. Thereafter, they moved to Saline County for several months and, in late 2000, moved to Pearl, Mississippi, as the result of appellant's job transfer. In mid-2002, appellant returned to North Little Rock. In late summer of 2002, she and the boys moved to Vicksburg, Mississippi, and returned to Arkansas in September or October 2002. During a portion of those times, either one or both boys lived with appellees in Pine Bluff and attended school there.

Appellee L.C. Sipes testified that Kenneth and Stephen spent a great deal of time with him and Lois after their mother's divorce, visiting every other weekend and for an extended period during the summers. Beginning in November 2001, Kenneth began spending even more time with them after appellant had moved with the boys from North Little Rock to Pearl, Mississippi. According to Mr. Sipes, appellant called and asked them to take Kenneth in and send him to school in Pine Bluff. Appellant told them that, if they could not take him, she was going to put him in a boys' school because she could no longer handle him. Appellees agreed to take Kenneth, and he lived with them and attended school in Pine Bluff from November 2001 to June 2002. During that time, he got into minor trouble, but there were no major problems with his behavior. Also during this period, appellant (and presumably Stephen) returned from Pearl, Mississippi, to North Little Rock. According to Mr. Sipes, appellant came to see Kenneth once during this period and called him several times. He also said that appellant provided appellees no monetary support during Kenneth's stay.

Appellant retrieved Kenneth in the summer of 2002 and, within a short period, moved with both boys to Vicksburg, Mississippi. The boys started school in Vicksburg, but appellant decided to move back to North Little Rock just after the school year began. According to appellees, appellant called and asked if they would enroll both boys in school in Pine Bluff for the rest of the school year. They agreed and enrolled both boys in September of 2002. Within about one month's time, appellees filed the guardianship petition that is the subject of this appeal.

Mr. Sipes explained at trial that he wanted the children to have a stable home and did not want them moving from one school district to another. He said that Kenneth's school work has improved since he began staying with appellees. Mr. Sipes also expressed concern that someone be home for the children at night. He said that, on one occasion when he had gone to pick up the children in Pearl, Mississippi, appellant told him that, while she had been at work, the children had been out of the house all night.

On cross-examination, Mr. Sipes admitted that appellant is not a bad mother, but he said that he believed the children needed a stable place to stay for more than five or six months at a time. He also agreed with appellant's counsel that appellant's simply moving and taking the children from one place to another did not make her a bad parent.

Appellant admitted in her testimony that she had moved a great deal for the purpose of finding work and that she had been transferred to Pearl by her employer. She admitted that she had a strained relationship with Kenneth. She also said that she had discovered that Stephen had skipped school and that the children had stayed out all night one night while she was at work, despite the fact that she had made arrangements with a neighbor to check on them. However, she felt that the children would be better off with her. She said that she is now situated in North Little Rock with an adequate place for the children with beds, food, clothing, utilities, and transportation and that she and her husband Tony both work. Apparently, Stephen was already living with her at the time of the hearing and was in school in North Little Rock.

Appellant also disputed some of appellees' testimony. She said that, while Kenneth had stayed with appellees the previous year, she had seen him at least every other weekend and talked to him every week. Further, she testified that, when she permitted appellees to enroll the boys in school in September 2002, it was with the understanding that she would be back to get them when she got "straightened out" within a couple of weeks. She denied any intent to leave the children there for the entire school year.

Kenneth testified and expressed his desire to live with appellees. He said that his mother had called the police when he got into a physical altercation with her and with his maternal grandmother. He also said that his mother blamed him for things his younger brother had done and that she had left the boys alone at night occasionally without anything to eat other than Hamburger Helper or macaroni and cheese.

Following the hearing, the trial court ruled from the bench that appellant was not suitable as a guardian, stating that "the Court having heard testimony about the living conditions and the supervision of these children and the moving around and their grades in school and all of the above has a real hard time finding that [appellant] is suitable at this time as the guardian...." The court also took into consideration Kenneth's testimony that he wanted to remain with appellees. The court then appointed appellees guardians of the persons and estates of Kenneth and Stephen and awarded appellant visitation.

Appellant argues first that the probate court had no jurisdiction in this case because jurisdiction was either in juvenile court, by way of a dependency and neglect or a Family In Need of Services (FINS) proceeding, or in chancery court by way of a custody proceeding. We disagree. Since the implementation of Amendment 80, circuit court jurisdiction includes all matters previously cognizable by circuit, chancery, probate, and juvenile court. See Amendment 80, § 19(B)(1); Administrative Order No. 14, §§ 1(a) and (b), 344 Appx. 747-48 (2001). By statute, a circuit court is now vested with jurisdiction to appoint a guardian. See Ark.Code Ann. § 28-65-107(a) (Supp.2003). Therefore the circuit court in this case had subject-matter jurisdiction. Further, this case is not necessarily, as appellant argues, better suited for a juvenile or chancery proceeding. Probate proceedings, as well as juvenile and chancery proceedings, often concern matters of child custody and parental rights. Custody suits and guardianship petitions involving minors are similar in that each may limit parental rights and may award custody based on the best interest of the child. See generally Robins v. Arkansas Social Servs., 273 Ark. 241, 617 S.W.2d 857 (1981). See also 4 Lynn Wardle, et al., Contemporary Family Law § 41.05 at 49 (1988) (stating that "when a guardianship proceeding is contested, the court must resolve the dispute according to the best interest of the proposed ward. In this, it is similar to custody after divorce.") Thus, custody determinations may be made in both types of cases. In numerous instances, our courts have made what amount to custody determinations involving minors in the context of a guardianship proceeding. See, e.g., Blunt v. Cartwright, 342 Ark. 662, 30 S.W.3d 737 (2000); Bennett v. McGough, 281 Ark. 414, 664 S.W.2d 476 (1984); Hooks v. Pratte, 53 Ark.App. 161, 920 S.W.2d 24 (1996); In re Guardianship of Markham, 32 Ark.App. 46, 795 S.W.2d 931 (1990); Marsh v. Hoff, 15 Ark.App. 272, 692 S.W.2d 270 (1985); Monroe v. Dallas, 6 Ark.App. 10, 636 S.W.2d 881 (1982). We therefore hold that the trial court did not err in hearing...