Putt v. Suttles

• Decision Date: 09 November 2011
• Docket Number: No. CA 11–330.,CA 11–330.
• Citation: Putt v. Suttles, 2011 Ark. App. 688, 386 S.W.3d 623 (Ark. App. 2011)
• Parties: Elizabeth Suttles PUTT, Appellant v. Lance Edward SUTTLES, Appellee.
• Court: Arkansas Court of Appeals

2011 Ark. App. 688

386 S.W.3d 623

Elizabeth Suttles PUTT, Appellant

v.Lance Edward SUTTLES, Appellee.

No. CA 11–330.

Court of Appeals of Arkansas.

Nov. 9, 2011.

Melissa Bristow Richardson, Jonesboro, for appellant.

Scott Allen Emerson, Jonesboro, for appellee.

CLIFF HOOFMAN, Judge.

[Ark.App. 1]AppellantElizabeth Suttles Putt appeals from the trial court's decision awarding a change of custody of the parties' two children to appelleeLance Suttles.On appeal, appellant argues that the trial court erred (1) in denying her request for DNA testing to determine the paternity of her eldest child, and (2) in awarding custody to appellee.We affirm.

The parties to this appeal were married in October 1998 and were divorced pursuant to a decree entered on February 1, 2010.A separation and property-settlement agreement was incorporated into the decree.This agreement provided that the parties would share joint custody of the parties' two children, G.S.1(born 12/15/03) and G.S.2(born 5/23/05), and that all child-related expenses would be split equally, with neither party to pay child support.

On August 27, 2010, appellee filed a petition to modify custody, alleging that there [Ark.App. 2]had been a material and substantial change in circumstances since the entry of the divorce decree, due to appellant's remarriage to her current husband, who had since pled guilty to domestic assault and battery charges against appellant.Appellee also alleged that the children had witnessed verbal altercations and abuse between appellant and her husband and that this environment was not appropriate for the children.Appellee asserted that he had a stable home and a stable job that would be conducive to raising the children and prayed that he receive custody and that appellant be required to pay child support.

Appellant filed a response to the petition, denying all of appellee's allegations, and also filed a counterclaim.In her counterclaim, appellant alleged that there had been a material change of circumstances and that it would be in the children's best interest for custody to be awarded to her, because she had remarried and was now a stay-at-home mom.She alleged that appellee had caused problems between her and her husband and also that appellee was not financially responsible and owed her money for child-related expenses.Appellant further requested that the court order appellee to submit to DNA testing to determine the paternity of G.S.1.In appellee's reply to the counterclaim, he denied the allegations and also asserted that appellant's request for paternity testing was barred by waiver, res judicata, and collateral estoppel.

Hearings were held on the petition and counterclaim on October 20 and December 9, 2010.After preliminary argument by counsel, the trial court first addressed appellant's request for paternity testing and stated that it did not have authority to grant DNA testing because the issue of paternity was barred by res judicata and also noted that disaffirmance of [Ark.App. 3]paternity at that point would be contrary to public policy.

The first witness to testify at the hearing was appellee.He stated that under the parties' joint-custody agreement, he had the children on alternating weekends and Thursdays, as well as every Wednesday night, and that he had always picked up the children from school on those days.However, appellee testified that since the children started back to school in the fall, he would arrive at school to pick up the children only to find out that appellant and her husband had already picked them up.Appellee would have to then arrange to meet them later to exchange the children.He further stated that he was unable to communicate directly with appellant regarding the children, because she had blocked his phone number from her cell phone.Appellee testified that he now had to contact her through her husband's phone.He testified as to the unstable nature of appellant's current marriage to John Putt and stated that, since she married him on February 16, 2010, appellant had separated from him and had even filed a petition for divorce and for a restraining order in March 2010, only to reunite with him in July.Appellee indicated that it was since July that he was unable to call appellant directly or to pick up his children from school.He stated that he was very distressed that he could not communicate with appellant or his children on a regular basis as he had before appellant reunited with Putt.Appellee testified as to verbal altercations that had occurred between him and Putt, where Putt had screamed insults and obscenities at both him and appellant in the children's presence.He also testified that his children had sometimes returned with bruises and scratches after being with appellant and Putt and that appellant had told him that, on one occasion, Putt chased after one of the [Ark.App. 4]children in a store and grabbed him, causing a bruise.In addition, appellee stated that Putt had sent him inappropriate texts about his and appellant's sexual relations.Appellee testified that his children call Putt “the bad man,” because appellant had referred to him as such.

According to appellee, he wished to have custody of his children because he did not want them to be in that environment due to his concern for their safety.He testified that he was employed as a police chief and that he still lived in the parties' marital home.He further stated that he had a very good relationship with appellant's family, in contrast with appellant since her remarriage, and that the children would be able to remain in contact with their grandparents and other family if they were in his custody.Appellee testified that his work schedule was flexible enough to allow him to care for the children and that he also would have support from family who live nearby.He admitted that he had experienced some financial problems recently but stated that he was resolving these issues and that he would be able to support his children if he were awarded custody.

In her testimony, appellant admitted that she and Putt had a relationship prior to her divorce from appellee.She also admitted that it had been a tumultuous relationship in the past and that she had even requested an order of protection against Putt, which was then dismissed when they were married in February 2010.Appellant testified that she had requested the order of protection after Putt locked her in the bathroom and physically restrained her from leaving his home, leaving bruises on her chest and arms.She admitted that she was afraid of Putt at the time of that incident but stated that appellee and her mother had convinced her to file the order.Appellant also admitted that she had filed for divorce [Ark.App. 5]from Putt in March 2010, approximately one month after they married, and that a restraining order was filed at that time.She further testified that she had requested that the police charge Putt with assault after an incident in June 2010, where he had blocked her path with his vehicle when her youngest son was present.However, appellant claimed that it was interference from appellee and her family that was to blame for her unstable relationship with Putt and stated that, since she had reunited with him in July 2010, they were undergoing counseling at their church and had a good relationship.She did admit that the police were called in September, when she ran to her neighbor's home wearing only a towel after an argument with Putt, but stated that she and Putt had just needed to “cool off.”Appellant stated that she had limited her contact with appellee and her family because she and Putt had agreed that this was better for their marriage.She testified that she should have custody of the children because she now had a stable home and marriage, she was able to be a stay-at-home mother if she chose, and she took the children to church and Sunday school regularly.She denied that her children were scared of Putt, claiming that they usually chose him to help with homework or to play with them, and stated that it was appellee who had told the children that Putt was a “bad man.”

Appellant's parents testified on behalf of appellee and stated that he should have custody of the children.They also testified that their daughter and Putt had separated several times and that Putt had sent them threatening and inappropriate texts.According to appellant's mother, she was concerned about the safety of her daughter and grandchildren, due to Putt's repeated incidents of controlling and abusive behavior.She further testified that [Ark.App. 6]her relationship with appellant was now strained, that they had very little contact since appellant resumed her relationship with Putt, and that she does not get to see her grandchildren very often unless it is through appellee.Appellant's parents further testified that Putt had made an obscene gesture toward them outside the courtroom that day.

Appellee's niece, Jodie Griffin, testified that when appellant and Putt were separated, appellant told her that she had instructed her children to run, yell, or draw attention to themselves if they saw Putt at school or out somewhere because she was concerned about their safety.Griffin further stated that appellant's counselor had told her to get away from Putt because of his controlling, compulsive personality.Griffin testified that appellee is a wonderful father and that she has a close relationship with the children.However, she stated that she had not been allowed to see the children lately when appellant had custody.

Putt also testified and admitted that he had engaged in inappropriate behavior by sending lewd pictures and texts to appellee and appellant's family.He explained that he only did so because he was hurt and angry at them for interfering with his relationship with appellant and that he was embarrassed by much of his behavior.He also...