Taylor v. Taylor

• Decision Date: 01 May 2003
• Docket Number: No. 02-887.,02-887.
• Citation: Taylor v. Taylor, 110 S.W.3d 731, 353 Ark. 69 (Ark. 2003)
• Parties: Rexayne TAYLOR v. Scott W. TAYLOR.
• Court: Arkansas Supreme Court

110 S.W.3d 731

Rexayne TAYLOR v. Scott W. TAYLOR.

No. 02-887.

Supreme Court of Arkansas.

May 1, 2003.

Eugene D. Bramblett, Camden, for appellant.

Ronald L. Griggs, El Dorado, for appellee.

ROBERT L. BROWN, Justice.

This is an appeal from an order of the circuit court granting a change of custody. Appellant Rexayne Taylor asserts that the circuit court erred in transferring custody of her two children, R.T., then age 9, and A.T., then age 5, to the appellee, Scott "Wes" Taylor. She specifically contests the legitimacy of the twin bases for the circuit court's decision to change custody: (1) that Wes Taylor was better able to provide for the children, both financially and educationally; and (2) that an admitted lesbian living with the children and her, even though there was no sex between the two women, was inappropriate behavior. We agree with Rexayne Taylor that the circuit court abused its discretion in awarding sole custody of the two children to Wes Taylor on these grounds, and we reverse the case and remand.

On November 9, 1999, Rexayne Taylor and Wes Taylor were divorced. Under the divorce decree, they agreed to share joint custody of the children, with Rexayne Taylor being the primary custodial parent. Wes Taylor agreed to pay $591 biweekly in child support. Initially, the parents shared a cordial relationship, and the jointcustody arrangement worked well.

In May 2000, a friend of Rexayne Taylor's, Kellie Tabora, who was an admitted lesbian, moved into her home and began paying her $500 a month for living expenses. On May 2, 2001, a little over a year later, Wes Taylor filed a petition to modify the divorce decree. In his petition, he alleged that there had been a change in circumstances warranting a custodial change for the two boys because his former wife's living conditions were not in the best interest of the children. Rexayne Taylor responded and denied the allegations.

On April 10 and 11, 2002, the circuit court held a hearing on Wes Taylor's petition. Wes Taylor's counsel called both Rexayne Taylor and Kellie Tabora to testify at the hearing, and both women acknowledged that Kellie moved into Rexayne's home in May 2000. Rexayne testified that Kellie slept on the couch most of the time. She added, however, that, on occasion, they would sleep together in Rexayne's bed. Rexayne stated that she was not a lesbian, that she thought homosexuality was wrong, and that she and Kellie did not have a sexual relationship. She further testified that after Wes Taylor filed his petition in May 2001, Kellie slept in a separate bed in a separate room.

In her testimony, Kellie Tabora stated that although she was a lesbian, her last relationship had ended at least three years ago. She testified that she had slept in Rexayne's bed about half the time prior to the filing of Wes Taylor's petition, but that they had had no sexual contact while sleeping in the same bed. Kellie also testified that on three or four occasions, Rexayne's children slept with both women in the same bed. When asked what she would do if the children were teased about her presence in the home, Kellie said she would leave. She further testified that she did not condone a homosexual lifestyle or advocate it.

Wes Taylor presented additional witnesses who testified that he was a good father and that his boys seemed well-adjusted. Each of his witnesses also testified that Rexayne Taylor was a good mother to the boys. Wes Taylor presented testimony from two witnesses that the boys had experienced a change in behavior because of Kellie Tabora's presence: his mother, Barbara Taylor, and his girlfriend, Lynelle Crotty. Mrs. Taylor testified that the difference in the boys' behavior when they are in Kellie's presence and not in her presence is that "they don't come to us when she's present." She further stated that since the divorce, the couple's oldest child, R.T., had experienced a change in personality and was now more withdrawn and cried more often. Lynelle Crotty agreed that R.T. was more withdrawn, while the youngest child, A.T., she believed, became confused when talking about his mother's friend. In addition, Wes Taylor presented several witnesses who testified that they would not allow their children to stay in Rexayne's home, knowing that an admitted lesbian lived there.

Wes Taylor testified that his usual "take-home pay" each week was $1,104 and added that his self-employed business, Taylor Made Systems, was growing and that he now employed seven employees. He testified that he planned to marry his girlfriend, Lynelle Crotty, and that she and others would assist him in caring for the boys, should he be awarded custody. As to his ability to assist the children with their school work, he stated that he had earned a four-year degree in computer science and that his health was good.

Upon learning of Rexayne Taylor's situation with Kellie Tabora, Wes Taylor expressed his concern about how this would affect the children. He told the circuit court that he believed that R.T. knew what "gay" meant and what a "lesbian" is, and that he did not want to wait until it was "too late" to do something about the situation. He said that in his opinion, he could provide a "more ... normal home life and social life than Rexayne" could.

In response, Rexayne Taylor presented testimony from both boys' elementary school teachers that they were well-adjusted and enjoyable children. Neither teacher testified to any behavioral change in the boys. In addition, A.T.'s teacher testified that assuming the other children in the school did find out that A.T.'s mother was living with a lesbian, she did not think there would be any repercussions from his peers, although it was possible that they might tease him. Francis Henley, Rexayne's father, testified that he had not observed any changes in the children other than the fact that they were maturing and growing older. He added that he did not believe that Kellie Tabora's presence in their lives was making any difference.

Monica Smith, the mother of R.T.'s best friend, also testified as part of Rexayne Taylor's case. She stated that her boys often spent the night at Rexayne's home and that she was unaware of any unhealthy influences to which they may have been exposed. She also testified that neither R.T. nor A.T. had displayed any change in their behavior or demeanor. Rexayne Taylor took the stand and stated that she brought home $1,000 each month plus benefits from her flower shop, "All About Flowers," and that she was always supportive of her children. She added that if the court was concerned about Kellie and her continued presence in the home she would ask Kellie to move from her home in order to retain custody.

On April 17, 2002, the circuit court filed its letter opinion. In it, the court found that at the time of the divorce, Wes Taylor made more money than Rexayne Taylor did and was more formally educated.¹ The court further found that Wes Taylor's business had grown and that Rexayne Taylor's flower shop had more or less remained the same. The court concluded that "even though [Wes] was better off financially than [Rexayne] at the time of the divorce it now appears that he is much more financially secure than [Rexayne]." The court stated that it had considered both Wes Taylor's financial ability and education in making the decision to change custody.

The court next considered the "lifestyle and living conditions" of Rexayne Taylor. The court found that both Rexayne and Kellie Tabora had testified that Kellie had lived in Rexayne's home since May 2000, and from May 2000 until May 2001, she and Rexayne had slept in the same bed on numerous occasions. The court observed that both women had denied a sexual relationship and that the sleeping arrangements changed once Wes Taylor filed his petition. The court then made the following observations:

The plaintiff here claims the circumstances of the expressed sexual preference of Kelli Tabora and the fact that she and defendant slept together for approximately one year requires the conclusion that sex occurs. But if the testimony of defendant and Kelli Tabora is accepted as the truth what is present here is that no actual inappropriate behavior but rather the appearance of inappropriate behavior exists. Is that harmful enough to require removal of these children from that environment? It would seem likely that if it is generally known by friends and acquaintances that defendant resides with and also sleeps with an admitted lesbian, that most will conclude sex is involved. This assumption on the part of the public would subject the children to ridicule and embarrassment and could very well be harmful to them. Therefore, it is the conclusion of this Court that residence of Kelli Tabora with defendant and the children even without sex is inappropriate behavior and is a circumstance that justifies changing of custody from defendant to plaintiff. It is at least poor parental judgment on the part of defendant to allow a well known lesbian to both reside with defendant and the children and sleep in the same bed with defendant.

The court declined to award Wes Taylor child support and restricted Rexayne Taylor's visitation rights with the boys to overnight visits when Kellie Tabora was not spending the night with her. On April 18, 2002, an order was entered memorializing the letter opinion.

Rexayne Taylor first claims that at the time Wes Taylor entered into the custody agreement, he was aware of the financial and educational circumstances he now contends constitute a material change in the circumstances of the parties. Thus, she claims, he cannot now use those same grounds as a basis to modify the custody grant. Additionally, Rexayne Taylor maintains that there was no testimony presented that she was not adequately providing for the material and physical needs of the children and that, in fact, the evidence presented demonstrated that she was taking care of the...