Brittany Pelayo v. Wesley Sims

Cite as 2020 Ark. App. 258
ARKANSAS COURT OF APPEALS
Reason: I attest to the accuracy
and integrity of this document
Date: 2021-07-06 14:05:19
Foxit PhantomPDF Version: DIVISION I
9.7.5
No. CV-19-797

BRITTANY PELAYO Opinion Delivered: April 22, 2020

APPELLANT APPEAL FROM THE SEBASTIAN
COUNTY CIRCUIT COURT,
V. GREEWOOD DISTRICT
[NO. 66GDR-18-2596]
WESLEY SIMS
HONORABLE SHANNON L. BLATT,
JUDGE

APPELLEE AFFIRMED

MEREDITH B. SWITZER, Judge

Brittany Pelayo and Wesley Sims are the biological parents of T.W.S. Brittany

appeals from the June 19, 2019 order that awarded custody of T.W.S. to Wesley and allowed

Wesley to move T.W.S. to Oklahoma. She raises nine points, most of which challenge the

circuit court’s findings regarding Wesley’s care and support of T.W.S., Wesley’s stability,

Brittany’s instability, T.W.S.’s best interest, and allowing Wesley to move T.W.S. to

Oklahoma. She further contends that the circuit court did not give due consideration to

the sibling relationship or to the attorney ad litem’s recommendation and that it did not

apply the correct statute in awarding back-due child support. Finally, she contends the

circuit court erred in denying her posttrial motions. We affirm.

I. Background

Brittany and Wesley never married, but they lived together until three months before

T.W.S. was born. Brittany left at that time because she found the living arrangements to
be “intolerable.” According to Brittany, she and Wesley had a DNA test performed when

T.W.S. was born, which established Wesley as the father. Wesley lives in Oklahoma;

Brittany lives in Arkansas.

On November 20, 2018, Wesley Sims filed a complaint for paternity and custody.

Brittany answered. By order entered on February 13, 2019, the circuit court appointed an

attorney ad litem for T.W.S. On March 27, Brittany filed a motion to relocate outside

Arkansas. She explained in her motion that she is married to a member of the armed forces

who is in the drill-instructor program and stationed at Paris, Island, South Carolina; that she

had researched schools and pediatricians in the area and found suitable options; and that it

would be financially beneficial to the family to relocate and reside in one household.

T.W.S. was seven years old at the time of the May 22 hearing on the motions.

Brittany explained that she has another son, B., who is about five years older than T.W.S.

She explained that she and her wife, Michelle Cox, began their relationship after she broke

up with Kieren Cragle (formerly L. Cragle) in October, and they were engaged on

November 10; B. and T.W.S. met Michelle around November 12 or 14; and she and

Michelle were married on December 26, 2018. She testified that prior to Michelle, she had

been in an almost two-year relationship with Kieren; that during that time, Kieren was in

the process of transitioning from male to female; that the relationship terminated on October

19 or 20, 2018, because Brittany asserted that Kieren was manipulative and controlling and

their fights had become physical—resulting in Kieren’s being arrested.

Brittany stated that she and a friend had gone to Florida in the aftermath of the

altercation with Kieren, and she ended her relationship with Kieren by telephone the second

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night she was there. She met Michelle while in Florida through mutual friends. She stated

that Kieren is “a good person, a good parent, helped [her] take care [of her sons], and loved

them” but that it was the way Kieren treated her that caused her to end the relationship.

Brittany explained that T.W.S. went to preschool in Charleston, Arkansas, attended

kindergarten at Euper Lane, and was currently in first grade at Westwood in the Greenwood

School District in Fort Smith. She said she moved the boys from Euper Lane because B.

was getting bullied, but they were both “doing great now.” She said she was planning and

preparing to move to South Carolina so they could be a family with Michelle. She explained

her work history, which consisted of three jobs and a period of being a stay-at-home mom

since T.W.S.’s birth. She acknowledged she had been convicted of shoplifting and

fraudulent use of a credit card when she was living with Wesley and couldn’t buy food. She

has a speeding ticket and she accidentally rear-ended somebody “a few years ago,” but “the

other citations have been dropped.”

Brittany acknowledged that she does not have any complaints about Wesley’s

parenting. She explained that T.W.S. sometimes chooses a dress and pink shoes to wear,

along with other choices, and that she buys him dolls, purses, and wallets if he asks. She

tries to encourage him to be himself and be strong, but she does not believe she has

influenced his choices. She explained that T.W.S. was five when he met Kieren and that

he had liked those things before meeting Kieren.

She testified she hoped to go back to school in South Carolina to be a licensed health

and wellness coach. She explained that there were many programs available to start a

business through the military, that she planned to stay home and help the boys’ transition

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through the move, and that she would work part time while they were at school and attend

her school in the evenings. She has no other family in South Carolina, and most of T.W.S.’s

family live in Oklahoma and Arkansas. She agreed that it is important for T.W.S. to be

close to Wesley’s family and explained that the South Carolina house has extra rooms for

guests. She said that she is open to all kinds of visitation if she is allowed to move and

“given custody.” She stated that Wesley had never tried to get visitation; that she

encouraged it every other weekend; that she has not tried to keep T.W.S. from Wesley;

that would not change with a move; that Wesley does not currently call T.W.S.; and that

she would not ordinarily object to Wesley’s request to take T.W.S. on vacation to Glacier

National Park in the coming summer, but for that summer she wanted T.W.S. to be able

to get adjusted to his new house and surroundings. She said she did not personally know

about South Carolina but had studied it.

Brittany explained that Michelle is a sergeant in the Marine Corps drill-instructor

school. She said that only two women have been picked for the position held by Michelle

and that her orders are to be there for three years. Brittany testified that Michelle is very

close to T.W.S. and B., that she calls every day and video chats with them, and that she is

very loving and nurturing.

Brittany testified about the relationship between B. and T.W.S.. She said that B. is

a hero to T.W.S.; T.W.S. wants to do everything like B.; they are so excited to be back

together after weekends with their dads; they play together all the time; they have sibling

arguments and T.W.S. sometimes annoys B. and B. can be bossy, but they are very close;

and it “would kill the boys” if they were separated.

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She said that for the first year of T.W.S.’s life, Wesley did not spend much time with

him because Wesley lived in Oklahoma. Wesley would come see T.W.S. every week or

two weeks, and she would also take T.W.S. to see Wesley’s dad. Wesley did not ask, and

she would not have allowed overnights that first year, but after that there were overnight

visits, and for “the last couple of years it’s been about every other weekend.” She explained

that Wesley had only once kept T.W.S. for more than fifteen days, and that was during last

year’s vacation trip. She said they were supposed to be gone only ten days; they were in

“the Redwoods” and a call from her upset T.W.S. when he heard her voice. She then

texted instead but Wesley would not respond for three to four days.

Brittany explained that after the physical altercation with Kieren, she took B. and

T.W.S. and went to a safe place. She then went to the doctor, the schools, and the police

station. Charges were filed against Kieren and a no-contact order and order of protection

were entered.

She testified that she tried twice to establish Wesley’s paternity through a child-

support case, but she did not have enough information; that Wesley would not share his

information with her to apply for child support, and she did not know his social security

number or his mailing address; that “a few years later, he started paying more regularly”;

that he was paying seventy-five dollars every two weeks; and that “it’s been regular the past

year to two years.” She explained that the misdemeanor shoplifting and credit-card

convictions happened before T.W.S. was born. She said that Wesley went to one preschool

program, but no gymnastics or kindergarten graduation; that he did not call between visits;

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that he came to three or four soccer games; and had never taken him to the doctor, the

dentist, or school.

If allowed to move, Brittany said the family would live in Beaufort, South Carolina,

near Paris Island. She explained that they had found a house and expected to close on it on

June 3. She has read everything about the elementary and middle schools in the area.

T.W.S. would go to Lady’s Island Elementary, an art-based elementary, in Beaufort County,

about twenty minutes from the new house. Brittany explained that T.W.S. loves to sing so

it is a good learning environment for him. She was able to access the school calendar and

highlighted the times T.W.S. would be out of school and able to visit Wesley. She said she

had researched extracurricular activities and churches, and Michelle found a church just four

minutes from the new house.

She said that she would notify Wesley when T.W.S. was sick or if they were at the

emergency room, and although she did not invite him to go, he could have come. She said

that she did not consult a psychologist when she and Kieren talked to T.W.S. about the

transitioning process but that their family therapist knew about it and “thought everything

they did was good.”

Wesley testified that he is T.W.S.’s father and that he wants T.W.S. to live with him

and his family in Oklahoma. He explained that although he had lived rent-free with his

father most of his life, he was building a house for him and T.W.S. to live in; that his

relationship with T.W.S. is “great”; and that he loves his son, who has always been a big

part of Wesley’s family. Wesley stated that he and T.W.S. canoe and ride four-wheelers,

that T.W.S. visits with his cousin, that he and T.W.S. camp and drive around, and that they

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go to national parks on vacation. He learned from T.W.S. that Kieren was taking drugs to

transition, and he was upset Brittany did not tell him. Wesley said he thinks Brittany forces

her choices and lifestyle on T.W.S., and T.W.S. wants to make her proud. He said T.W.S.

doesn’t wear dresses at Wesley’s house nor does he wear pink shoes or play with dolls.

Wesley thinks Brittany’s lifestyle is confusing to T.W.S., and he does not agree with her

having multiple partners during such short periods of time, no matter her sexual orientation.

He does not believe it was appropriate how fast she met, married, and planned to move

with Michelle.

Wesley’s father, two aunts, and brother live near him in Oklahoma, and T.W.S. is

close to his grandfather. T.W.S. also likes spending time at his aunts’ houses. Wesley’s new

house is only ten minutes from these family members. It is two minutes from Liberty

Elementary. Wesley has worked for the Fort Smith Fire Department for four and a half

years. He takes home $1200 every two weeks. He said he has been preparing a good home,

family, and school for T.W.S.. He explained that he is motivated to seek custody of T.W.S.

because he believes conditions with Brittany are getting worse. He said he is willing to give

Brittany as much visitation as possible, and he does not have a problem with her celebrating

Christmas and Easter with T.W.S. because his family does not celebrate those holidays. He

would also facilitate travel. Wesley described himself as a “good guy, good dad and [he

wants] the best for his son.” He said he had never been convicted of a crime, has a clean

driving record, works one day on and two days off, and every third weekend he has a full

weekend off. His family will watch T.W.S. while he works. His aunt teaches school and

can keep T.W.S. when school is closed.

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Wesley acknowledged that T.W.S. was seven years old, and this was the first time

he had been to court concerning T.W.S. He also acknowledged that Brittany had “mostly”

been a good mom. He was concerned, however, that she was moving people in and out

and had gotten in a fight in front of T.W.S. He said he does not care that Brittany is gay

or that she married a woman, but he did not like her explaining sex changes to T.W.S. at

such a young age. Wesley said he is not married; he stated he is in a relationship but does

not live with the woman. He said he does not communicate well with Brittany. He believes

Brittany takes T.W.S. to the doctor for “minor stuff,” and he thinks antibiotics harm the

immune system—so there have been disagreements about the use of prescribed medications

for T.W.S..

William Sims, Wesley’s father and T.W.S.’s grandfather, testified that Wesley is a

“great dad,” and he worries for T.W.S. if Wesley isn’t there. Carol Henson, Wesley’s aunt,

testified that Wesley is an excellent dad and that T.W.S. is a great kid. She said Wesley’s

new house will be a good place for T.W.S. to live, and she thought it would be a mistake

to take T.W.S. to South Carolina. She acknowledged that T.W.S. loves his mom. Judy

Pierce, Brittany’s grandmother, testified. She said Brittany is very close to T.W.S. and B.

and had always done the best she could to care for them. She said she thought it would

destroy B. to take T.W.S. from him and it would be hard on T.W.S., too. She said she had

met Michelle; she seemed like a very good person, and she got along with the boys.

The ad litem reported that both Wesley and Brittany are fine people and fit parents.

She said that T.W.S. loves his parents and extended family, that he is a happy child, and that

Wesley is a great dad. She was concerned that Wesley had waited six years before filing for

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paternity but that he tries to be a good dad and his schedule allows flexibility. She testified

that Brittany is a “really good mom,” and that it would be devastating to take T.W.S. from

his mom and brother. Her recommendation was that T.W.S. stay with Brittany and move

to South Carolina.

At the conclusion of the hearing, the circuit court ruled from the bench that Wesley

is the father, that he should be awarded custody, and that it would not be in T.W.S.’s best

interest to be moved. The court ordered standard visitation for Brittany, as the noncustodial

parent, and granted permission for T.W.S. to relocate to Oklahoma. Wesley was ordered

to pay Brittany $216 every two weeks for the period beginning the first Friday after

November 20, 2018 (when Wesley filed the paternity/custody petition), until Friday, May

25, 2019 (when the custody order was to take effect). Brittany was ordered to pay Wesley

seventy-two dollars a week beginning May 25.

II. Discussion

The custody award in this case is the initial custody decision regarding T.W.S.

because there was no earlier action involving him. See Rivers v. DeBoer, 2019 Ark. App.

132, 572 S.W.3d 887. Initial custody decisions do not require a change of circumstances.

Id. Instead, Arkansas Code Annotated section 9-10-113 (Repl. 2015) provides in pertinent

part:

(a) When a child is born to an unmarried woman, legal custody of that child shall
be in the woman giving birth to the child until the child reaches eighteen (18) years
of age unless a court of competent jurisdiction enters an order placing the child in
the custody of another party.

(b) A biological father, provided he has established paternity in a court of
competent jurisdiction, may petition the circuit court in the county where the child
resides for custody of the child.
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(c) The court may award custody to the biological father upon a showing that:
(1) He is a fit parent to raise the child;
(2) He has assumed his responsibilities toward the child by providing care,
supervision, protection, and financial support for the child; and
(3) It is in the best interest of the child to award custody to the biological
father.

The June 19, 2019 order awarding custody to Wesley provides:

3. After hearing the testimony of the parties and witnesses the Court finds
that the Plaintiff has established a more stable environment for the minor child as
evidenced by him living in the same location and having the same job for an extended
period of time. The Court finds that the Defendant mother has exhibited a pattern
of instability including multiple moves over the past several years. Further, the
Defendant ended a relationship in October of 2018, immediately beginning a new
relationship in October of 2018 which led to the Defendant’s engagement on
November 10, 2018. The Defendant introduced her new partner to the minor
children on November 12, 2018, and had her new fiancé stay in the home for a
period of time in November of 2018. The Defendant then married her new partner
in December and subsequently filed a petition in this Court asking to remove the
parties’ minor child to South Carolina where her partner is stationed.

4. The Court finds that most of the child’s extended family lives in the
Western Arkansas/Eastern Oklahoma River Valley.

5. The Court finds that it is in the best interest of the minor child that the
Plaintiff be awarded custody of the minor child with the Defendant to receive
visitation pursuant to this Court’s Standard Order Regarding Child Visitation and
Related Matters.

As mentioned previously, the majority of Brittany’s nine points challenge the circuit

court’s findings supporting its award of custody to Wesley. She asserts error in the circuit

court’s findings regarding Wesley’s care and support of T.W.S., Wesley’s stability, Brittany’s

instability, T.W.S.’s best interest, and allowing Wesley to move T.W.S. to Oklahoma. For

ease of discussion, these points will be addressed together.

In reviewing child-custody cases, we consider the evidence de novo but will not

reverse a circuit court’s findings unless they are clearly erroneous or clearly against the
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preponderance of the evidence. Vest v. Vest, 2017 Ark. App. 530, 529 S.W.3d 703. A

finding is clearly erroneous when, although there is evidence to support it, the reviewing

court is left with the definite and firm conviction that a mistake has been made. Id. We

recognize and give special deference to the superior position of a circuit court to evaluate

the witnesses, their testimony, and the child’s best interest. Id. There are no cases in which

the superior position, ability, and opportunity of the circuit court to observe the parties

carries a greater weight than those involving children. Id.

Brittany first argues that the evidence does not support the statutory requisites of

section 9-10-113(c), particularly subsection (c)(2). We disagree. While Wesley has not

been a model of parental responsibility, he did eventually provide some financial support,

care, supervision, and protection for T.W.S. on a regular basis. For at least two years

preceding the hearing, he gave Brittany seventy-five dollars every other week; he had

visitation with Wesley every other weekend; and the evidence supports the conclusion that

he provides appropriate care, supervision, and protection for T.W.S. when T.W.S. is in his

care. In addition, while the circuit court did not make a specific finding of Wesley’s fitness,

we can assume that it found Wesley to be fit because it awarded custody to Wesley. In the

absence of a showing to the contrary, we presume that the circuit court acted properly and

made such findings of fact as were necessary to support its decision. Chekuri v. Nekkalapudi,

2020 Ark. 74, at 13–14, 593 S.W.3d 467, 475–76. Moreover, the evidence before the

circuit court supports a fitness finding. We are not left with a definite and firm conviction

that the circuit court made a mistake in concluding subsections (c)(1) and (2) were satisfied.

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The remaining challenges fall generally within subsection (c)(3)’s best-interest

requirement, and we find no clear error concerning them either. The evidence shows that

there have been several significant changes in Brittany’s life in a short period of time, while

Wesley’s job and living situation have been more consistent. The circuit court weighed the

evidence and concluded that Wesley had provided a more stable environment for T.W.S.

Weighing the evidence as the circuit court did, we find no clear error in the circuit court’s

determination that Wesley’s life at this point is more stable. He has had the same job as a

firefighter for several years. He has lived consistently in his father’s house, where there is a

dedicated bedroom for T.W.S. and where Wesley lived at the time of the hearing. Wesley

was building his own house in the same vicinity, and it was almost completed. Wesley lives

in the same overall vicinity as many members of his own family and within a relatively short

distance from Brittany’s extended family. There is also a good school for T.W.S. nearby.

Brittany argues that the circuit court did not give due consideration to the attorney

ad litem’s recommendation. We find no basis for reversal in her argument because a circuit

court is not bound to follow an ad litem’s recommendation. Williams v. Williams, 2019

Ark. App. 186, 575 S.W.3d 156. Moreover, as mentioned previously, there are no cases in

which the superior position, ability, and opportunity of the circuit court to observe the

parties carries a greater weight than those involving children. Vest, supra.

Brittany next argues that the circuit court did not apply the correct statute in

awarding and calculating back-due child support. We cannot address this issue because it is

being raised for the first time on appeal. Our law is well settled that issues raised for the first

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time on appeal, even constitutional ones, will not be considered. Tipton v. Aaron, 87 Ark.

App. 1, 185 S.W.3d 142 (2004).

Finally, Brittany contends that the circuit court erred in not granting her posttrial

motion in which she moved for judgment notwithstanding the verdict; to amend the court’s

findings of fact or to make additional findings; or, in the alternative, for new trial. Although

she lists several posttrial requests in the caption for this point, the focus of her actual

argument is limited to Rule 59(a)(7) of the Arkansas Rules of Civil Procedure, which

provides that

[a] new trial may be granted to all or any of the parties and on all or part of the claim
on the application of the party aggrieved, for any of the following grounds materially
affecting the substantial rights of such party: . . . (7) newly discovered evidence
material for the party applying, which he could not, with reasonable diligence, have
discovered and produced at the trial.

Brittany contends that the newly discovered information she wants to present in a new trial

would be presented by T.W.S.’s therapist and involves his changed behavior, most of which

has occurred since custody was awarded to Wesley. This behavior includes “meltdowns,

confusion, baby talk, worrying and crying.” Newly discovered evidence is one of the least

favored grounds to justify a new trial. Piercy v. Wal-Mart Stores, Inc., 311 Ark. 424, 844

S.W.2d 337 (1993). The decision to grant or deny a motion for new trial based on newly

discovered evidence lies within the circuit court’s sound discretion. Id. We limit our review

of this point to the argument actually developed on appeal, and all other arguments

associated with this point have been abandoned.

In seeking a new trial on this basis, a party must demonstrate that (1) he or she could

not with reasonable diligence have discovered and produced the evidence at the time of

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trial, (2) the evidence is not merely impeaching or cumulative, and (3) the additional

testimony would probably have changed the result of the trial. Piercy, supra. To the extent

any of T.W.S.’s behaviors existed at the time of trial, reasonable diligence would have

resulted in its discovery, and the therapist could have testified at trial. With respect to any

behaviors that arose after custody was awarded to Wesley—which is the major thrust of her

argument—a critical problem with Brittany’s argument is that those behaviors do not

constitute newly discovered evidence. The behaviors may be newly developed in that they

did not exist at the time of the original custody hearing. They may reflect a change of

circumstances from those that existed at the time of the hearing, but evidence of these

behaviors does not constitute newly discovered evidence that would support a new trial.

We find no abuse of discretion in the circuit court’s denial of Brittany’s motion for new

trial.

Affirmed.

GLADWIN and MURPHY, JJ., agree.

Wemar Law Office, by: DeeAnna Weimar, for appellant.

Walters, Gaston, Allison & Parker, by: Derick Allison, for appellee.

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