Brand v. Mourot
Annotate this Case
Download PDF
Cite as 2010 Ark. App. 701
ARKANSAS COURT OF APPEALS
DIVISION II
No. CA 10-42
Opinion Delivered October 20, 2010
PAMELA BRAND
APPELLANT
APPEAL FROM THE PERRY
COUNTY CIRCUIT COURT
[NO. DR-2002-96]
V.
GREGORY MOUROT
APPELLEE
HONORABLE ELLEN B.
BRANTLEY, JUDGE
AFFIRMED
WAYMOND M. BROWN, Judge
This is a contentious battle over custody of now eight-year-old C.M., the parties’ son. The
circuit court ordered custody to be changed from C.M.’s mother, Pamela Brand, to his father,
Gregory Mourot. Pamela challenges this ruling, arguing that Greg failed to prove a material
change in circumstances sufficient to justify a change in custody. We hold that the circuit court
did not err in awarding Greg custody in light of evidence showing that C.M. missed an excessive
number of school days and that Pamela failed to comply with the visitation order on several
occasions. Thus, we affirm.
Background
C.M. was born in July 2002. In December 2003, Greg established paternity and was
awarded visitation. And the long history of litigation began. Greg filed his first motion for
contempt in October 2004. The court later held a brief hearing, where Pamela admitted that
Cite as 2010 Ark. App. 701
Greg had not been able to visit on a regular basis. Greg asked the court not to punish her at that
time, and the court entered an agreed order in January 2005 reflecting a modification to the
visitation schedule. Two months later, Greg asked the court to hold Pamela in contempt again,
citing lack of visitation. Pamela responded by filing a counter-petition for contempt, alleging
Greg’s failure to pick up and return C.M. timely and failure to pay child support. The court
ordered Greg to pay child support, but the other matters were continued.
Greg filed another motion for contempt in July 2006. This time, the court found Pamela
in contempt and ordered her to pay Greg’s attorney’s fee. He filed yet another one in May 2007.
The court found Pamela in contempt again and ordered her to serve a brief amount of time in
county jail. Greg filed another motion in October 2007, but that one was dismissed for lack of
service. Greg filed his most recent motion for contempt in July 2008. He followed that up with
a motion to change custody in September 2008 (the subject of this appeal), and the court held
a hearing on the motion to change custody in December 2009.
First to testify was Gwen Jones, who keeps records at C.M.’s elementary school. Her
records showed that C.M. missed sixty-six days of school the previous year. He was dropped
from school for missing ten consecutive days in a row. The records show that the absences were
excused and that the school has doctor’s notes on file, but Jones testified that the school’s policy
was to consider an absence excused as long as a parent or guardian called to let the school know
of the absence. Also entered into evidence was a medical report showing that C.M. is allergic to
pollen, dust mites, and pet dander.
2
Cite as 2010 Ark. App. 701
Tammy Mourot, Greg’s wife of two years, testified that she and Greg lived in a fourbedroom home with her three children (one in college, one just out of high school, and one
teenager). She stated that the family goes to church “every time the doors are open.” She recalled
occasions where she went to Pamela’s home to pick up C.M. According to her testimony,
Pamela would allow him to go with her in the beginning, but there were occasions where she
would not answer the door for twenty to thirty minutes. Pamela would also open the door, ask
for a minute, then close the door, call Greg, and tell him, “she’s not taking my son.”
With the help of a calendar created by Tammy, Greg told the court that he was denied
visitation on several different dates. He recalled a phone call from Pamela in April 2009, where
she told him that Tammy and her children were not part of the Mourot family and that none of
them were to ever watch C.M. again. He stated that he had only seen C.M. once since then. On
cross-examination, Greg testified that Tuesday night visitation went well, but weekends did not.
Pamela acknowledged that C.M. missed sixty-six days of school the previous year, but
she attributed his sickness to visits with Greg. She stated that C.M. would come home smelling
like a dog, even though Greg knows that he is highly allergic to them. She stated that she talked
to Greg about C.M.’s medications, but that Greg would not give C.M. any medicine and claimed
that he knew better than the doctor. She also testified that Tammy had called and apologized to
her about problems giving C.M. his medication.
Pamela acknowledged that Greg had not seen C.M. since May of that year, but she
claimed that it was because he would not pick him up. She refused to take C.M. to Greg, as the
3
Cite as 2010 Ark. App. 701
order instructed the person exercising visitation to pick him up. She also claimed personal
knowledge that Tammy and Greg left C.M. alone with Tammy’s then eleven-year-old daughter
(an allegation Tammy denied).
After hearing the testimony, the court stated that it was awarding Greg custody of C.M.
It noted the past citations for contempt for failure to allow visitation, and it thought that Greg
could provide a good home for the child. The court particularly commented on the citations for
contempt, stating that Pamela was making a mockery of the court’s order. It also did not believe
that C.M. had missed sixty-six days of school simply because he was sick from changing houses.
The court entered an order reflecting its ruling, and this appeal followed.
Analysis
Pamela argues that Greg failed to prove a material change in circumstances to justify a
change in custody. She contends that the excessive number of school absences was not a
material change in circumstances given that the absences were excused and that many of them
were accompanied by doctor’s notes. She also contends that the denial of visitation did not
justify the change in custody, as Greg failed to prove that she denied him visitation. She further
asserts that the circuit court wrongfully punished her by awarding custody to Greg and that it
failed to find that a change of custody was in C.M.’s best interest.
We review matters that traditionally sound in equity, such as domestic-relations
proceedings, de novo on the record with respect to fact questions and legal questions.1 Findings
1
Hudson v. Kyle, 365 Ark. 341, 229 S.W.3d 890 (2006).
4
Cite as 2010 Ark. App. 701
of fact will not be reversed unless they are clearly erroneous.2 A finding of fact by the circuit
court is clearly erroneous when, despite supporting evidence in the record, we are left with a
definite and firm conviction that a mistake has been committed.3 Further, we give great weight
to the circuit court’s personal observations; this is so because there are no cases in which the
superior position, ability, and opportunity of the judge to observe the parties carry a greater
weight than those involving the custody of minor children.4
The primary consideration in child-custody cases is the welfare and best interest of the
child; all other considerations are secondary.5 A judicial award of custody should not be modified
unless it is shown that there are changed conditions that demonstrate that a modification of the
decree is in the best interest of the child, or when there is a showing of facts affecting the best
interest of the child that were either not presented to the circuit court or not known by the
circuit court at the time the original custody order was entered.6
Regarding the excessive absences, Pamela relies on our decision in Davis v. Sheriff,7 which
also involved a child with excessive absences. She quotes from our opinion:
Excessive absences, tardiness, and the lack of academic progress are matters that may be
2
Id.
3
Id.
4
Id.
5
Alphin v. Alphin, 364 Ark. 332, 219 S.W.3d 160 (2005).
6
Id.
7
2009 Ark. App. 347, 308 S.W.3d 169.
5
Cite as 2010 Ark. App. 701
weighed by the trial court in determining the best interest of the child. However, given
the evidence in this case, we agree with appellant that none of the concerns specifically
listed by the trial court in its comments from the bench, either alone or in combination,
constituted a material change sufficient to warrant a modification of custody.8
Pamela ignores two essential points from that opinion. First, she would have us
completely disregard C.M.’s sixty-six absences despite our explicit statement that they should be
considered in determining the best interest of the child. True, when considering absences, a
court should consider the reasons for those absences, but the circuit court did not err in
questioning whether all sixty-six absences were justified. Second, Pamela fails to consider the
entire history both in Davis and here. In Davis, we affirmed the decision to change custody in
light of another factor (the stepfather’s conviction for child endangerment against his biological
son). Here, we have a history of one parent denying visitation to the other parent. If anything,
Davis supports the circuit court’s decision to award Greg custody of C.M.
Next, Pamela focuses on the proof that she denied visitation. In her argument, she makes
some valid points. A violation of court orders, by itself, does not compel a change in custody.9
And custody is not to be changed merely to reward or punish a parent.10 Pamela’s multiple
failures to comply with the court’s orders, however, justify the court’s decision. Greg’s first
motion for contempt was dismissed, but only because Greg agreed not to pursue it as long as
Pamela allowed visitation. She was later found in contempt twice. A single failure to allow
8
Id. at 7, 308 S.W.3d at 172–73.
9
Carver v. May, 81 Ark. App. 292, 101 S.W.3d 256 (2003).
10
Id.
6
Cite as 2010 Ark. App. 701
visitation does not justify changing custody, but multiple failures do.11 And even though Pamela
points to inconsistencies in the record to support a finding to the contrary, our standard of
review requires us to defer to the circuit court’s finding that Pamela did indeed thwart Greg’s
efforts to exercise visitation.12
Pamela addresses each point of contention separately and argues how each individual
finding does not support the circuit court’s decision. But we do not examine each finding in
isolation; certain factors, when examined together, may support the circuit court’s decision
where each factor, if examined in isolation, would not.13 To that end, we hold that the factors
cited by the circuit court—specifically the excessive absences and Pamela’s history of thwarting
visitation efforts—were sufficient proof of a material change in circumstances. Based on that
same proof, combined with evidence showing that Greg can provide C.M. a good home, we
hold that the circuit court properly awarded Greg custody of C.M. Accordingly, we affirm.
Affirmed.
A BRAMSON and H ENRY, JJ., agree.
11
See Brewer v. Smith, 2010 Ark. App. 134, ___ S.W.3d ___ (affirming a change in custody
based on the appellant’s repeated failure to follow visitation orders and repeated, unfounded
allegations of abuse); Sharp v. Keeler, 99 Ark. App. 42, 256 S.W.3d 528 (2007) (holding that the
mother’s repeated refusal to allow the father visitation when she decided visitation was not in
the child’s best interest, and her refusal to follow the circuit court’s directives, constituted a
record of continued alienation that was a material change of circumstances).
12
See Hudson, supra.
13
Davis, supra; Hollinger v. Hollinger, 65 Ark. App. 110, 986 S.W.2d 105 (1999).
7
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
