Sampley v. Sampley , 2014 Ark. App. 134 ( 2014 )

Cite as 2014 Ark. App. 134
ARKANSAS COURT OF APPEALS
DIVISION IV
No.CV-13-660
Opinion Delivered February 19, 2014
GINGER LYNN SAMPLEY, now APPEAL FROM THE CRAWFORD
BLACKWELL COUNTY CIRCUIT COURT
[NO. DR-2002-291]
APPELLANT
V. HONORABLE MICHAEL MEDLOCK,
JUDGE
JAMIE RAY SAMPLEY
APPELLEE AFFIRMED
RHONDA K. WOOD, Judge
Appellant Ginger Sampley Blackwell and appellee Jamie Sampley divorced. Since
2008, Jamie has had custody of the parties’ now twelve-year-old daughter. Ginger
challenges the circuit court’s April 13, 2013 order denying her motion to modify visitation
and motion to modify custody and support. We affirm the circuit court.
In 2010, Ginger filed several motions seeking, among other things, to modify
visitation, custody, and child support. On July 10, 2012, the circuit court entered an
agreed order that left custody with Jamie and modified Ginger’s visitation schedule. The
following month, Ginger filed another motion to modify child custody, citing
circumstances occurring before the July 10, 2012 order that she alleged amounted to a
material change in circumstance warranting a change in custody to her.
Cite as 2014 Ark. App. 134
A hearing was held on Ginger’s motion on April 1, 2013. At the beginning of the
hearing, Jamie’s attorney made an oral motion to restrict testimony to evidence that had
occurred since the July 2012 order. Ginger did not object, and the circuit court granted
the motion. At the conclusion of the hearing, the circuit court found Ginger failed to
present proof of a material change of circumstances. The court also stated that the parties
should have litigated the evidence presented at the hearing back in July 2012 when
instead, the parties indicated to the court they reached an agreement which resulted in the
agreed order. The court denied Ginger’s motion for change of custody and awarded
attorney’s fees to Jamie.
We review child-custody cases de novo, but we will not reverse a circuit court’s
findings unless they are clearly erroneous. Taylor v. Taylor, 353 Ark. 69, 110 S.W.3d 731
(2003). Because the question of whether the circuit court’s findings are clearly erroneous
turns largely on the credibility of the witnesses, we give special deference to the superior
position of the trial judge to evaluate the witnesses, their testimony, and the child’s best
interest. Sharp v. Keeler, 99 Ark. App. 42, 256 S.W.3d 528 (2007).
First, Ginger contends on appeal that the circuit court erred by failing to find a
material change in circumstances. The record reflects that the judge heard testimony from
both parties as well as their witnesses. Ginger’s alleged change of circumstances included a
purported strained relationship between the minor child and her step-mother and the fact
that the minor child, age twelve, was sometimes left at home alone after school for short
periods of time. Our court has repeatedly held that in order to make changes to custody or
visitation, the party seeking modification must first demonstrate that a material change in
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circumstances affecting the best interest of the child has occurred. Byrd v. Vanderpool, 104
Ark. App. 239, 290 S.W.3d 610 (2009). Following evidence on these issues, the court
found that a material change had not occurred. The court admittedly was frustrated that
the appellant filed her motion only one month after entry of the agreed order. Based on
the court being in the best position to assess credibility and weigh the evidence, we hold
that the court’s finding was not clearly erroneous.
Next, Ginger contends that the circuit court erroneously failed to consider relevant
evidence supporting a modification in custody. The court limited testimony to incidents
occurring after the previous hearing and agreed order. In its ruling from the bench, the
circuit court stated that all of Ginger’s allegations against Jamie could have been litigated at
the July 2012 hearing and that her proof did not rise to the level of a material change in
circumstance. Our supreme court has held that when circumstances affecting the best
interests of the child were not presented to the trial judge at the time the original custody
order was entered, they can be considered in determining whether a material change of
circumstances has occurred. Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d 520 (1999).
This is not the case, however, when the parties were aware of the circumstances and
entered into an agreement that is approved by the court. Orantes v. Orantes, 2011 Ark.
159, 381 S.W.3d 758. Here, as evidenced by her pleadings, Ginger knew of the incidents
prior to the July 2012 agreed order. It thus was not an error for the court to exclude this
evidence.
Finally, the court awarded attorney’s fees to Jamie following the May 2013 hearing,
and Ginger contends on appeal that if we reverse the circuit court’s other ruling, we
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should also reverse the award of attorney’s fees to Jamie. Because we are affirming the
circuit court on all other points, we also affirm the award of fees.
Affirmed.
HARRISON and WHITEAKER, JJ., agree.
Milligan Law Offices, by: Phillip J. Milligan, for appellant.
Shannon Foster, for appellee.
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