Wyatt v. Dent , 2014 Ark. App. 343 ( 2014 )

Cite as 2014 Ark. App. 343
ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-14-21
Opinion Delivered May 28, 2014
APPEAL FROM THE PULASKI
BRITNEY WYATT COUNTY CIRCUIT COURT,
APPELLANT FOURTEENTH DIVISION
[NO. DR-2008-2258]
V.
HONORABLE VANN SMITH, JUDGE
BRANDON DENT
APPELLEE AFFIRMED
RHONDA K. WOOD, Judge
Britney Wyatt appeals the decision of the circuit court denying her motion to
change custody, granting appellee Brandon Dent’s motion to relocate, and modifying her
visitation with the parties’ minor child. Wyatt asserts that the court erred in not finding a
material change of circumstance existed warranting a change of custody. She also asserts
that the court erred in not making a complete best-interest finding by fully considering all
of the Hollandsworth factors in the decision to allow Dent to relocate the parties’ minor
child out of state. We find no error and affirm.
Dent, the custodial parent, filed a motion to modify visitation as well as an
amended motion seeking leave of the court to relocate with the parties’ minor child as a
result of his new wife obtaining employment out of state. Wyatt filed a competing
motion to change custody. Following a hearing, the circuit court ruled in favor of Dent.
Cite as 2014 Ark. App. 343
Wyatt contends the court erred in denying her motion to change custody. We
review child-custody cases de novo, and 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 court’s findings are clearly erroneous turns largely on
the credibility of the witnesses, we give special deference to the superior position of the
circuit court 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).
We have repeatedly held that the party seeking modification must first demonstrate
that a material change in circumstances affecting the best interest of the child has occurred.
Byrd v. Vanderpool, 104 Ark. App. 239, 290 S.W.3d 610 (2009). Wyatt, by her own
admission, has experienced a tumultuous life and has struggled with providing a stable
environment for the parties’ minor child. At the hearing, she cited recent improvements
in her situation that she felt warranted a change of custody back to her. She moved back
to Arkansas to be closer to her son, she was active in his education and activities, and she
was in more stable relationships with both a romantic partner and her mother.
Her argument on appeal is that these changes in her life coupled with Dent’s
relocation amount to a material change in circumstances warranting a change of custody.
We do not agree and affirm the circuit court. Our supreme court has been clear that
relocation is not a change in circumstances warranting a change in child custody nor are
circumstances created by the party seeking the modification. See Hollandsworth v.
Knyzewski, 353 Ark. 470, 109 S.W.3d 653 (2003); Brown v. Brown, 2012 Ark. 89, 387
S.W.3d 159.
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Cite as 2014 Ark. App. 343
Next, Wyatt contends that Dent failed to demonstrate, and the circuit court failed
to appropriately find, that it was in the best interest of the child for Dent to relocate to
Virginia. Our supreme court has set forth a presumption in favor of relocation for a
custodial parent with primary custody, and the noncustodial parent bears the burden of
rebutting this presumption. Hollandsworth v. Knyzewski, supra. In Hollandsworth, the court
explained:
The polestar in making a relocation determination is the best interest of the
child, and the court should take into consideration the following matters: (1) the
reason for the relocation; (2) the educational, health, and leisure opportunities
available in the location in which the custodial parent and children will relocate; (3)
visitation and communication schedule for the noncustodial parent; (4) the effect of
the move on the extended family relationships in the location in which the
custodial parent and children will relocate, as well as Arkansas; and, (5) preference
of the child, including the age, maturity, and the reasons given by the child as to
his or her preference.
Id. at 485, 109 S.W.3d at 663–64.
On appeal, Wyatt incorrectly attempts to shift the burden to Dent to prove that it
is in the child’s best interest to relocate. She also claims that the circuit court erred by not
analyzing each factor set forth in Hollandsworth. However, the circuit court stated in its
order that it considered the best interest of the parties’ minor child and the factors set forth
in Hollandsworth, and that based on this, Wyatt failed to rebut the presumption in favor of
relocation. If Wyatt desired an explanation of how the court analyzed each factor, she
should have requested the court to make specific findings of fact. The court applied the
appropriate best-interest standard, considered the factors, and made findings that, based on
the record, were not clearly erroneous. We affirm.
Affirmed.
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Cite as 2014 Ark. App. 343
PITTMAN and HIXSON, JJ., agree.
Mark Alan Jesse, for appellant.
Ballard & Ballard, P.A., by: Andrew D. Ballard, for appellee.
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