Fudge v. Dorman , 2017 Ark. App. LEXIS 178 ( 2017 )

Cite as 2017 Ark. App. 181
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-16-651
Opinion Delivered: March 15, 2017
JEREMY SHANE FUDGE
APPEAL FROM THE UNION
APPELLANT COUNTY CIRCUIT COURT
[NO. 70DR-12-330]
V. HONORABLE DAVID F. GUTHRIE,
JUDGE
WHITTNEY LYNELL DORMAN
APPELLEE REVERSED AND REMANDED
MIKE MURPHY, Judge
Appellant Jeremy Shane Fudge appeals from the order of the Union County Circuit
Court changing custody of his three minor children to the children’s mother, appellee
Whittney Lynell Dorman. Fudge argues that the circuit court erred in finding changed
circumstances and that a transfer of custody to Dorman was not in the children’s best interest.
We agree that there was no material change in circumstances sufficient to warrant
modification of custody and therefore reverse and remand.
The parties divorced in 2010, and Dorman initially had custody of the children until
2011 when she voluntarily relinquished custody to Fudge. In 2013, Dorman petitioned the
court for custody of the three children, and on December 3, 2013, the circuit court entered
an agreed order whereby Fudge continued to have primary physical custody. On January 6,
2016, Dorman filed a motion to change custody on both a temporary and a final basis citing
a material change of circumstances. For her emergency motion, she alleged that the children
Cite as 2017 Ark. App. 181
were in jeopardy while in the care and custody of Fudge because of a drunken incident that
occurred between Fudge and his current wife at the Liberty Bowl in Memphis, Tennessee,
a few days before. The court granted the ex parte motion but denied the temporary change
of custody two days later, holding that the events that occurred at the Liberty Bowl were
insufficient to cause a change in the custody arrangement because “[t]he differences between
[Fudge] and his [current wife] which caused [Dorman] to file her request for ex-parte
emergency custody did not occur in the presence of the children.” While the circuit court
ruled that there was no emergency and denied that part of the motion, on April 12, 2016,
the circuit court entered an order addressing the remaining part of the motion and changed
custody to Dorman. Fudge filed a timely notice of appeal. 1
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
preponderance of the evidence. Riddick v. Harris, 2016 Ark. App. 426, at 4, 501 S.W.3d
859, 864. Deference to the circuit court is even greater in cases involving child custody, as
a heavier burden is placed on the circuit court to utilize to the fullest extent its powers of
perception in evaluating the witnesses, their testimony, and the best interest of the children.
Alphin v. Alphin, 364 Ark. 332, 336, 219 S.W.3d 160, 162 (2005). If the circuit court fails
to make findings of fact about a change in circumstances, this court, under its de novo
review, may nonetheless conclude that there was sufficient evidence from which the circuit
court could have found a change in circumstances. Williams v. Geren, 2015 Ark. App. 197,
at 10, 458 S.W.3d 759, 766.
1
This is a one-brief case; Mrs. Dorman has not filed a brief.
2
Cite as 2017 Ark. App. 181
Arkansas law is well settled that the primary consideration in child-custody cases is
the welfare and best interest of the children; all other considerations are secondary. Rice v.
Rice, 2016 Ark. App. 575, at 4–5, __ S.W.3d __, __. A judicial award of custody will not
be modified unless it is shown that there are changed conditions that demonstrate that a
modification of the decree will be in the best interest of the child. Id. Generally, courts
impose more stringent standards for modifications in custody than they do for initial
determinations of custody. Id. The reasons for requiring more stringent standards for
modifications than for initial custody determinations are to promote stability and continuity
in the life of the child and to discourage repeated litigation of the same issues. Id. In order
to change custody, the circuit court must first determine that a material change in
circumstances has occurred since the last order of custody; the party seeking modification
has the burden of showing a material change in circumstances. Id. If that threshold
requirement is met, the circuit court must then determine who should have custody, with
the sole consideration being the best interest of the children. Williams, 2015 Ark. App. 197,
at 10, 458 S.W.3d at 766. Determining whether there has been a change of circumstances
requires a full consideration of the circumstances that existed when the last custody order
was entered in comparison to the circumstances at the time the change of custody is
considered. Id.
In its order dated April 12, 2016, the circuit court stated,
In making its decision, this Court is not suggesting that either party is not capable or
competent to take care of the children, but the Court finds that in 2013 custody
changed to Jeremy Shane Fudge as a result of Whittney Lynnell Fudge (now
Dorman) doing what she thought was in the best interest of the children given her
circumstances in life at that time. Since that occasion, the circumstances that
motivated Whittney Lynnell Fudge (now Dorman) to place the parties’ minor
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Cite as 2017 Ark. App. 181
children with Jeremy Shane Fudge have changed for the positive. She is now capable
of taking care of the children, she has settled her affairs that caused her to ask Jeremy
Shane Fudge to take the children in 2013. 2
The circuit court also explained from the bench,
[This decision] is not clearly an adverse reflection on [Fudge] and his care of the
children during the interim; it appears that both parties are capable, competent and
loving parent [sic] and seek only the best for their children. The concern is that only
one can have custody and [Dorman] gave up custody years back for the best interest
of the children and it is only appropriate that she [sic] now that she has settled her
affairs, financial affairs, work affairs, emotional affairs and any family affairs and is now
more capable of taking care of the children in question.
Notably, the circuit court failed to address the full consideration of circumstances that
existed when the last custody order was entered compared to the present situation.
Furthermore, the circuit court failed to make specific findings that a material change in
circumstances had occurred since that order. Arkansas caselaw is well settled that a change
of the circumstances of the noncustodial parent is not alone sufficient to justify a change of
custody. See Wiliams, supra; Middleton v. Middleton, 83 Ark. App. 7, 15, 113 S.W.3d 625,
629 (2003). The circuit court made a general finding that a change in circumstances had
occurred, and then it failed to make specific findings regarding the best interest of the
children. See Williams, supra (holding that we defer to a circuit court’s credibility
determinations, but those determinations must relate to testimony regarding material facts
in order to support a finding of changed circumstances).
Moreover, the record does not support the circuit court’s findings that Dorman has
her affairs in order. Testimony revealed that Dorman owes $10,000 in back child support,
2
Custody changed to Fudge in 2011, not 2013; this reference appears to be a
scrivener’s error.
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Cite as 2017 Ark. App. 181
she is behind on her car payment, and she has been out of a job for two months. Per
testimony, she does have a job lined up, but it will require her to work overnight, leaving
Dorman’s husband of a year and a half—who has spent minimal time with the children and
is away from home for work three to four months at a time—to be the primary caregiver
while she is gone. Dorman’s aunt, who has multiple felony convictions related to
methamphetamine, agreed to be a secondary caregiver if Dorman’s husband is unavailable.
The circuit court is putting the interests of Dorman before the best interest of the children.
Overall, the circuit court’s findings did not, on their own, constitute a material
change in circumstances sufficient to warrant modification. Based on our holding, any
inquiry into the best interest of the children is not necessary. Therefore, we reverse and
remand for further proceedings consistent with our opinion.
Reversed and Remanded.
GLADWIN and HARRISON, JJ., agree.
Stone & Sawyer, PLLC, by: R. Jeffrey Sawyer; and McDonald Law Firm, by: Gary
McDonald, for appellant.
No response.
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