Keith v. Keith

Cite as 2013 Ark. App. 700
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-13-155
Opinion Delivered December 4, 2013
MICHELE McCORMICK KEITH
APPELLANT APPEAL FROM THE OUACHITA
COUNTY CIRCUIT COURT
[NO. DR-2010-249-2]
V.
HONORABLE MICHAEL R.
LANDERS, JUDGE
STEVEN CONRAD KEITH
APPELLEE AFFIRMED
ROBERT J. GLADWIN, Chief Judge
Appellant Michele Keith’s sole point on appeal is that the Ouachita County Circuit
Court erred by changing custody of her children to appellee Steven Keith. We affirm.
I. Procedural and Factual History
The parties were divorced by decree filed July 12, 2011, and appellant was awarded
custody of their four children, M.K. (age 10), R.K. (age 8), G.K. (age 6), and Mc.K. (age 3).
Because appellee lived in Little Rock, Arkansas, and appellant and the children lived in
Camden, Arkansas, the parties would meet halfway between their houses for visitation
exchange on alternating weekends.
A contempt order was filed on October 7, 2011, finding appellant in contempt
because she had, on two separate occasions, willfully and intentionally refused to permit
appellee visitation with the children. The order states in paragraph 2:
Cite as 2013 Ark. App. 700
The [appellant] is forewarned and advised that to willfully and intentionally refuse to
allow Court ordered visitation with the children constitutes conduct that this Court
could consider as a basis for a change of custody.
On March 29, 2012, appellee filed a motion for contempt and for change of custody,
alleging that appellant and the four children had moved to the Houston, Texas area where
appellant had been offered part-time work in a family-related business. He claimed that he
had not been informed of the move and no adjustment had been arranged for his visitation
schedule. He alleged that the move was an intentional denial of his visitation. He further
alleged that he did not have appellant’s current telephone number. He asked that appellant
be held in contempt and claimed that her alleged reason for relocating—finding
employment—was a pretense for impeding and interfering with his visitation. He argued
that her move would adversely affect his relationship with the children and the children’s
relationship with their grandparents and family members in Camden and Little Rock.
Finally, he asserted that it was not in the children’s best interest to be moved from their
school in the middle of the semester. Based on these claims, appellee asked for custody of
the children.
At the hearing on appellee’s contempt motion held on June 27, 2012, appellant
testified that she moved with the children the weekend of March 16, 2012. She admitted
that she did not telephone appellee to notify him of their move. She claimed that her
attorney sent a letter to appellee, and that appellee knew that she was moving because he was
texting her daughter while they were en route to Texas. She explained that she did not
notify him sooner because she wanted to avoid a fight.
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In an order filed August 23, 2012, the circuit court held as follows:
6. . . . The Court finds that the [appellant] failed to give reasonable notice to the
[appellee] of her move to Texas with the children. It is obvious to the Court
that she did this in order to prevent [appellee] from taking any legal action to
prevent the move. However, there is no order of this Court requiring notice
to be given.
The circuit court did not find appellant in contempt regarding appellee’s missed visitation on
March 24–25, 2012, nor did the court find that she willfully denied appellee access to a
telephone number where she could be reached.
The circuit court held a separate hearing on appellee’s motion for change of custody
on August 27, 2012. Testimony was taken from Olivette Price, appellant’s mother; Hannah
O’Dell, appellant’s half sister; Jackie Bowen, appellee’s mother; T.K. (age 14), appellee’s son
by a prior marriage and who lives with appellee; appellee; appellant; Marie McCormick,
appellant’s stepmother; Clint Price, appellant’s stepbrother; M.K.; and R.K. The circuit
court’s letter opinion described the testimony and its findings, stating as follows:
Since [appellant] moved with the children to Texas to live with her father, she has
changed her residence two additional times. She presently resides with her step sister
who runs a chiropractic clinic and for whom she works part time at home. The
children were enrolled in the Danbury schools and their academic performance
continues to be satisfactory as it was in Ouachita County. [Appellant] contends that
she continues to search for full time employment in Texas.
[Appellant] basically gave two reasons for moving to Texas with the children during
the course of the school year. She contends that there were no job opportunities in
the Ouachita County area for her and that it was important that she move away from
her mother and step father who resided there. Testimony of the parties confirmed that
since their divorce, [appellant’s] step father had serious issues with alcohol and it was
not appropriate for the children to be in his care. Prior to this development the
children were very close to their step grandfather and continue to be close to their
grandmother, the mother of [appellant]. The step grandfather has, for some time, been
sober and there appears no reason for continued separation from the children.
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[Appellant] is presently estranged from her mother and her younger sister. She
testified that the reason for the estrangement was her mother’s support of [appellant’s
former] husband related to issues involving the children, including petitions to the
Court.
[Appellee] continues to be employed at Falcon Jet in Pulaski County, where he
resides. He has maintained employment with that company and its predecessors for
over twenty years, and his job position appears to be very stable. [Appellee’s] parents
would welcome the children of the parties into the home. The children resided in the
home in Little Rock for a period of six weeks during the summer.
[Appellee] contends that [appellant’s] move to Texas with the children was yet
another act taken for the purpose of alienating him and other family members from
them. It is apparent from the testimony that [appellant] has, since the divorce, pursued
a continued course of conduct for the purpose of adversely affecting [appellee’s]
ability to have a meaningful relationship with the children. [Appellant] has, on several
occasions, not placed the needs nor the well being of her children before her desire
to hurt or humiliate the children’s father. She has shown a definite insensitivity to the
welfare of the children, their pets and their possessions.
Unfortunately, [appellant’s] focus has lately been to promote the severance of
relationships to the detriment of the children and not to provide for and insure their
best interest. These actions have continued though [appellant] has been forewarned
by Court order that her continued conduct might result in a change of custody being
granted.
There indeed has been a material change in the circumstances of the parties since
[appellant] was granted custody in the divorce action. [Appellee] has met his burden
of proving such a change. This Court recognizes that in order to promote stability and
continuity for the children and to discourage repeated litigation of the same issues, it
is required that a more rigid standard for custody modification be met.
The Court has given due consideration to the factors to be addressed in regard to
[appellant’s] relocation to Texas with the children. The reason given for the relocation
by [appellant] does not appear compelling. She did not make reasonable efforts to
obtain employment in Ouachita County and her “employment” with her step sister’s
clinic is questionable as to its viability.
The educational, health and leisure opportunities in Texas as opposed to Pulaski
County, Arkansas, would appear to be comparable. The move to Texas, some 450
miles distant from the father of the children and extended family has adversely affected
the relationships involved especially given [appellant’s] continued refusal to encourage
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successful and meaningful visitations and communications between the children and
their father.
This Court has taken into consideration the testimony of the two oldest children
regarding their preferences [to stay with their mother]. The children had nothing
negative to offer as to their father or the home he could provide for them. [Appellee]
can provide the children with the necessary nurture, structure and stability for them
to grow and prosper.
[Appellee] has met his burden to overcome any presumption in favor of the relocation
by [appellant] and has shown the move was not in the best interest of the children.
Taking all into consideration it is in the best interest of these children that they be
placed with [appellee] and that legal custody be vested in him.
An order was filed on September 10, 2012, reflecting the circuit court’s opinion letter.
Appellant filed a timely notice of appeal, and this appeal followed.
II. Standard of Review
The Arkansas Supreme Court recently held:
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. See Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d
520 (1999). We give due deference to the superior position of the circuit court to
view and judge the credibility of the witnesses. See id. This 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. See id. Where
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.
See id. (citing Campbell v. Campbell, 336 Ark. 379, 985 S.W.2d 724 (1999); Stamps v.
Rawlins, 297 Ark. 370, 761 S.W.2d 933 (1988)).
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. See Alphin v. Alphin, 364 Ark. 332, 219 S.W.3d 160 (2005). 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
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that were either not presented to the circuit court or were not known by the circuit
court at the time the original custody order was entered. See id.
McNutt v. Yates, 2013 Ark. 427, at 8–9, ___ S.W.3d ___, ___.
III. Discussion
Appellant contends that the circuit court’s error was the determination that there had
been a material change in circumstances. She claims that the problem is that the only
discussion by the circuit court revolved around appellant’s relocation to Texas. She cites
Hollandsworth v. Knyzewski, 353 Ark. 470, 485, 109 S.W.3d 653, 663 (2003), for the
proposition that the non-custodial parent has the burden to rebut the presumption in favor
of relocation for custodial parents with primary custody. Hollandsworth examined five criteria
in making a relocation determination that would be in the best interest of a child:
(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.
Hollandsworth, 353 Ark. at 485, 109 S.W.3d at 663–64. Our supreme court held that
relocation alone is not a material change in circumstances. Id. at 485, 109 S.W.3d at 663.
Therefore, appellant argues that there must be some other factors that constitute a material
change of circumstances. She maintains that none were proved by appellee.
Appellant contends that her relocation cannot be viewed as an attempt to hamper
appellee’s visitation rights because his latest contempt motion against her did not result in a
contempt finding. She claims that, even if interference had occurred, a change of custody
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is not always in the best interest of the children. She complains that the circuit court did not
recognize the presumption set forth in Hollandsworth when it concluded that her reason for
relocating was not compelling. She maintains that she was not required to prove any reason
for relocation. Fischer v. Smith, 2012 Ark. App. 342, at 5, ___ S.W.3d ___, ___ (A custodial
parent’s desire to leave his or her place of residence, without more, is not a legal barrier to
relocation.).
Appellant argues that the circuit court did not follow Hollandsworth, supra, because it
compared the educational, health, and leisure opportunities in Texas and Pulaski County,
rather than Ouachita County. Also, appellant argues that it was error for the circuit court
to find that the move adversely affected the relationships between the children and appellee.
She claims that appellee had to show that he would have no meaningful relationship with the
children based on the relocation. She maintains that the 450-mile distance is less than the
500-mile distance in Hollandsworth, where the court found that a parent could have adequate
visitation. Hollandsworth, 353 Ark. at 486, 109 S.W.3d at 664. See also Fischer, supra (where
adequate visitation found when relocation was to Virgin Islands). Thus, she argues that her
relocation to Texas alone did not mean that appellee could not have a meaningful
relationship with the children.
Appellant also argues that the circuit court discounted the children’s preference to live
with her in Texas. Further, she maintains that the relocation to Texas was based on a need
for family support from her father and sisters more than her need for employment
opportunities. Appellant concludes that appellee was not concerned about the children’s
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welfare because he requested, alternatively, that she be forced to move back to Arkansas or
that custody be changed. She maintains that custody was changed solely based on her
relocation and that this court should reverse the circuit court’s ruling.
Appellee responds that the circuit court did not fail to apply the presumption found
in Hollandsworth, supra, and that the circuit court correctly determined that the presumption
had been rebutted. He then argues that relocation was not the sole factor relied on by the
circuit court in finding a material change in circumstances. We agree.
The circuit court found that appellant had pursued a continued course of conduct for
the purpose of adversely affecting appellee’s ability to have a meaningful relationship with the
children. We hold that the application of Hollandsworth is not relevant because we are not
reviewing a case granting or denying a custodial parent’s petition to relocate. The circuit
court made a determination on a petition to change custody, which was premised on a
change of circumstances that included the fact that appellant had moved.
The material change in circumstances included that, in the face of a court order stating
that preventing visitation could result in a change of custody, appellant moved with the
children to Texas without prior notification to appellee and without adjustments to the
visitation schedule. The move occurred in the middle of the semester. There was evidence
that appellant said “shit” in the children’s presence immediately after a court hearing, where
the circuit judge admonished the parties to get along. There was testimony that appellant
called appellee names in the presence of the children, and that the children grew timid
around appellant. Pictures of the condition of the children’s rooms were presented in
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evidence, reflecting the rooms in disarray with clothes thrown throughout. Finally, appellee
took G.K. to the doctor because he woke up with a severe headache on the first day of his
visitation with appellee. G.K. was treated for malnutrition and dehydration. Appellant later
told appellee that G.K. had been complaining about a headache for a couple of weeks prior
to the visitation.
Therefore, relocation was not the sole factor on which the circuit court relied in
finding a material change in circumstances. Based on our de novo review, the circuit court’s
decision—that it was in the children’s best interest to change custody to appellee—was not
clearly erroneous.
Affirmed.
WALMSLEY and GRUBER , JJ., agree.
Worsham Law Firm, P.A., by: Richard E. Worsham, for appellant.
Eugene D. Bramblett, for appellee.
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