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Evans v. McKinney

Court of Appeals of Arkansas, Division I

September 3, 2014

ANGIE KAY EVANS, APPELLANT,
v.
DEVIN CHASE O'HARA McKINNEY, APPELLEE

APPEAL FROM THE BENTON COUNTY CIRCUIT COURT. NO. DR2012-840-5. HONORABLE XOLLIE DUNCAN, JUDGE.

Studebaker Law Firm, by: Dee Bailey Studebaker, for appellant.

Hatfield Harris, PLLC, by: Andrew H. Hatfield, for appellee.

ROBIN F. WYNNE, Judge. HIXSON and BROWN, JJ., agree.

OPINION

Page 358

ROBIN F. WYNNE, Judge

Angie Evans appeals from the Benton County Circuit Court's order changing custody of then four-year-old H.M. to his father, appellee Devin McKinney. We affirm the order of the circuit court.

The parties divorced in February 2011 in Missouri, and they agreed at that time that appellant would have primary custody of H.M. and that appellee would have generous visitation as set out in the decree. The parties have been involved in litigation since that time. In the Missouri court's judgment modifying the divorce decree, entered in November 2011, Devin's motion to change custody was denied and the court made certain modifications to the visitation schedule. Essentially, Devin was awarded visitation with H.M. every other weekend, alternating holidays, Wednesdays from 9:00 a.m. to 9:00 p.m., and two months in the summer. In addition, each parent was ordered to have " reasonable access to the child by telephone" during any period that H.M. was in the other parent's custody, except that no telephone calls were allowed after 10:00 p.m.

In October 2012, Devin filed a petition for contempt and change of custody in the Benton County Circuit Court. He alleged that, in violation of the Missouri court's judgment, appellant had repeatedly denied him visitation and telephone visitation, and that she had purposely tried to alienate and destroy the relationship between him and H.M. Specifically, Devin alleged that when the child arrived for visitation, he had been extremely upset and crying and had yelled, " Daddy is going to be mean to me." Devin alleged that Angie's actions constituted a material change in circumstances and that it was in the child's best interest for him to have primary custody. Angie responded, and the court appointed an attorney ad litem in the case.

On September 12, 2013, a hearing was held on Devin's petition for contempt and change of custody. At that time, H.M. had lived with his mother and older half-brother since the divorce. After the parties' divorce but before the hearing, Angie had remarried; Devin had also remarried and later divorced; and in March 2012 Devin had relocated from a house five minutes away from Angie's to Fairland, Oklahoma, approximately one-and-ahalf hours away from Angie's house. Before the parties' divorce, Angie had an accident involving a horse and suffered a brain injury, which caused significant problems for a period of time before the divorce. However, at the time of the hearing, she had a stable, full-time job and Devin testified that he could not say that she had failed to take care of H.M. The psychological evaluations of both parties were entered into evidence. Both parties were found to be able to provide a good and stable home for their son, with the caveat that Angie needed to maintain her medication to help control her mood and behavior; she also " may need more focus on tolerance, humility, and accepting the needs of others." Additional evidence included the attorney ad litem's report, in which he recommended that " it is in [H.M.'s] best interest that Devin have primary custody." The attorney ad litem

Page 359

based his opinion on his visits to both of the parties' homes, texts and emails between the parties, the psychological evaluations, and his observations at a visitation exchange. At that exchange, H.M. wanted to go with Angie's mother and Devin initially said that he could, but after talking to the attorney ad litem, he changed his mind and insisted that H.M. go with him. Angie apparently did not recognize the attorney ad litem and " started towards [his] car in a menacing way and told her mother in a loud voice that she was going to see 'see who the f*** that is." She realized who it was and turned away before she got too close.

At the conclusion of the hearing, after hearing both parties' testimony, the court made the following findings from the bench. The court found that there had been a " substantial" change of circumstances in this case, citing " a continued and intensifying problem with these visits," alienation, remarriage of both parties, and Devin's divorce and relocation. The court discussed H.M.'s best interest and stated that he was put through trauma at every visitation exchange, for which the court blamed Angie entirely. The court stated that one of the major responsibilities of the custodial parent was to foster a strong and healthy relationship between the child and the other parent, something that Angie refused to do for H.M. The court found that it was in H.M.'s best interest to immediately change custody to Devin, and Angie was ordered to pay child support of $210 bimonthly. The court entered a written order setting out the change of custody and the visitation schedule, and Angie timely appealed.

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. Anderson v. Thomas, 2013 Ark.App. 653. Generally, courts impose more stringent standards for modifications in custody than they do for initial determinations of custody. Id. The reason for requiring more stringent standards for modifications than for initial custody determinations is to ...


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