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Wymer v. Hutto

Court of Appeals of Arkansas, Division I

September 24, 2014

DAYLE C. WYMER, APPELLANT
v.
LORI C. HUTTO, APPELLEE

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, NINTH DIVISION. NO. DR2008-5465. HONORABLE MARY SPENCER MCGOWAN, JUDGE.

Lisa Jones Ables, for appellant.

Worsham Law Firm, P.A., by: Brooke F. Steen, for appellee.

GRUBER and VAUGHT, JJ., agree.

OPINION

Page 913

PHILLIP T. WHITEAKER, Judge.

Appellant Dayle C. Wymer appeals a Pulaski County Circuit Court order awarding a change in custody of his minor child to his former wife, Lori Hutto. He raises two points on appeal: (1) that the trial court improperly limited his introduction of evidence and (2) that the trial court erred in finding that it was in the best interest of the child to grant custody to Hutto. Finding no error, we affirm.

For his first point on appeal, Wymer asserts that the trial court improperly limited his introduction of evidence. He maintains that the trial court mistakenly considered this to be a relocation case and, as a result, improperly excluded evidence concerning the best interest of the child. Wymer, however, failed to proffer the evidence he contends was improperly excluded. To challenge a ruling excluding evidence, an appellant must proffer the excluded evidence so the appellate court can review the decision, unless the substance of the evidence is apparent from the context. Swadley v. Krugler, 67 Ark.App. 297, 999 S.W.2d 209 (1999). Wymer's failure to proffer the testimony he believed should have been introduced prevents our review.

For his second point of appeal, Wymer argues that the trial court erred in awarding Hutto primary physical custody of L.W. When a change of child custody is sought in a joint custody arrangement, the trial court must first determine that a material change in circumstances has transpired from the time of the divorce decree and, then, determine that a change of custody is in the best interest of the child. See Singletary v. Singletary, 2013 Ark. 506, 431 S.W.3d 234. Here, the court held that Hutto's remarriage and her subsequent move to Shirley, Arkansas, resulted in a material change of circumstances. Wymer does not contest this finding.

Wymer's only challenge to the modification is the trial court's determination that it was in the child's best interest to place primary physical custody with Hutto. Arkansas law is well settled that the primary consideration in child-custody

Page 914

cases is the welfare and best interest of the children; all other considerations are secondary. Anderson v. Thomas, 2013 Ark.App. 653.

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.

A de novo review of the evidence reveals that Wymer and Hutto were divorced in December 2009. At the time of the divorce they had two children, C.W. and L.W. As a part of the divorce, the parties, who both lived in Little Rock, Arkansas, agreed to share joint physical and legal custody of their two children, utilizing a schedule that allowed them to each have equal time with the children. The parties additionally agreed that should either one move so as to necessitate a modification of the custody arrangement or visitation, such a move shall be considered a change in circumstances ...


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