HOLLY K. RICE APPELLANT
SCOTT RICE APPELLEE
FROM THE MISSISSIPPI COUNTY CIRCUIT COURT, CHICKASAWBA
DISTRICT [NO. 47DR-10-246] HONORABLE CHARLES BRENT DAVIS,
W. Harris, for appellant.
& Walker, by: Gina M. Knight, for appellee.
LARRYD. VAUGHT, Judge
Holly Rice appeals from the Mississippi County Circuit
Court's grant of appellee Scott Rice's motion for
directed verdict during the hearing on her motion to change
custody of their two children. The only point she raises on
appeal is that the court erred in finding that there were not
changed circumstances warranting modification of custody. We
disagree and affirm.
married, Holly and Scott Rice had one biological child, and
he adopted her child from a previous relationship. During
divorce proceedings in 2010, the court initially awarded
temporary joint custody of the two children. However, during
the course of the case, Scott filed for an order of
protection against Holly, after which Holly entered drug
rehabilitation, withdrew her complaint for divorce, waived
corroboration of grounds on Scott's complaint, and
voluntarily transferred custody of the children to Scott. The
court granted Scott permanent custody of the children and
granted Holly standard visitation.
February 26, 2015, Holly filed a motion for change of
custody, alleging that "the Defendant has remarried; he
is currently separated from his new wife; and, at the present
time the Defendant is not employed, and has no ascertainable
financial means to support himself."
hearing, the evidence demonstrated that Holly had
successfully completed drug rehabilitation, had moved back to
Blytheville from Jackson, Tennessee, had obtained stable
employment, was purchasing a three-bedroom house, and was
consistently attending addiction-support meetings.
had remarried and moved himself and the children to
Paragould. However, when it became clear that his children
and his new wife's children could not peacefully coexist
and should not continue to live together, he and the children
moved into a two-bedroom apartment. He and his new wife
divorced, but ultimately reconciled, deciding to remarry
while continuing to live apart because they felt it was best
for the children. Scott quit his job in Blytheville when he
moved to Paragould, but he found part-time work as a
substitute teacher. He then found a new job at Mid-South
Health, and together, he and his new wife are able to pay
couple's eleven-year-old daughter testified that she
would prefer to live with Holly. However, her testimony was
fairly even as to both parents; she testified about things
she liked and disliked about living with each.
close of Holly's evidence, Scott moved for a directed
verdict, arguing that she had failed to prove that there was
a material change in circumstances to warrant a modification
of custody. In response, Holly's attorney listed numerous
changes that had occurred since the divorce, including
Scott's marriage, divorce, remarriage, and separate
living arrangement; the move from Blytheville to Paragould;
Scott's change of jobs; and the kids' move from one
school to another. Scott's attorney countered that, while
there had been many changes, there had not been anything that
legally met the requirements of a material change in
circumstances warranting modification of custody.
court granted Scott's motion for directed verdict, ruling
from the bench that, while there had been changes, none of
those changes had a negative or detrimental impact on the
children. Therefore, the court found that there had not been
a material change in circumstances, so it declined to further
address the issue of modification of custody.Following the
hearing, the court issued a lengthy order outlining its
findings. It found that Scott's marriage, divorce,
remarriage, and separate living arrangement were not material
changes because the changes had not had any negative impact
on the children and because their current living situation
was similar to what it had been at the time of the divorce.
The court also found that Scott's change in jobs was not
a material change in circumstances because he continued to be
employed and earn money, and that he had financial means
(through his own income and that of his wife) to meet the
kids' needs. The court noted that a custodial
parent's relocation and change in jobs in order to live
with or near a new spouse is not sufficient to constitute a
material change in circumstances. The court found no evidence
to support Holly's claim that Scott had no financial
means to support himself. The court then specifically found
that while "there have been some changes in factors and
circumstances, none of these changes approach a material
change in circumstances that would merit a modification of
custody." It is the circuit court's duty, in
deciding a motion to dismiss made after the presentation of
the plaintiff's case, to determine whether, if the case
were a jury trial, there would be sufficient evidence to
present to a jury. Wagner v. Wagner, 2011 Ark.App.
475, at 2 (citing Woodall v. Chuck Dory Auto Sales,
Inc., 347 Ark. 260, 264, 61 S.W.3d 835, 838 (2001)). The
circuit court does not exercise its fact-finding powers, such
as judging the witnesses' credibility, in making this
determination. Id. On appeal, we view the evidence
in the light most favorable to the nonmoving party, giving
the proof presented its highest probative value and taking
into account all reasonable inferences deducible therefrom.
Id. We affirm if there would be no substantial
evidence to support a jury verdict. Id. In other
words, when "the evidence is such that fair-minded
persons might reach different conclusions, then a jury
question is presented, and the directed verdict should be
reversed." Id. at 2-3.
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. Harris
v. Harris, 2010 Ark.App. 160, at 13, 379 S.W.3d 8, 16. 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, or when there is a showing of facts affecting the
best interest of the child that either were not presented to
the circuit court or were not known by the circuit court at
the time the original custody order was entered. Id.
at 13, 379 S.W.3d at 16; Stehle v. Zimmerebner, 375
Ark. 446, 291 S.W.3d 573 (2009). Generally, courts impose
more stringent standards for modifications in custody than
they do for initial determinations of custody. Grisham v.
Grisham, 2009 Ark.App. 260. The reasons for requiring
more stringent standards for modifications than for initial
custody determinations are to promote ...