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Rice v. Rice

Court of Appeals of Arkansas, Division I

November 30, 2016




          James W. Harris, for appellant.

          Burrow & Walker, by: Gina M. Knight, for appellee.

          LARRYD. VAUGHT, Judge

         Appellant 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.

         While 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.

         On 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."

         At the 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.

         Scott 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 their bills.

         The 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.

         At the 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.

         The 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.[1]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.

         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. 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 ...

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