FROM THE UNION COUNTY CIRCUIT COURT [NO. 70DR-12-330]
HONORABLE DAVID F. GUTHRIE, JUDGE.
& Sawyer, PLLC, by: R. Jeffrey Sawyer; and McDonald Law
Firm, by: Gary McDonald, for appellant.
Jeremy Shane Fudge appeals from the order of the Union County
Circuit Court changing custody of his three minor children to
the children's mother, appellee Whittney Lynell Dorman.
Fudge argues that the circuit court erred in finding changed
circumstances and that a transfer of custody to Dorman was
not in the children's best interest. We agree that there
was no material change in circumstances sufficient to warrant
modification of custody and therefore reverse and remand.
parties divorced in 2010, and Dorman initially had custody of
the children until 2011 when she voluntarily relinquished
custody to Fudge. In 2013, Dorman petitioned the court for
custody of the three children, and on December 3, 2013, the
circuit court entered an agreed order whereby Fudge continued
to have primary physical custody. On January 6, 2016, Dorman
filed a motion to change custody on both a temporary and a
final basis citing a material change of circumstances. For
her emergency motion, she alleged that the children were in
jeopardy while in the care and custody of Fudge because of a
drunken incident that occurred between Fudge and his current
wife at the Liberty Bowl in Memphis, Tennessee, a few days
before. The court granted the ex parte motion but denied the
temporary change of custody two days later, holding that the
events that occurred at the Liberty Bowl were insufficient to
cause a change in the custody arrangement because "[t]he
differences between [Fudge] and his [current wife] which
caused [Dorman] to file her request for ex-parte emergency
custody did not occur in the presence of the children."
While the circuit court ruled that there was no emergency and
denied that part of the motion, on April 12, 2016, the
circuit court entered an order addressing the remaining part
of the motion and changed custody to Dorman. Fudge filed a
timely notice of appeal.
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. Riddick v. Harris,
2016 Ark.App. 426, at 4, 501 S.W.3d 859, 864. 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. Alphin v. Alphin, 364 Ark.
332, 336, 219 S.W.3d 160, 162 (2005). If 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. Williams v. Geren, 2015 Ark.App. 197,
at 10, 458 S.W.3d 759, 766.
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. Rice v.
Rice, 2016 Ark.App. 575, at 4-5, ___ S.W.3d ___, ___. 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. Id. Generally, courts impose more
stringent standards for modifications in custody than they do
for initial determinations of custody. Id. The
reasons for requiring more stringent standards for
modifications than for initial custody determinations are to
promote stability and continuity in the life of the child and
to discourage repeated litigation of the same issues.
Id. In order to change custody, the circuit court
must first determine that a material change in circumstances
has occurred since the last order of custody; the party
seeking modification has the burden of showing a material
change in circumstances. Id. If that threshold
requirement is met, the circuit court must then determine who
should have custody, with the sole consideration being the
best interest of the children. Williams, 2015
Ark.App. 197, at 10, 458 S.W.3d at 766. Determining whether
there has been a change of circumstances requires a full
consideration of the circumstances that existed when the last
custody order was entered in comparison to the circumstances
at the time the change of custody is considered. Id.
order dated April 12, 2016, the circuit court stated,
In making its decision, this Court is not suggesting that
either party is not capable or competent to take care of the
children, but the Court finds that in 2013 custody changed to
Jeremy Shane Fudge as a result of Whittney Lynnell Fudge (now
Dorman) doing what she thought was in the best interest of
the children given her circumstances in life at that time.
Since that occasion, the circumstances that motivated
Whittney Lynnell Fudge (now Dorman) to place the parties'
minor children with Jeremy Shane Fudge have changed for the
positive. She is now capable of taking care of the children,
she has settled her affairs that caused her to ask Jeremy
Shane Fudge to take the children in 2013.
circuit court also explained from the bench,
[This decision] is not clearly an adverse reflection on
[Fudge] and his care of the children during the interim; it
appears that both parties are capable, competent and loving
parent [sic] and seek only the best for their children. The
concern is that only one can have custody and [Dorman] gave
up custody years back for the best interest of the children
and it is only appropriate that she [sic] now that she has
settled her affairs, financial affairs, work affairs,
emotional affairs and any family affairs and is now more
capable of taking care of the children in question.
the circuit court failed to address the full consideration of
circumstances that existed when the last custody order was
entered compared to the present situation. Furthermore, the
circuit court failed to make specific findings that a
material change in circumstances had occurred since
that order. Arkansas caselaw is well settled that a change of
the circumstances of the noncustodial parent is not alone
sufficient to justify a change of custody. See
Wiliams, supra; Middleton v.
Middleton, 83 Ark.App. 7, 15, 113 S.W.3d 625, 629
(2003). The circuit court made a general finding that a
change in circumstances had occurred, and then it failed to
make specific findings regarding the best interest of the
children. See Williams, supra (holding that
we defer to a circuit court's credibility determinations,
but those determinations must relate to testimony regarding
material facts in order to support a finding of changed
the record does not support the circuit court's findings
that Dorman has her affairs in order. Testimony revealed that
Dorman owes $10, 000 in back child support, she is behind on
her car payment, and she has been out of a job for two
months. Per testimony, she does have a job lined up, but it
will require her to work overnight, leaving Dorman's
husband of a year and a half-who has spent minimal time with
the children and is away from home for work three to four
months at a time-to be the primary caregiver while she is
gone. Dorman's aunt, who has multiple felony convictions
related to methamphetamine, agreed to be a secondary
caregiver if Dorman's husband is unavailable. The circuit
court is putting the interests of Dorman before the best
interest of the children.
the circuit court's findings did not, on their own,
constitute a material change in circumstances sufficient to
warrant modification. Based on our holding, any inquiry into
the best interest of the children is not necessary.