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Acre v. Tullis

Court of Appeals of Arkansas, Division II

April 26, 2017

NICHOLAS ACRE APPELLANT
v.
ASHLEY ACRE TULLIS APPELLEE

         APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT [NO. 23DR08-188] HONORABLE H.G. FOSTER, JUDGE

          Hope, Trice, O'Dwyer & Wilson, P.A., by: Ronald A. Hope and Ralph "Win" Wilson III, for appellant.

          Choate Law Firm, PLLC, by: Penny Collins Choate and Tasha Terry, for appellee.

          RAYMOND R. ABRAMSON, Judge

         Appellant Nicholas Acre appeals from an order entered by the Faulkner County Circuit Court on May 6, 2016, that allowed appellee Ashley Acre Tullis to relocate with their minor child, G.A., to Mississippi. Acre argues several points on appeal, but we find no error and affirm the circuit court.

         The parties were divorced by decree on April 3, 2008, in the Faulkner County Circuit Court. One child, G.A., was born of their marriage. In 2010 each party filed a motion to change custody, and an agreed order was entered in October 2010 after the circuit court ordered mediation. The agreed order provided that once G.A. entered kindergarten in the fall of 2011, Tullis would be the primary residential custodian during the school year and Acre would be the primary residential custodian during the summer. The agreed order also included a section pertaining to the school or school district the minor child would attend and provided terms to change custody should the minor child no longer attend school in the city or the school district as indicated in the order.

         On May 21, 2014, Acre filed a motion for change of custody after learning that Tullis intended to move to the state of Mississippi; Tullis filed a petition to relocate on June 24, 2014. Acre also filed a motion for contempt alleging that Tullis owed child support from the date G.A. had started kindergarten to the present.

         The circuit court entered a temporary order on October 17, 2014, enforcing the parties' agreement set forth in the agreed order entered on October 27, 2010, and denying the parties' respective petitions for relief. On May 6, 2016, the circuit court entered a final order allowing Tullis to relocate to Mississippi while not altering the custodial arrangement of the parties' agreement as to the time of year each one would be the primary residential custodian. The circuit court also denied Acre's motion for contempt, finding no amount of child support was owed. Acre filed a motion for reconsideration on February 12, 2016, before the final order was entered; Tullis filed a response to the motion for reconsideration on June 1, 2016. The circuit court never ruled on the motion so it was deemed denied. This timely appeal is now properly before our court.

         On appeal, Acre argues four points: (1) the circuit court failed to uphold the terms of the agreed order entered into by the parties that contemplated a change of custody in the event the minor child did not attend certain school districts; (2) the circuit court incorrectly applied Stills v. Stills, 2010 Ark. 132, 361 S.W.3d 823, using the Hollandsworth[1] presumption in favor of Tullis and should have made a change-of-custody determination pursuant to Lewellyn v. Lewellyn, 351 Ark. 346, 93 S.W.3d 681 (2002), and Singletary v. Singletary, 2013 Ark. 506, 431 S.W.3d 234, since the parties exercised joint custody; (3) if the parties did not exercise joint custody, Tullis waived any presumption based upon her actions and the language of the agreed order, and that it was not in the child's best interest to permit the relocation; and (4) the circuit court improperly denied Acre's motion for contempt based on Tullis's failure to pay child support. For the following reasons, we affirm.

         In reviewing child-custody cases, our court considers 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. Due deference is given "to the superior position of the trial court to view and judge the credibility of the witnesses." Alphin, 364 Ark. at 336, 219 S.W.3d at 162. Our court has stated time and time again that "we know of no cases in which the superior position, ability and opportunity of the trial court to observe the parties carry as great a weight as those involving children." Carver v. May, 81 Ark.App. 292, 296, 101 S.W.3d 256, 259 (2003).

         In Acre's first point on appeal, he claims that the circuit court failed to uphold the terms of the agreed order entered into by the parties that contemplated a change in custody in the event the minor child did not attend certain school districts, but he does not argue that such failure was in error. Under Arkansas law, parties have long been able to make their own contract and fix its terms and conditions, and the contract "will be upheld unless illegal or in violation of public policy." Rownak v. Rownak, 103 Ark.App. 258, 262, 288 S.W.3d 672, 675 (2008). After a hearing and briefing by the parties, the circuit court chose not to uphold the terms of the agreed order entered into by the parties because the court found that such an agreement was unenforceable. This is within the circuit court's authority. In its order, the circuit court stated that Stills v. Stills, 2010 Ark. 132, 361 S.W.3d 823, "holds that the parties cannot enter into a contract with regard to custody that seeks to avoid the provisions of the 'Hollandsworth case' which created the presumption in favor of relocation by a custodial parent" and that the Stills case and its analysis applied to the instant case. We agree.

         Acre argues that the Hollandsworth presumption does not apply because the parties exercised joint custody; however, testimony presented showed that Tullis was the primary custodian for 41 to 42 weeks per year. This is not joint custody. The circuit court clearly has authority under Arkansas law to review an agreement to ensure that the agreement does not violate Arkansas law or public policy. Therefore, we affirm on Acre's first point on appeal.

         The second point on appeal--that the circuit court incorrectly applied Stills by using the Hollandsworth presumption in favor of Tullis and should have made a change-of-custody determination pursuant to Lewellyn and Singletary because the parties exercised joint custody--is also unpersuasive. In Singletary, our supreme court held that the Hollandsworth presumption is inapplicable when the parents share joint custody, and in joint-custody relocation cases, the focus is whether there has been a material change in circumstances and the best interest of the child. When a contract is ambiguous on its face, we resolve the ambiguity by looking at other parts of the contract and the parties' testimony about what they intended, as well as their conduct. Rockefeller v. Rockefeller, 355 Ark. 145, 980 S.W.2d 255 (1998).

         Here the parties initially agreed to joint custody until their son began kindergarten; however, the agreed order, which was entered on October 27, 2010, and is now the subject of the case before us, outlines what would ...


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