FROM THE FAULKNER COUNTY CIRCUIT COURT [NO. 23DR08-188]
HONORABLE H.G. FOSTER, JUDGE
Trice, O'Dwyer & Wilson, P.A., by: Ronald A. Hope and
Ralph "Win" Wilson III, for appellant.
Law Firm, PLLC, by: Penny Collins Choate and Tasha Terry, for
RAYMOND R. ABRAMSON, Judge
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.
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.
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.
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.
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 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.
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).
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.
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.
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).
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 ...