FROM THE SALINE COUNTY CIRCUIT COURT [NO. 63DR-16-211]
HONORABLE BOBBY MCCALLISTER, JUDGE
Lancaster Law Firm, PLLC, by: Clinton W. Lancaster, for
& Co., PLLC, by: Tim J. Cullen, for appellee.
Dare appeals the August 15, 2016 Saline County circuit court
order calculating child support and finding a material change
in circumstances sufficient to warrant a modification of
visitation. We affirm in part and reverse and remand in part.
Frost and Parrish Dare had a child together when they lived
in Virginia. They were never married. When Dare wanted to
move to Arkansas, the parties agreed to an order giving Dare
primary physical custody and giving Frost "liberal
visitation." It set a visitation schedule alternating
holidays and giving Frost two weeks each summer with the
minor child. Child support was set at $400 a month. Despite
the two weeks of visitation ordered each summer, Frost
typically got closer to three or four weeks, by agreement
early in 2015, Dare began asking for more support from Frost
(who was actually paying $425 a month) but he declined to pay
more. Around the same time, she stopped permitting visitation
other than what was specifically contemplated in the agreed
registered the Virginia order in Saline County and moved to
modify the order to include more visitation, alleging a
material change in circumstances. Dare counterclaimed asking
for more child support. A hearing was held on the visitation
issue; Dare and Frost were the only witnesses. The court
found a material change had occurred so as to warrant a
modification in the visitation schedule. A separate hearing
was held on the issue of child support to allow the parties
to argue why Frost's capital gains and stock portfolio
should or should not be included in any child-support
calculations. After consideration, the court concluded that
Frost's investment accounts were similar to retirement
accounts or ownership of real property and that they may be
included in the calculation of child support if Frost were to
receive any disbursements, but not until then. The court
found Frost's average net biweekly income to be
$1174 and calculated the child-support
obligation under Administrative Order No. 10.
now appeals, arguing that the circuit court erred when it (1)
found a material change in circumstances sufficient to modify
visitation and (2) declined to include Frost's investment
accounts in its calculation of his child-support obligation.
is always modifiable; however, courts require more rigid
standards for modification than for initial determinations to
promote stability and continuity for the children and in
order to discourage repeated litigation of the same issues.
Meins v. Meins, 93 Ark.App. 292, 218 S.W.3d 366
(2005) (citing Hass v. Hass, 80 Ark.App. 408, 97
S.W.3d 424 (2003)). The party seeking a change in the
visitation schedule has the burden to demonstrate a material
change in circumstances that warrants a change in visitation.
Id. The best interest of the child is the main
consideration, id., but whether a material change of
circumstances has occurred is a threshold issue. Baker v.
Murray, 2014 Ark.App. 243, at 7, 434 S.W.3d 409, 415. In
child-custody matters, we perform a de novo review, but we
will not reverse the trial court's findings unless they
are clearly erroneous. Hoover v. Hoover, 2016
Ark.App. 322, at 2-3, 498 S.W.3d 297, 299.
order, the circuit court found that Dare "had exposed
the minor child to inappropriate circumstances and has been
negative toward [Frost] sufficiently to cause strain between
the minor child and [Frost]." Dare contends that no
material change occurred to warrant a modification of
held that an elevated degree of discord between parties can
amount to a material change in circumstances. Id.
The testimony from both parties established that they had
previously been able to agree on extended summer visitations,
but at trial, Dare had indicated that she did "not see a
reason to do anything outside of the visitation guidelines if
he isn't going to do anything outside of the support
guidelines." The evidence further established that Dare
had shown the minor child the court pleadings from this case
and some of the emails between her and Frost. On one
occasion, she sent the minor child to Virginia for visitation
with her father with an empty suitcase as an admitted act of
"gamesmanship" designed to send a
"message" to Frost. Given this evidence, it was
appropriate to modify the visitation schedule to more closely
reflect the actual conduct of the parties before the
relationship devolved, and we affirm on this point.