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Dare v. Frost

Court of Appeals of Arkansas, Division IV

May 17, 2017

PARRISH DARE APPELLANT
v.
SCOTT FROST APPELLEE

         APPEAL FROM THE SALINE COUNTY CIRCUIT COURT [NO. 63DR-16-211] HONORABLE BOBBY MCCALLISTER, JUDGE

          The Lancaster Law Firm, PLLC, by: Clinton W. Lancaster, for appellant.

          Cullen & Co., PLLC, by: Tim J. Cullen, for appellee.

          MIKE MURPHY, Judge.

         Parrish 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.

         Scott 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 with Dare.

         Sometime 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 order.

         Frost 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[1] and calculated the child-support obligation under Administrative Order No. 10.

         Dare 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.

         I. Material Change

         Visitation 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.

         In its 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 visitation.

         We have 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.

         II. C ...


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