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Acklin v. Acklin

Court of Appeals of Arkansas, Division IV

May 17, 2017

CODY LEE ACKLIN APPELLANT
v.
ASHLEN TASS ACKLIN N/K/A ASHLEN TASS GRISHAM APPELLEE

         APPEAL FROM THE BAXTER COUNTY CIRCUIT COURT [NO. 03DR-13-198] HONORABLE JOHN R. PUTMAN, JUDGE

          Gruber, C.J., and Klappenbach, J., agree. Taylor & Taylor Law Firm, P.A., by: Andrew M. Taylor and Tasha C. Taylor, for appellant.

          Johnson, Sanders & Morgan, by: Robert S. Clarke, for appellee.

          KENNETH S. HIXSON, Judge

         This is a domestic-relations case, and the issues on appeal involve the modification of child custody. Appellant Cody Acklin and appellee Ashlen Grisham were married in 2010. During the marriage, the parties had one child, K.A., a daughter who was born in May 2012. The parties divorced on November 6, 2013, and the parties agreed to joint custody of the child, with the parties alternating custody every three days.[1] On September 2, 2015, Cody filed a motion to modify custody, and Ashlen responded with a countermotion to modify custody. Both parties alleged in their motions that there had been a material change in circumstances and that they should be awarded primary custody of the child. After a hearing, the trial court entered an order on April 18, 2016, finding that there had been a material change in circumstances and awarding primary custody to Ashlen, subject to Cody's standard visitation.

         Cody now appeals from the April 18, 2016 order that changed custody from joint custody to primary custody with Ashlen. For reversal, Cody argues that the trial court's primary-custody decision was not in the best interest of the child, and in the alternative that the trial court erred in finding that a material change of circumstances warranted modification of the parties' joint-custody agreement. We affirm.

         In order to change custody, the trial court must first determine that a material change in circumstances has occurred since the last order of custody; if that threshold requirement is met, it must then determine who should have custody with the sole consideration being the best interest of the child. Nichols v. Teer, 2014 Ark.App. 132, 432 S.W.3d 151. We review child-custody matters de novo, but we will not reverse the trial court's findings unless they are clearly erroneous. Taylor v. Taylor, 353 Ark. 69, 110 S.W.3d 731 (2003). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Smith v. Parker, 67 Ark.App. 221, 998 S.W.2d 1 (1999). We recognize and give special deference to the superior position of the trial court to evaluate the witnesses, their testimony, and the child's best interest. Sharp v. Keeler, 99 Ark.App. 42, 256 S.W.3d 528 (2007).

         Cody testified that he lives in Norfork where he has lived for the past six years. He stated that for the past twelve years he has worked in the pest-control business servicing homes. Cody remarried in May 2015. He stated that they live in a three-bedroom house on two acres in the country and that K.A. has her own bedroom.

         Cody testified that the joint-custody arrangement was workable for a while, but that it was no longer working and was causing K.A. problems. Cody indicated that, since the parties' divorce, Ashlen had moved several times and that she currently lived with her new husband in Gainesville, Missouri. Cody also stated that Ashlen had changed jobs several times, and he questioned her stability. Cody indicated that he was no longer able to communicate with Ashlen about important issues involving the child.

         Cody testified that on many occasions when Ashlen would transfer the child to him, K.A. would be covered in bug bites or have boils that required medical attention. He stated that he sometimes had to take K.A. to the doctor to treat her infections. He also stated that K.A. was always dirty when she was returned from Ashlen's custody. Cody testified that, when he tried to discuss K.A.'s medical issues with Ashlen, he was met with sarcasm and rudeness.

         Cody testified that K.A. was enrolled in Montessori School in Mountain Home.[2]He stated that lately K.A. had been having behavior problems in school. He stated that, if he was given primary custody, he would enroll K.A. in school in Norfork. Cody's mother testified that she is a teacher at the Norfork school where Cody wants K.A. to attend.

         Ashlen testified that she has remarried and that she and her husband have lived in Gainesville, Missouri, since November 2014. Ashlen is a surgery technician at Baxter Regional Medical Center, where she has worked since October 2014. Ashlen and her husband have a son, and K.A. shares a bedroom with her half-brother. Ashlen testified that K.A. loves to play with her brother and loves to be outside playing with her dog.

         Ashlen acknowledged that K.A. would sometimes get bug bites or boils, but she stated that she always treated these problems and would take K.A. to the doctor when necessary. Ashlen maintained that the boils were not an everyday thing but had happened only a couple of times in the past two years. Ashlen stated that she made sure that K.A. bathed daily and was always clean.

         Ashlen agreed that there was a lack of communication between her and Cody regarding the child's needs. Ashlen stated that, since Cody remarried, he has become completely difficult and they cannot get along about anything. Ashlen complained that Cody had taken K.A. to the hospital for medical problems without notifying her. Ashlen also complained that Cody would sometimes keep K.A. home from school for no reason. Ashlen stated that she has bent over backwards to try to get along ...


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