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
Johnson, Sanders & Morgan, by: Robert S. Clarke, for
KENNETH S. HIXSON, Judge
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. 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.
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
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).
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.
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.
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.
testified that K.A. was enrolled in Montessori School in
Mountain Home.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.
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.
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
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