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Emis v. Emis

Court of Appeals of Arkansas, Division I

June 7, 2017



          Law Office of Kathryn L. Hudson, by: Kathryn L. Hudson; and Pinnacle Law Firm, PLLC, by: Matthew D. Campbell, for appellant.

          Ballard & Ballard, P.A., by: Andrew D. Ballard, for appellee.

          PHILLIP T. WHITEAKER, Judge

         This appeal arises from a child-custody modification. Robin Emis appeals the Pulaski County Circuit Court order modifying the custody arrangement of the parties' minor children placing primary custody in Keith Emis and providing Robin with visitation. She also appeals the trial court's award of attorney's fees and its denial of other posttrial motions. We affirm.

         The procedural history is as follows. Robin and Keith divorced in September 2011 when their twin boys were twenty-two months of age. Robin was awarded custody, and Keith was awarded visitation. Subsequently, Robin and Keith reached an agreement modifying the custody, support, and visitation provisions of the decree. They agreed that each would have "joint physical custody of the minor(s), with legal custody vested in Plaintiff Robin Emis." On September 5, 2014, the trial court entered an order modifying support, custody, and visitation pursuant to their agreement, nunc pro tunc to May 1, 2012.

         Eventually both Robin and Keith sought an award of primary custody, and Robin requested the court's permission to relocate with the children to Florida. Their respective claims were tried by the court during a three-day hearing. On August 27, 2015, the trial court entered a formal order denying Robin's motions and granting Keith's request for a change in custody. Robin filed a timely notice of appeal from this order. See Emis v. Emis, 2017 Ark. 52, 508 S.W.3d 886.

         Posttrial, Robin filed a motion for recusal, which was denied by the court. Keith filed a motion to strike an affidavit and a motion for attorney's fees, which were both granted by the court. The court also granted a motion for attorney's fees filed by the attorney ad litem. Robin timely filed notices of appeal from those orders as well.

         On appeal, Robin argues that the trial court erred in denying her motion to relocate by finding that she had engaged in a constructive fraud with respect to the entry of the September 2014 child-custody agreement and by construing that agreement to be one of "true joint custody." She also challenges the trial court's finding that a material change of circumstances existed to support modification. Finally, she challenges the trial court's award of attorney's fees to the attorney ad litem and opposing counsel; its denial of her motion for recusal without benefit of a hearing; its decision to strike an affidavit without a hearing and while the motion to recuse was still pending; and its order denying her request to vacate the appointment of the attorney ad litem without a hearing. We consider each of these issues in turn.

         I. Child Custody and Relocation

         We first consider the issue of whether the trial court erred in awarding primary custody of the children to Keith and in denying Robin's request to relocate. In reviewing this equity matter, we conduct a de novo review of the record and do not reverse a finding by the trial court unless it is clearly erroneous or clearly against the preponderance of the evidence. Foley v. Foley, 2014 Ark.App. 351. We also give due deference to the trial court in judging the credibility of the witnesses, and this deference is even greater in cases involving child custody, since a heavier burden is placed on the trial court to utilize to the fullest extent its powers of perception in evaluating the witnesses, their testimony, and the best interest of the children. Id. With these standards in mind, we turn our consideration to the issues of custody and relocation before the trial court.

         A. Custody Determination

         We begin our consideration with the trial court's decision to award primary custody of the twins to Keith. 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. Nichols v. Teer, 2014 Ark.App. 132, 432 S.W.3d 151. Thus, we must conduct a de novo review of the nature of the custody relationship created by the September 2014 agreed order so that we may properly evaluate the trial court's finding of a material change of circumstances in this case.

         The trial court found that the September 2014 agreed order established joint custody of the children between Robin and Keith. In reaching this conclusion, the court found that the "joint custody arrangement" agreed to by the parties was ambiguous. As a result, the court considered the circumstances surrounding the entry of the order in its determination. Robin challenges the trial court's characterization of the child-custody arrangement. She contends that the order was not ...

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