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Cooper v. Kalkwarf

Court of Appeals of Arkansas, DIVISIONS I, II, III

June 21, 2017




          LaCerra, Dickson, Hoover & Rogers, PLLC, by: Lauren White Hoover, for appellant.

          D. Paul Petty, for appellee.

          WAYMOND M. BROWN, Judge

         On March 29, 2017, we issued an opinion that reversed the trial court's order granting appellee's petition to relocate with the parties' minor son. Appellee subsequently filed a petition for rehearing, asking this court to reconsider the decision. We accept her invitation, grant the rehearing petition, and issue this substituted opinion.

         Appellant Nathan Cooper appeals the order of the Pulaski County Circuit Court granting appellee Shannon Kalkwarf's request to relocate with the parties' minor son. For reversal, appellant contends that the trial court erroneously applied the presumption in favor of relocation as set out in Hollandsworth v. Knyzewski.[1] We agree and reverse and remand.

         The parties were divorced by decree on July 9, 2012. At the time of the divorce, the parties had one minor son, B.C. (DOB 5-31-09). The parties entered into an agreement regarding custody, which was incorporated, but not merged, into the decree. According to the agreement, appellee was to have "primary physical custody" of B.C. and the parties were to share "joint legal custody." Appellant was granted "reasonable and liberal visitation with the minor child, " which included appellant having the "minor child at a minimum of three nights out of every seven days with two days being consecutive." The holiday visitation schedule alternated each year. Appellant was granted visitation on Father's Day yearly, and appellee was granted yearly visitation on Mother's Day. The visitation schedule was to continue during the summer; however, both parties were allowed "two non-consecutive weeks of vacation visitation during the summer" upon "reasonable notice" to the other party. Each party agreed to contact the other parent for overnight childcare before a third party or non-relative was to care for the child. As for relocation, the agreement stated, "[n]either party shall move the minor child out of the State of Arkansas without express consent in writing from the other party and/or an order from the Court authorizing the removal of the child from Arkansas." Appellant was ordered to pay monthly child support in the amount of $470. He was also required to provide a copy of his W-2 and state and federal personal income tax returns to appellee within thirty days of receipt and/or filing. Appellee was to continue to maintain, at her expense, health insurance for B.C. However, the parties were to equally divide any non-covered medical, dental, orthodontic, or prescription-drug expenses.

         Appellee remarried on December 30, 2015. She filed a petition for modification on January 15, 2016, alleging that there had been a material change in circumstances and that it would be in B.C.'s best interest if appellee was allowed to relocate with him. Appellee listed several reasons why she should be allowed to relocate with B.C., including the fact that she had recently remarried, and her husband had accepted a residency in trauma surgery in Houston, Texas. She also stated that she intended to advance her career as an APN in cancer prevention. Appellant filed a response to appellee's petition on February 23, 2016, asserting that he and appellee had shared joint custody of B.C. since the divorce, that he had almost daily contact with B.C., and that he was a "strong presence in [B.C.'s] daily life." He agreed that there had been a material change in circumstances, but he denied the remaining allegations in appellee's petition and asked the court to deny it. Appellant filed a motion for joint custody on June 3, 2016. He alleged that there had been a material change in circumstances that required "modification of the custodial arrangement and visitation schedule to a joint custodial schedule and such is in the best interest of the minor child." Appellant asked that appellee's petition for relocation be denied and that a joint-custody award be entered. Appellee filed a reply to appellant's motion on June 14, 2016, essentially denying the material allegations.

         The court held a hearing on the parties' petitions on July 11, 2016. Appellee testified that her husband, Kyle Kalkwarf, had accepted a fellowship in trauma surgery at UT Houston. She stated that he started his fellowship on July 1 and that he was currently living in Houston. She asked the court to allow her to relocate to Houston so that she and B.C. could join Kyle. She said that she and appellant shared joint legal custody of B.C. She testified that she and appellant modified the visitation schedule so that she had B.C. eight out of fourteen nights and appellant had B.C. six out of fourteen nights.[2] She stated that they received the same number of days with B.C. as required by the decree but that they swapped some days so that B.C. would not have to go back and forth as often. She said that she was formerly employed at UAMS as a nurse practitioner and as a teacher in the College of Nursing at UAMS. She stated that she had recently ended that employment in contemplation of moving to Houston. She testified that she had recently been offered a position at the School of Nursing in Houston as an instructor. She stated that this position included a twenty-one percent increase in salary. She said that they had found a rental home in close proximity to the hospital as well as the elementary school B.C. would be attending. She testified that Kyle was required to complete two years of a trauma fellowship, and that after that, there was a "possibility" that they would return to Arkansas if he was hired by UAMS.

         Appellee stated that she and appellant had a "pretty good working relationship" in regard to custody. However, she stated that they also had issues. She testified that B.C.'s Arkansas family included paternal and maternal grandparents, aunts, uncles, and cousins. She stated that Kyle had some extended family in Texas, including his parents who live in San Antonio. She said that B.C. attended Christ the King, which is a private school, for kindergarten and first grade. She stated that tuition was $6, 000 a year and that it was expected to increase to $6, 400 the next school year. Appellee stated that she was solely responsible for B.C.'s tuition, although she and appellant both discussed where B.C. would attend school. She said that after-school care cost her an additional $2, 500 a year. She stated that she purchased uniforms for B.C. for both her home and appellant's home. She acknowledged that appellant paid his child support and that he did provide some clothing for B.C. However, she maintained that it was she who provided the majority of the clothing for B.C. She stated that appellant was responsible for B.C.'s haircuts but that there had been instances in which he sought reimbursement from her. Appellee stated that appellant had not shared in the out-of-pocket medical, dental, etc. expenses as ordered by the decree. However, she also stated that she had only asked him once, and he failed to do so. Appellee said that she was active in coming to parties and other activities at B.C.'s school. She stated that before her petition for modification, appellant's participation had been very minimal. She testified that after the divorce, appellant told her that he would not contribute to a college fund for B.C. because he was still paying off his student loans. Appellee stated that Kyle's parents had started a college fund for B.C. and had placed $64, 000 in it. She said that she had a master's degree and that her new job in Houston would allow her to continue her education. She stated that B.C. attended camp during the summer and that she paid the weekly tuition even if B.C. was with appellant that week because appellant had never volunteered to pay it.

         Appellee had formulated a visitation schedule in case she was allowed to relocate with B.C. This schedule included the following: (1) she would pay for B.C. to fly to Arkansas once a month; (2) appellant could fly to Texas once a month, at his expense; (3) they would rotate a week at Christmas; (4) appellant would have B.C. every spring break; and (5) appellant would have B.C. for six weeks in the summer, with appellee coming maybe two weekends during this time. According to this schedule, appellee stated that appellant would be able to see B.C. 110 days out of the year. She acknowledged that this was a cut from the 156 days a year appellant had been awarded per the decree. Appellee stated that she began keeping a calendar of the amount of time each of them spent with B.C. in 2014 and that from June 2014-January 2015, she had B.C. sixty-five percent of the time to appellant's thirty-five percent. She stated that in 2015, she had B.C. sixty percent of the time to appellant's forty percent.

         Appellee stated that she had known Kyle for four years and that they dated three-and-a-half years before they were married. She said that B.C. has a great relationship with Kyle and that, based on B.C.'s memory, Kyle had always been there. She testified that B.C. is aware that appellant is his father and that B.C. loves appellant. She stated that she was not seeking reimbursement for her out-of-pocket expenses. She said that she just wanted to be allowed to relocate with B.C.

         On cross-examination, appellee acknowledged that the divorce decree did not require anyone to pay for college tuition or to reimburse the other party for expenses not specifically listed in the decree. She stated that although she and appellant had some communication issues, [3] she never petitioned the court to intervene. Appellee stated that she and appellant would share B.C.'s first day of school and Christmas together with B.C. regardless of who had him for visitation. She said that the only extended family they had in Texas was Kyle's parents but that her parents were "contemplating maybe in the future getting a place in Houston." She stated that B.C. had never stayed the night with Kyle's parents but that Kyle's mother, Sharon, had kept B.C. for a few hours at a time.

         Appellee stated that when she and appellant were divorced in 2012, they felt it was better for both parents to have more regular contact with B.C. due to his young age. She said that she owns a home in Little Rock, but that she pays mortgage to Kyle's parents. She stated that she wanted to relocate to Houston so that B.C. would not have to rotate between so many homes. She testified that in two years they would either be in the Houston area or back in Arkansas. Appellee said that she would not have been able to keep her job at UAMS even if she was not allowed to relocate because she would be traveling back and forth between Houston and Little Rock. She stated that she believed it was in B.C.'s best interest that she be allowed to relocate. She said that Kyle could be making about $200, 000 as a general surgeon right now but that the fellowship would allow him to make double that amount. She admitted that one reason she wanted to relocate was because appellant said that he could not pay for B.C.'s college but that Kyle was "willing to step in on that." She opined that appellant and B.C. had a "good relationship" but that it was not "exceptional."

         Kyle testified that he was a surgeon and that he was currently involved in a fellowship in trauma and critical care surgery in Houston. He stated that after his fellowship he could "pretty much work anywhere, but focus primarily on areas that are large enough to sustain a trauma population or a critical care population of patients to take care of." He said that he has known appellee for four years and that he has known B.C. for "probably six-months less" than he has known appellee. He described his relationship with B.C. as very good. He stated that he chose a residence based on its proximity to where B.C. would be attending school. He said that his parents lived in San Antonio and that B.C. "loves them very much." He said that B.C. being able to move to Houston had both positive and negative implications. Kyle stated that he once had a mortgage through his parents and that when he sold his home, he paid off the mortgage and transferred it to appellee's home. He said that he was renting a home in Houston because he was unsure of his permanency in Houston. He stated that B.C. had seen the home and the school he would be attending in Houston.

         On cross-examination, Kyle stated that he applied "broadly" for fellowships beginning as early as April 2015. He said that he was in a relationship with appellee when he was sending applications to various institutions. He admitted that he could not tell the court where he would be in two years because it all depended on the hiring process. He stated that he earned a salary of $50, 000 as a resident at UAMS and that his fellowship salary would be $65, 000, resulting in an eighteen-percent increase. Kyle stated that he would be able to afford the home he chose in Houston with his salary. He said that he was financially committed to the home for two years because he had signed a two-year lease.

         Jeannie Thompson, appellant's girlfriend's mother, testified that she considered B.C. one of her grandchildren. She stated that she met B.C. approximately two months after appellant started dating her daughter, Jessica, and that they had spent a lot of time together as a family since then. She opined that appellant placed spending time with B.C. at the top of his list. She also stated that B.C. got along well with Jessica's thirteen-year-old daughter, B.T.

         Appellant testified that the visitation schedule was changed to give B.C. more consistency during the school week. He stated that the communication between him and appellee had decreased since appellee filed her petition. He said that when he and appellee first were divorced, they would spend at least the mornings of the major holidays together doing things as a family. Appellant stated that he worked next door to B.C.'s school, which allowed him "additional opportunities" to see B.C. He said that he began keeping up with the times he was actually able to see and spend time with B.C. According to his table, between August 2014-December 2014, he was able to see and spend time with B.C. sixty-one percent of the time. In 2015, appellant was able to see and spend time with B.C. sixty-three percent of the time.[4] And he was able to see and spend time with B.C. sixty-five percent of the time between January 2016-May 2016. He stated that he was present at ninety percent of B.C.'s practices (baseball and/or soccer). He presented the court with milestone photographs, including when B.C. was born, yearly first-day-of-school photos, and holidays. He testified that his parents resided in Little Rock and that they had a great relationship with B.C. He stated that his sister and her family also lived nearby and that B.C. was close to them. He said that he participated as much as he could at B.C.'s school activities before appellee filed her petition, but that since that time, he tries not to miss any opportunity to spend time with B.C.

         Appellant admitted that there was a time that he was "nickel-and-diming" appellee, but he stated that it had stopped. He also admitted that appellee had purchased uniforms for his house, and he said that he was "very much appreciative." He stated that he did not realize it was "such an issue for her." He said that he and appellee jointly decided that B.C. should attend Christ the King, but that he was never asked or told that he would be responsible for half of the tuition. He stated that he assumed some of the child-support payments were going toward the school's tuition. He testified that he packed lunches for B.C. everyday. He stated that he filed the motion for joint custody because he wanted the court to adopt the practices he and appellee had lived by for the past two years. He said that he was not trying to take custody of B.C. away from appellee, but that he wanted appellee's petition for relocation to be denied. He stated that he was concerned about the mental and academic strain relocation would place on B.C. Appellant testified that he did not believe appellee would move if she was not allowed to take B.C. with her.

         On cross-examination, appellant stated that he wanted to keep the visitation arrangement he and appellee currently had. He testified that he was awarded joint legal custody in the decree based on the parties' agreement. He also said that they agreed that appellee should be the primary physical custodian. Appellant testified that to him, joint legal custody meant that he had every legal right to B.C. as appellee had and that they would have an equal amount of time with B.C. He testified that it was explained to him at the time of divorce that appellee would be the primary physical custodian because she "had one more day a week" than he had with B.C. He said that he understood that "if there was an argument that [they] couldn't settle, that [appellee] got the last vote" as the primary physical custodian. However, he stated that this did not mean relocation. Appellant reiterated that he believed that his child support was being used to help pay for tuition at Christ the King. He stated that he purchased several sets of uniforms for B.C. to have at his house in addition to those purchased by appellee. He opined that he had met all of the responsibilities associated with having B.C. He stated that he was opposed to B.C. relocating with appellee because relocation would prevent appellant from maintaining the same "loving relationship" he currently shared with B.C.

         The court entered an order on August 4, 2016, finding that appellee's relocation was controlled by Hollandsworth, [5] not Singletary v. Singletary.[6] According to the court, it was unclear whether the parties had joint custody as contemplated by Singletary, [7] or if one party enjoyed sole or primary custody as contemplated by Hollandsworth.[8] The order stated in pertinent part:

23. As noted above, the parties' Agreement states "wife will have primary physical custody of the minor child, subject to the reasonable and liberal visitation with husband as set out below in this Agreement. The parties will share joint, legal custody." The Agreement fails, however, to define the meaning of primary physical custody.
24. In both Singletary and Jones courts were confronted with similar situations where language was ambiguous. Singletary, 2013 Ark. 506 at 9; Jones, 2015 Ark.App. 468 at 10. In both cases, the court looked to the contract between the parties in its entirety, the testimony of ...

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