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Vest v. Vest

Court of Appeals of Arkansas, Division III

October 18, 2017

ALICIA VEST (NOW BUFORD) APPELLANT
v.
CORY VEST APPELLEE

         APPEAL FROM THE FRANKLIN COUNTY CIRCUIT COURT, NORTHERN DISTRICT [NO. 24ODR-08-48] HONORABLE DENNIS CHARLES SUTTERFIELD, JUDGE.

          Kevin L. Hickey, for appellant.

          Aubrey L. Barr, for appellee.

          DAVID M. GLOVER, JUDGE.

         Alicia (Vest) Buford and Cory Vest were divorced by decree entered on September 16, 2008. Alicia was awarded custody of their two children, K.V. and C.V., in part because Cory was dealing with a serious alcohol problem. Both parties have subsequently remarried. Cory's successful efforts to overcome his alcohol problem have resulted in changes to his visitation over the years, giving him more, and unsupervised, time with the children. On March 11, 2015, Cory filed a motion to modify custody. Following a hearing, the trial court found a material change in circumstances had occurred, and it was in the children's best interests to change custody from Alicia to Cory. The order changing custody was originally entered August 18, 2016, and then amended by order entered September 19, 2016. This appeal followed. We affirm.

         The primary consideration in child-custody cases is the welfare and best interest of the children, and all other considerations are secondary. Earl v. Earl, 2015 Ark.App. 663, 476 S.W.3d 206. 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. Id. The party seeking modification of the custody order has the burden of demonstrating a material change in circumstances. Id. If that threshold requirement is met, the trial court must then determine who should have custody, with the sole consideration being the best interest of the children. Id. Generally, courts impose more stringent standards for modifications in custody than they do for initial determinations of custody because the courts want to promote stability and continuity in the children's lives and to discourage repeated litigation of the same issues. Id.

         When Alicia and Cory divorced in September 2008 and Alicia was awarded custody, K.V. was five years old and C.V. was three years old. At the time of the 2016 change-in-custody order, K.V. was thirteen and C.V. was almost eleven. There is no serious dispute that Cory currently has his alcoholism under control, so that was not a compelling issue in this case.

         K.V. was diagnosed with type 1 diabetes after her parents divorced. She testified she wanted to live at her dad's house because it was "easier" and "not as stressful." She explained she liked living with her mom, but it was more stressful because she had to take care of her diabetes by herself, and her mom would sometimes panic if anything went wrong or if they did not understand something. She said it scared her when her mom did that, and it made her think she had done something wrong. She stated it was different at her dad's house because he helped her with her diabetes; he did not panic if they did not understand something about it; he did not make her feel as if it were her fault; and if he could not figure out what to do, he would call the doctor and not make a big deal about it. She stated she feels safer at her dad's house, and she is much calmer and less nervous at her dad's house. She explained that her blood sugar "will do weird things" about two or three times a month; that it depends on whether she's nervous about something, like school tests, or if she's had big meals; that her mom panics and gets mad about it and explodes and yells and screams; and that it scares her when those situations arise. K.V. acknowledged her mom's "explosions" happened more often after her mom's sister, Julie, died, but it still happened sometimes, and it made her blood sugar spike and "made everything worse." She testified it was very important to her to live at her dad's house, and she was more comfortable and not scared there.

         K.V. explained the intricacies of monitoring her diabetes. She also testified she loves her brother and wants to be with him no matter what decision the trial court made. She acknowledged she would have to change schools if she moved to her dad's house; stated she was used to it because she had changed schools three times in four years; and reported she makes all As. She said she would feel more relaxed at her dad's house because the stress of the responsibility of her diabetes would not be all on her, and she would not have to worry so much.

         K.V. said the only downside she could think of if she moved to her dad's house was her mom's reaction; that her mom got really mad and withdrew from her when she was with her dad on weekends. She explained she was the one who pushed for a change of custody, but when she tells her mom she wants to live with her dad, her mom explodes, screaming and yelling and trying to make her feel guilty for wanting to live at his house; her mom sees it as a betrayal; her mom does not like it when she tries to talk about her visits with her dad; and her mom "talks ugly" about her dad. She said her dad's house is more open, and they let her talk about what she does at her mom's house. K.V. denied she was exaggerating things in order to go live with her dad. She acknowledged that both of her parents love her and that they were both trying to do what the doctor told them to do about her diabetes.

         C.V. also testified at the hearing, explaining he is in the fifth grade; he had gone to three schools and lived in at least three houses; he makes good grades; he leaves for school around 6:45 a.m. and is there until 4:00 or 4:30 in the afternoon while his mom finishes her work; he helps with chores at both his mom's and his dad's houses; he loves both of his parents and doesn't really have an opinion about where he wants to live; he doesn't want to hurt anyone's feelings and would be happy either place; and the most important thing to him was to stay where his sister is.

         Cory testified at length about K.V.'s diabetes diagnosis and the training they received to deal with it. He explained the routines they follow at his house to monitor and control her blood sugar and how he allows her to calculate her carbs and ratios but that he then double-checks her calculations and makes any necessary corrections. He stated they work on it together and K.V. seems to appreciate his involvement.

         Cory stated the first time K.V. asked him to seek a change in custody, he told her no but promised he would reconsider in six months if she still felt the same. He explained he wanted to make sure the reasons for a change were not superficial. He stated his biggest issue was K.V.'s health, and he had concerns about the children's schedules at Alicia's house because diabetes needs consistency and a schedule. He acknowledged that K.V.'s doctor had reported that her diabetes was being well controlled, but he still believed he could do a better job than Alicia in helping K.V. control her diabetes.

         Cory stated he and Alicia did not communicate well. He discussed his frustration that his requests for extra time with the children, backup supplies for K.V.'s diabetic needs, and requests to be notified about school and extracurricular activities had been ignored by Alicia. He candidly acknowledged he could do a better job of communicating with Alicia, ...


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