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Cooper v. Kalkwarf

Supreme Court of Arkansas

November 30, 2017



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

          D. Paul Petty, for appellee.

          COURTNEY HUDSON GOODSON, Associate Justice

         Appellant Nathan Cooper appeals the Pulaski County Circuit Court's order granting appellee Shannon Kalkwarf's petition to relocate with the parties' minor son. For reversal, appellant argues that the circuit court erred in applying the presumption in favor of relocation as set out in Hollandsworth v. Knyzewski, 353 Ark. 470, 109 S.W.3d 653 (2003). We vacate the court of appeals' opinion, and we reverse and remand.

         The parties were married on July 8, 2006. At the time of their divorce on July 9, 2012, they had one minor son, B.C. (DOB 5/31/09). The parties executed a written custody, visitation, and property-settlement agreement that was incorporated, but not merged, into the divorce decree. With regard to custody of B.C., the agreement stated that the parties were to share "joint legal custody" but that appellee would have "primary physical custody of the minor child, subject to the reasonable and liberal visitation" of appellant. The agreement failed to define either term. The agreement further provided that appellant would have visitation with B.C. "a minimum of three nights out of every seven days with two days being consecutive." Holiday visitation alternated between the parties each year, and both parties were also granted "two non-consecutive weeks of vacation visitation during the summer." In addition, each parent agreed to contact the other parent for overnight childcare before he or she sought child care from a non-relative third party. The agreement stated that neither party was allowed to remove the child from the state without the express written consent of the other party or a court order authorizing the removal. Appellant was to pay child support of $470 a month based on his monthly income of $2, 600. Appellee was required to continue to maintain health insurance coverage for B.C., and the parties were to equally divide any noncovered medical, dental, orthodontic, or prescription-drug expenses.

         Appellee remarried in December 2015, and on January 15, 2016, she filed a petition for modification of custody. Appellee alleged that her husband had accepted a fellowship in trauma surgery in Houston and that it would be in B.C.'s best interest for her to be permitted to relocate with the child. Appellant filed a response to the petition on February 23, 2016, asserting that despite the language of the decree, the parties had shared joint custody of B.C. and that appellee should not be entitled to a presumption in favor of relocation. Appellant admitted that there had been a material change in circumstances caused by appellee's desire to relocate, but he denied that it was in B.C.'s best interest for the petition to be granted.

          On June 3, 2016, appellant filed a motion for joint custody, alleging that there had been a material change in circumstances since the entry of the divorce decree warranting a modification of the custodial arrangement and visitation schedule. He asserted that the parties spent equal time with B.C. and that he had almost daily contact with the child. Thus, he indicated that it was in B.C.'s best interest for both of his parents to remain in Little Rock and continue with the joint-custodial relationship that the parties had enjoyed since the divorce. He requested that the decree be modified to reflect the parties' practice, that appellee's petition for relocation be denied, and that a joint-custody award be entered. Appellee filed a response to appellant's motion generally denying the allegations.

         A relocation-and-custody hearing was held on July 11, 2016. Appellee testified that she had filed her petition requesting to relocate with the parties' son because her new husband, Kyle Kalkwarf, had accepted a fellowship in trauma surgery in Houston that would enable him to double his salary from $200, 000 to $400, 000. Appellee stated that, following the fellowship, there was a possibility that the family would return to Little Rock. She testified that they had found a rental home within walking distance of an elementary school that was ranked as one of the top ten public schools in Texas. Appellee indicated that she was a nurse practitioner and that she had taught at the College of Nursing at the University of Arkansas Medical School until May 2016. She stated that she had been offered a similar position in Houston with a higher salary and that she would also be able to pursue a doctoral degree. Appellee testified that, although B.C. had no extended family in Texas, Kyle's parents lived in San Antonio, and B.C. had a close relationship with them. Appellee also indicated that Kyle's parents had started a college fund for B.C. and had promised to match any future contributions made by her and Kyle. Appellee admitted that the majority of B.C.'s extended family lived in Arkansas, including both sets of grandparents, with whom B.C. had a very close relationship.

         Appellee testified that she was named as the primary physical custodian in the divorce decree and that the parties' conduct since then had been consistent with the decree. Although appellee had custody of B.C. for four nights each week while appellant had custody for three nights under the terms of the decree, appellee stated that they had modified this arrangement to a 5-5-1-3 schedule to provide more stability during the school week. Appellee testified that under this revised schedule, she still had custody of B.C. for eight days out of every fourteen-day period, while appellant had custody for six days. However, appellee stated that appellant had also asked her to keep B.C. on days when he was supposed to have custody. According to the calendar she had kept since June 2014, appellee indicated that she had custody of B.C. approximately sixty percent of the time.

         Appellee indicated that the parties had a good relationship when it came to coparenting, although there had been a few issues. For instance, appellant had not reimbursed appellee for his half of B.C.'s medical expenses that were not covered by insurance, and he had never contributed to B.C.'s private-school tuition. Appellee further testified that she had been responsible for buying B.C.'s clothing and school uniforms, although she admitted that appellant had recently bought several sets of uniforms. Appellee stated that appellant had rarely gone to B.C.'s medical appointments unless she specifically requested that he accompany them. Appellee also testified that appellant had been very condescending and rude in some of their prior communications.

          Appellee testified that, despite her issues with appellant, he is a good father, and it is very important for B.C. to continue to have appellant in his life. She proposed a schedule whereby appellant would come to Houston one weekend each month to visit B.C., and she would pay for herself and B.C. to fly to Little Rock one weekend per month. Appellee also indicated that appellant could have one week with B.C. at Christmas and six weeks in the summer. She admitted that this would reduce appellant's visitation from 156 days a year to 110. However, appellee testified that B.C. and Kyle also have an exceptional relationship and that it is in B.C.'s best interest to relocate with them.

         Kyle testified that he has a very loving relationship with B.C. and that they participate in many activities together. According to Kyle, the relocation presents several advantages for B.C., such as a better school and more opportunities for sports and other hobbies. Kyle testified that, after his two-year fellowship, he would most likely choose a trauma-surgeon position in Little Rock, San Antonio, or Houston.

         Jeannie Thompson, the mother of appellant's girlfriend, testified on behalf of appellant. Thompson stated that appellant and her daughter, Jessica, had been dating for more than one year and that she considers B.C. one of her grandchildren. According to Thompson, appellant is very affectionate and supportive of B.C. and "puts him at the top of his list." Thompson further stated that B.C. and Jessica's thirteen-year-old daughter adore each other.

         Appellant testified that B.C. does well with the parties' current 5-5-1-3 visitation schedule. Appellant indicated that, under the terms of the divorce decree, he was allowed only two consecutive days with B.C. each week, so he typically had the child each weekend and for one additional night during the week. However, appellant stated that the parties altered the visitation schedule after B.C. started school to provide more consistency. Appellant testified that he has a good relationship with appellee, even though he admitted that he had said some things that he regretted and that he had "nickel and dimed" her in the past. He indicated that, especially right after their divorce, he and appellee had "an open door policy" and had often spent holidays together with B.C. However, appellant stated that their communication with each other had decreased since appellee had filed her petition to relocate.

         Appellant stated that he worked next door to B.C.'s school and that this afforded him additional opportunities to see his son. He introduced a calendar in which he had marked the days that he had seen B.C., and, according to appellant's calculations, he had spent time with his son on 60%-65% of the days between August 2014 and May 2016. Appellant testified that he was very concerned about not being able to maintain this type of relationship with B.C. if B.C. were to relocate with appellee. He stated that he was not trying to take custody away from appellee. Instead, he wanted the circuit court to deny appellee's request to relocate with B.C. and for the parties to continue their current custody arrangement. Appellant further stated that B.C. has a close relationship with his parents and with his aunt, uncle, and cousins who live in Little Rock. Although appellant admitted that he had become a more involved father since appellee filed the petition to relocate, he indicated that this was because he wanted to maximize his opportunities with B.C. When the circuit court questioned appellant as to how it would affect B.C. if the court denied appellee's petition to relocate, appellant testified that appellee had indicated that she would not choose to move in that event.

         On cross-examination, appellant stated that the parties had agreed in the divorce decree to share joint legal custody, with appellee being the primary physical custodian. Appellant testified that he understood joint legal custody to mean that he had the same legal rights to B.C. as appellee. He indicated that appellee was named as primary physical custodian in the decree because she had custody for one more day a week than he did. Appellant further testified that appellee's having primary physical custody meant that if there was a disagreement that the parties could not settle, then she would have the last vote. However, he stated that this did not include the issue of relocation.

         Following the hearing, the circuit court entered an order on August 4, 2016, granting appellee's petition to modify custody and to relocate with B.C. and denying appellant's motion for joint custody. The court stated that one of the primary issues to be resolved was whether the parties shared joint custody, such that the relocation request would be controlled by Singletary v. Singletary, 2013 Ark. 506, 431 S.W.3d 234, or whether one of the parties had sole or primary custody and was entitled to the presumption set forth in Hollandsworth, supra. The circuit court made the following findings in its order:

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, 431 S.W.3d 234; Jones, 2015 Ark.App. 468 at 10, 469 S.W.3d 402. In both cases, the court looked to the contract between the parties in its entirety, the testimony ...

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