FROM THE PULASKI COUNTY CIRCUIT COURT, FOURTEENTH DIVISION
[NO. 60DR-12-954] HONORABLE H. VANN SMITH, JUDGE REVERSED AND
REMANDED; COURT OF APPEALS' OPINION VACATED.
LaCerra, Dickson, Hoover & Roger, PLLC, by: Lauren White
Hoover, for appellant.
Paul Petty, for appellee.
COURTNEY HUDSON GOODSON, Associate Justice
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.
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.
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.
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.
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.
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.
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
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.
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
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.
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.
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.
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.
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 ...