PARRISH A. DARE, APPELLANT
SCOTT A. FROST, APPELLEE
FROM THE SALINE COUNTY CIRCUIT COURT [63DR-16-211] HONORABLE
BOBBY D. MCCALLISTER, JUDGE
Lancaster Law Firm, PLLC, by: Clinton W. Lancaster, for
& Co., PLLC, by: Tim J. Cullen, for appellee.
Goodson and Hart, JJ., join.
AFFIRMED; COURT OF APPEALS OPINION VACATED.
F. WYNNE, Associate Justice.
Dare appeals from an order of the Saline County Circuit Court
modifying the visitation awarded to appellee Scott Frost and
denying her petition to modify the amount Frost pays in child
support. She argues that the circuit court erred in finding
that there had been a material change in circumstances that
justified modifying Frost's visitation with the
parties' child. She also argues that the trial court
erred in deciding not to include the increase in the value of
Frost's stock portfolio in the calculation of his
child-support obligation and deciding not to impute
additional income to Frost. We affirm.
the parties lived in Virginia, they were involved in a
relationship that produced one child, R.D. The parties were
never married. A Virginia court ordered Frost to pay child
support in the amount of $400 per month. The court awarded
Frost "liberal visitation" and set a visitation
schedule that alternated holidays and gave Frost two weeks in
the summer with R.D. After Dare relocated to Arkansas with
the child, Frost typically kept the child for three to four
weeks during the summer. Frost also began paying $425 per
month in child support.
2015, Dare began asking Frost to pay additional child
support; he declined. During this same period, Dare
restricted Frost's visitation to that provided for in the
Virginia court order. In February 2016, Frost petitioned to
register the Virginia orders in the Saline County Circuit
Court. He contemporaneously filed a motion for modification
in which he alleged that there had been a change in
Dare's "willingness to co-parent" that
constituted a material change in circumstances justifying an
award of additional visitation with R.D. Dare filed a
counterclaim in which she requested a modification of
Frost's child-support obligation to reflect his current
income. The circuit court held hearings on the visitation and
child-support issues. Regarding child support, Dare argued
that the growth of Frost's stock portfolio should be
considered in the calculation of his child-support
obligation. Dare also contended that the trial court should
impute Frost's income commensurate with his lifestyle.
The circuit court subsequently entered an order in which it
found that a material change in circumstances had occurred
and modified Frost's visitation, increasing summer
visitation to four weeks each summer and setting out a
schedule for holiday visitation. The circuit court also found
that there was insufficient evidence to impute income beyond
that reported on his affidavit of financial means and ordered
him to pay child support in the amount of $213.00 every two
weeks based on his reported bi-weekly income of $1, 174.46.
appealed to our court of appeals, which affirmed on the
finding of material change in circumstances and reversed and
remanded on the issue of child support, with instructions for
the circuit court to consider the gains in Frost's stock
portfolio as income for child support purposes. Dare v.
Frost, 2017 Ark.App. 325, 522 S.W.3d 146. The parties
filed competing petitions for review with this court, with
Dare seeking review of the portion of the circuit court order
on the issue of visitation that was affirmed and Frost
seeking review of the court of appeals' decision to
reverse and remand on the issue of child support. Dare's
petition was denied; Frost's was granted. Because, upon
granting a petition for review, we consider the appeal as
though it were initially filed with this court, Powell v.
Lane, 375 Ark. 178, 181, 289 S.W.3d 440, 442, all issues
raised in the appeal are currently before us.
first argument on appeal is that the trial court erred in
finding that Frost had proved a material change in
circumstances sufficient to warrant a modification of the
existing visitation order. In domestic relations cases, we
review the evidence de novo and will not reverse the circuit
court's findings unless they are clearly erroneous.
Brown v. Brown, 2012 Ark. 89, 387 S.W.3d 159. We
also give special deference to the circuit court's
superior position in evaluating the witnesses, their
testimony, and the child's best interest. Id.
Because a circuit court maintains continuing jurisdiction
over visitation, it may modify or vacate a prior visitation
order when it becomes aware of a material change in
circumstances since the previous order. Id. The
party seeking modification has the burden of demonstrating
such a material change in circumstances. Id.
Regarding visitation, the primary consideration is the best
interest of the child. Id. Important factors for the
court to consider in determining reasonable visitation are
the wishes of the child, the capacity of the party desiring
visitation to supervise and care for the child, problems of
transportation and prior conduct in abusing visitation, the
work schedule or stability of the parties, and the
relationship with siblings and other relatives. Id.
We have held that fixing visitation rights is a matter that
lies within the sound discretion of the circuit court.
order modifying visitation, the circuit court found that Dare
had exposed R.D. to inappropriate circumstances and had been
negative toward Frost to such a degree that it caused strain
between R.D. and Frost. The testimony at the hearing on
visitation was that at some point in 2011, the parties had
agreed to modify the visitation schedule to allow Frost more
time with R.D. during the summer. He was typically given
three to four weeks instead of the two specified in the
Virginia order. During his testimony, Frost read from an
email sent to him by Dare in which she stated that if he did
not pay more than was required by the child-support
guidelines, she would not do anything outside of the
visitation guidelines. Dare repeated that stance in her
testimony. Frost testified that in 2015, he was informed
that, instead of spending four weeks with him, R.D. would
spend two weeks in Virginia and two weeks with a friend of
Dare's in Texas. Frost also testified regarding a
Thanksgiving visitation when Dare sent R.D. to his home with
a mostly empty suitcase. Dare testified that this was
intended as a message to Frost that he was not taking
responsibility for R.D.'s care while she was with him.
Frost further testified that Dare told him that she allowed
R.D. to read their correspondence regarding child support,
which included statements by Dare that he was not doing
enough for R.D. Frost stated that this resulted in different
behavior toward him by R.D. Frost stated that he felt like
Dare pushed him out and made R.D. feel like it was acceptable
to minimize his part in her life.
testimony at the hearing was sufficient to establish that the
parties' ability to cooperate regarding R.D.'s
visitation had deteriorated since the Virginia visitation
order was entered. The parties had voluntarily modified the
visitation order, presumably because this was in R.D.'s
best interest. Dare unilaterally changed the visitation back
to that specified in the Virginia order, and there was
evidence from which the circuit court could reasonably
conclude that this was done not because it was in R.D.'s
best interest but because of issues Dare was having with
Frost, specifically her unhappiness with the amount of child
support he was paying. There was also testimony that
Dare's actions, which included showing R.D.
communications between the parties, affected the relationship
between Frost and R.D. While Dare naturally seeks to counter
this evidence, as stated above, we defer to the circuit court
on issues regarding the credibility of the witnesses and the
weight to be given to their testimony. See Brown,
2012 Ark. 89, 387 S.W.3d 159. Under these circumstances, we
conclude that the change in the parties' interactions
with each other constitute a material change in circumstances
sufficient to warrant a modification of
visitation. We affirm the circuit court's order
modifying the visitation schedule.