FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04DR-12-1368]
HONORABLE DOUG SCHRANTZ, JUDGE
Law Firm, by: Matt Bishop, for appellant.
Law Firm, by: Johnnie Emberton Rhoads, for appellee.
LARRYD. VAUGHT, Judge.
Angie Hewett appeals the Benton County Circuit Court's
order modifying custody of G.H., her child with appellee,
ex-husband Kelly Hewett. The court's order modified the
previous custody arrangement, under which Angie had primary
custody, and awarded joint custody. We reverse and remand to
reinstate the previous custody order.
and Angie Hewett were divorced on October 29, 2012. Based on
an agreement of the parties, the court awarded Angie primary
custody of the couple's son, who was five years old at
the time, and awarded Kelly standard visitation. The record
reflects that the parties have had significant difficulty
communicating since the divorce and that they have
continually argued. In 2013, Angie obtained an ex parte order
of protection against Kelly, which was dismissed after a full
hearing and that which resulted in the court increasing
Kelly's visitation. In August 2016, Angie obtained an ex
parte order terminating Kelly's visitation, stemming from
an incident on July 31, 2016, in which Kelly's current
wife, April Hewett, called Angie and reported that April and
Kelly had gotten into an argument, Kelly had been drinking,
the police had been called, and Kelly had left with G.H. to
go to a hotel room. Angie retrieved G.H. from the hotel room
and refused to allow Kelly to have further visitation. The
court entered an ex parte order suspending Kelly's
visitation but subsequently vacated the order and reinstated
visitation after a full hearing.
then filed a motion for contempt against Angie and a
counterclaim for modification of custody. He argued that
Angie had made derogatory statements about him, failed to
notify him of G.H.'s baptism, refused to provide him with
extracurricular equipment he purchased for G.H., was
disrespectful to Kelly via text and in the presence of G.H.,
and was attempting to alienate G.H. from Kelly. The court
appointed Acacia Stinnet as attorney ad litem for G.H.
temporary hearing, the court found that the parties had not
been able to get along since the time of the divorce and
found no reason to restrict Kelly's visitation. Angie
amended her motion to include allegations that Kelly had been
excessively checking G.H. out of school and that Kelly had
failed to give Angie the right of first refusal when he
needed childcare for G.H., as required by the divorce decree.
final hearing revealed further evidence of antagonistic
behavior by both parties, including name-calling and an
inability to communicate with each other. The court issued an
order, filed on January 17, 2017, which found that there had
been a material change in circumstances warranting a change
of custody. While the court did not explicitly state how the
circumstances had changed, the only circumstances that the
court mentions in the order are the parties' inability to
get along or communicate civilly with each other. The court
found it was in G.H.'s best interest to award joint
custody, which it did. It ordered the parties to agree on all
decisions regarding the child, specifically stating that if
the parents could not agree on extracurricular activities
then G.H. would not be able to participate in such
activities. The court found both parties in contempt: Angie
for name-calling and Kelly for being under the influence of
alcohol in the presence of the child. Angie filed a timely notice
of appeal challenging the court's modification of
Arkansas Supreme Court has stated that "the primary
consideration in child-custody cases is the welfare and best
interest of the children; all other considerations are
secondary." Hamilton v. Barrett, 337 Ark. 460,
466, 989 S.W.2d 520, 523 (1999). Further, the court has
stated that "[a] judicial award of custody should not be
modified unless it is shown that there are changed conditions
that demonstrate that a modification of the decree is in the
best interest of the child, or when there is a showing of
facts affecting the best interest of the child that were
either not presented to the chancellor or were not known by
the chancellor at the time the original custody order was
entered." Jones v. Jones, 326 Ark. 481, 491,
931 S.W.2d 767, 772 (1996). "[C]hild custody is
determined by what is in the best interests of the child, and
it is not altered absent a material change in
circumstances." Id. at 487, 931 S.W.2d at 770.
"The party seeking modification of the child-custody
order has the burden of showing a material change in
circumstances." Id. at 491, 931 S.W.2d at 772.
Further, "[f]or a trial court to change the custody of
children, it must first determine that a material change in
circumstances has transpired from the time of the divorce
decree and, then, determine that a change in custody is in
the best interest of the child." Lewellyn v.
Lewellyn, 351 Ark. 346, 355, 93 S.W.3d 681, 686 (2002).
reviewing child-custody cases, we consider the evidence de
novo but will not reverse a trial court's findings unless
they are clearly erroneous or clearly against the
preponderance of the evidence. Lowder v. Gregory,
2014 Ark.App. 704, at 14, 451 S.W.3d 220, 229. We give due
deference to the superior position of the circuit court to
view and judge the credibility of the witnesses.
Id., 451 S.W.3d at 229. This deference is even
greater in cases involving child custody, as a heavier burden
is placed on the trial court judge to utilize to the fullest
extent its powers of perception in evaluating the witnesses,
their testimony, and the best interest of the children.
Id., 451 S.W.3d at 229. When the circuit court fails
to make findings of fact about a change in circumstances,
this court, under its de novo review, may nonetheless
conclude that there was sufficient evidence from which the
circuit court could have found a change in circumstances.
Campbell v. Campbell, 336 Ark. 379, 384, 985 S.W.2d
724, 727 (1999); Stamps v. Rawlins, 297 Ark. 370,
761 S.W.2d 933 (1988).
appeal, Angie argues that there was insufficient evidence of
a material change in circumstances warranting modification of
custody and that the award of joint custody was not in
G.H.'s best interest. We agree on both points, reverse
the court's order modifying custody, and remand for the
court to reinstate the former custody arrangement.
facilitate stability and continuity in the life of a child
and to discourage repeated litigation of the same issues,
custody can be modified only upon a showing of a material
change of circumstances. Stills v. Stills, 2010 Ark.
132, 361 S.W.3d 823. The court's order failed to
articulate the specific change in circumstances warranting
modification in this case. The only circumstances referenced
in the order were the parents' inability to communicate
civilly and work together to make parenting decisions. These
facts do not demonstrate a change; in the temporary order
filed September 21, 2016, the court found that "the
parties have a miserable relationship going back to the
divorce." The court had previously found in 2013 and
2014 that Angie's demeanor toward Kelly was unreasonable
and could negatively impact the child. Neither the evidence
presented at the hearing nor the court's final order
demonstrate that the parties' bickering and name-calling
was new or had significantly worsened. We agree with
Angie's argument that this case is akin to the
"scattering of petty complaints" we rejected in
Byrd v. Vanderpool, 104 Ark.App. 239, 244, 290
S.W.3d 610, 613 (2009). Based on the evidence presented below
and the court's previous findings, we see no basis for
determining that there had been a material change, which is
required before modification of custody can be considered.
even if we assumed, for the sake of argument, that the
parties' inability to get along and their overt hostility
toward each other amounted to a material change in
circumstances, it clearly counsels against affirming on the
second point, whether joint custody was in G.H.'s best
interest. In the recent case of Li v. Ding, 2017
Ark.App. 244, 519 S.W.3d 738, we reversed and remanded an
award of ...