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Killingsworth v. Dittmar

Court of Appeals of Arkansas, Division I

May 9, 2018



          R.T. Starken, for appellant.

          Murphy, Thompson, Arnold, Skinner & Castleberry, by: Tom Thompson and Kenneth P. "Casey" Castleberry, for appellee.

          BART F. VIRDEN, JUDGE.

         Appellant Nicole Killingsworth (formerly Dittmar) appeals from the Sharp County Circuit Court's order awarding custody of her children, M.D. and A.D., to their father, appellee Jeremiah ("J.D.") Dittmar. Nicole argues that (1) the trial court erred in finding that a joint-custody agreement existed and concluding that her relocation was a material change in circumstances and (2) alternatively, even if a joint-custody agreement existed, it was in the children's best interest to remain in her primary physical custody. We affirm.

         I. Procedural History

         Nicole and J.D. divorced on July 6, 2015. A custody agreement was incorporated, but not merged, into the divorce decree, stating in part,

The Husband and Wife are to have joint custody of the minor children with the Wife being the primary residential custodian. The Husband shall have reasonable visitation at any time the parties agree. The Husband shall have visitation every week from Thursday at 6:00 p.m. until Sunday at 6:00 p.m. and holidays shall be divided pursuant to the Court's standard visitation schedule attached hereto as Exhibit Number 1. . . . .
(b) The parties shall abide by the Court's Proper Conduct rules as attached hereto as Exhibit Number 2.

         Exhibit number 2, entitled "Proper Conduct of Divorced or Separated Parents, " includes the following rule: "If you are divorced, DO NOT expose your children to any person with whom you may be living unless you are married to that person. Proper and acceptable contact and association with other persons after divorce is not prohibited under this rule."

         On July 21, 2016, Nicole filed a motion to modify visitation and child support in which she asserted that she had moved from Cave City, Arkansas, to Viola, Arkansas, and that she had enrolled the children in school in Viola, where she now works. Nicole alleged that a material change in circumstances had occurred because she was no longer employed at White River Medical Center (WRMC) where she had been required to work weekends. Nicole alleged that she now works Monday through Friday and that the visitation schedule should be modified such that she will have the children every other weekend. Nicole further alleged that there was also a material change in circumstances regarding her need for support given that the parties now live a greater distance apart.

         J.D. responded and alleged that the parties were true joint custodians and that Nicole had unilaterally moved the children to Viola to live with her boyfriend. J.D. alleged that there was no material change in circumstances but that, if the trial court determined that there was a material change, custody of the children should be awarded to him.

         Nicole amended her motion to add that she is the primary residential custodian pursuant to the divorce decree and that the parties did not share true joint custody.

         J.D. responded to the amended motion, alleging that the parties had agreed to joint custody in the divorce decree. J.D. further alleged that the children had been enrolled in the Cave City School District and that, without notice or permission, Nicole had transferred the children to the Viola School District and had moved in with her boyfriend in violation of the proper conduct rules. J.D. counterclaimed that there had been a material change in circumstances warranting modification of the decree with an award of full custody to him.

         In answering J.D.'s counterclaim, Nicole clarified that she had moved in with her husband, Robby Killingsworth, who was previously her boyfriend. Nicole asserted the affirmative defense of unclean hands, alleging that J.D. had moved his then girlfriend Stephanie Johnson into his home three days after the parties had separated and that she had continued to reside there until she and J.D. were married. Nicole further alleged that she had abided by the terms of the divorce decree after her relocation, that nothing in the decree required that she give notice or seek permission from J.D. to move to a neighboring county, and that J.D. was not in a position to adequately care for the children during the week.

         II. Trial Testimony - January 25, 2017

         Amy Rucker, a speech pathologist at the Viola School District, testified that she had been working with A.D., who has a mild language impairment and dyslexia. She said that he had an IEP (individual education plan) for speech therapy but that testing requested by Nicole indicated that he also had dyslexia. Rucker testified that Nicole is "very interested" in A.D.'s education and that his stepfather attended meetings with Nicole and asked about A.D. when picking him up from school. She said that she had never had any contact with J.D. She testified that she was unaware of the services offered by the Cave City School District but that ...

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