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Webster v. Jones

Court of Appeals of Arkansas, Division II

September 12, 2018

JENNIFER WEBSTER APPELLANT
v.
SHONN JONES APPELLEE

          APPEAL FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04DR-15-1464] HONORABLE JOHN R. SCOTT, JUDGE

          Pinnacle Law Group, by: Matthew A. Kezhaya, for appellant.

          Freeman Law Firm, PLC, by: Mark J. Freeman, for appellee.

          BRANDON J. HARRISON, JUDGE.

         Jennifer Webster (formerly Jones) appeals the circuit court's modification of visitation. She argues that the circuit court erred in (1) assessing all costs of travel to her, (2) awarding her ex-husband, Shonn Jones, twice-monthly visitation in addition to the proposed visitation schedule, and (3) granting Jones the right to require visitation on only one week's notice. We reverse and remand.

         Webster and Jones were married in October 2005 and separated in July 2015. On 4 September 2015, Jones filed a complaint for separate maintenance and requested a hearing on the issues of payment of marital debts, visitation, and support of the parties' two children, five-year-old J.J. and nine-month-old S.J. The complaint also noted that Webster was pregnant with a due date in February 2016.

         In January 2016, Jones filed an amended complaint and requested an absolute divorce from Webster. In February 2016, Webster counterclaimed for divorce and requested custody of the children, including one-month-old P.J. In June 2016, she requested an order of temporary support. The circuit court convened a hearing in September 2016, at which Webster testified that she had not received any child support since the commencement of the case. She testified that she was employed with Advocare as a salesperson, that her income was $843.17 biweekly, and that her total gross income for 2016 was $20, 235.91. She also claimed expenses of $3, 874.24 a month.

         Jones testified that he was an independent contractor for Inferno Mixed Martial Arts and had a gross income of $700 a month. He also said that he had been employed at Northwest Arkansas Storage until 21 September 2016. He testified that he paid $650 a month in rent and that he provided health and dental insurance for himself, Webster, and the children. He also paid for life insurance policies for himself and Webster.

         The circuit court denied Webster's request for temporary support, finding "no apparent emergency meriting the award of temporary spousal support or temporary child support." The court also noted "substantial confusion regarding the income and expenses of the parties."

         In December 2016, the circuit court granted Jones's complaint for divorce and incorporated into its order a child-custody and property-settlement agreement executed by the parties. Pursuant to that agreement, Webster was awarded primary custody of the children, and Jones was awarded the court's standard schedule of visitation. Jones was also ordered to pay $700 a month for child support.

         Six months later, in June 2017, Webster moved to modify visitation. In the motion, she explained that she was engaged to an orthodontist with an established practice in Las Vegas, Nevada, and that she wished to relocate there with the children. Webster requested an immediate temporary hearing so she could have the children in Las Vegas before school began in August and could plan her wedding that summer to include the children. She indicated that she was willing to pay for the children's travel to and from Arkansas.

         The circuit court convened a hearing on 11 July 2017. Webster testified that she wished to move to Las Vegas to be with her fiancé and to work in his orthodontic practice as the manager. She said that it was in the children's best interest to move with her because she is their primary caregiver and she has a strong relationship with them. Webster explained that she had already researched the school that the oldest child would attend and that the two younger children would attend a pre-K school located next to the orthodontic practice. She also stated that she wanted the children's relationship with their father to continue and that "we are prepared to pay for travel so that that burden is not on him." She proposed a visitation schedule and said that if Jones wants to visit any time outside the schedule "he is welcome to come and do so." Under the proposed visitation schedule, Jones would have the children every year for spring break, and the parties would alternate Thanksgiving break, with Jones having odd years and Webster having even years. The parties would also evenly split the Christmas holiday and summer break. The proposed schedule contained no provision for monthly visitation.

         Jones testified that he has exercised weekly visitation with his children and that he does everything he can to spend time with them. He also said that the children have close relationships with other family in Arkansas, including other brothers and sisters, and that "there's just so much that they have here that they would be losing if they were to leave." Jones asked "that this not happen in this manner or that I get granted sufficient visitation with them to continue our relationship for the betterment of the children."

         During closing argument, Webster's counsel argued that Jones had failed to rebut the presumption favoring relocation by the custodial parent in Hollandsworth v. Knyzewski, 353 Ark. 470, 109 S.W.3d 653 (2003), and reiterated that Webster "is willing to pay for the travel for Mr. Jones to come out there for the children-her to bring the children here." In its oral ruling, the court agreed that Hollandsworth controlled and that Jones did not rebut the presumption in favor of allowing relocation. The court's written order, entered on 29 August 2017, ...


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