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Buskirk v. Buskirk

Court of Appeals of Arkansas, Division IV

September 19, 2018

JASON BUSKIRK APPELLANT
v.
DECEMBER BUSKIRK (NOW MELTON) APPELLEE

          APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. 72DR-13-337-7] HONORABLE JOANNA TAYLOR, JUDGE

          Cullen & Co., PLLC, by: Tim Cullen, for appellant.

          Keith, Miller, Butler, Schneider & Pawlik, PLLC, by: Mason L. Boling, for appellee.

          RAYMOND R. ABRAMSON, JUDGE

         Jason Buskirk appeals the Washington County Circuit Court's order reinstating primary custody of the parties' daughter, L.B., to December Buskirk (Melton).[1] On appeal, Jason argues that the circuit court erred in reinstating primary custody of L.B. to December. We affirm.

         Jason and December were married on July 28, 2007. While married, they had one child together, their daughter, L.B. They divorced on May 8, 2013. Upon divorce, December received primary custody of L.B., and Jason received standard visitation. Both parties subsequently remarried. Jason resides in Nixa, Missouri, with his current wife, Elizabeth Dudash-Buskirk, and their minor son, D.B. In 2014, December married Howard Christopher Melton, and they, along with L.B., lived in Farmington, Arkansas.

         On September 12, 2016, law enforcement officers executed a search warrant at December and Howard's residence. During this time, Howard was under suspicion for possession of child pornography. Law enforcement officers arrested Howard on January 25, 2017, and he pled guilty in March 2017. After Howard's indictment and arrest, December and Howard separated and eventually divorced.

         After learning about Howard's indictment, Jason filed a motion for modification of custody on February 13, 2017. He alleged that December had violated the terms of the divorce decree by failing to inform him about Howard's indictment and its impact on L.B.'s welfare. The circuit court held a hearing on March 31, and an order was entered on April 3, awarding temporary custody of L.B. to Jason and standard visitation to December. Afterward, an attorney ad litem was appointed to represent L.B.

         On August 14, the circuit court held a subsequent hearing, heard additional testimony, and admitted other evidence. The circuit court ruled from the bench, finding that there had been several material changes in circumstances. Additionally, the circuit court found that it would be in L.B.'s best interest to reinstate December's primary custody. The circuit court entered its written order on September 11, 2017.

         Jason timely appealed the circuit court's order on October 10. On appeal, Jason argues (1) that the circuit court misapplied the burden of proof that is required in custody- modification cases and (2) that, alternatively, the circuit court's order does not support the conclusion that another change of custody was in L.B.'s best interest.

         On appeal in custody matters, this court considers the evidence de novo and does not reverse unless the circuit court's findings of fact are clearly erroneous. Hodge v. Hodge, 97 Ark.App. 217, 219, 245 S.W.3d 695, 697 (2006). A finding is clearly erroneous when, although there is evidence to support it, the court is left with a definite and firm conviction that the circuit court made a mistake. Id. Due deference is given to the circuit court's superior position to judge the credibility of the witnesses. Id. The Arkansas Supreme Court has held that there is no other case in which the superior position, ability, and opportunity of the circuit court to observe the parties carry a greater weight than one involving the custody of minor children. Taylor v. Taylor, 345 Ark. 300, 304, 47 S.W.3d 222, 224 (2001).

         The best interest of the children is the polestar in every child-custody case; all other considerations are secondary. Id. Factors a court may consider in determining what is in the best interest of the child include the psychological relationship between the parents and the child, the need for stability and continuity in the child's relationship with the parents and siblings, the past conduct of the parents toward the child, and the reasonable preference of a child. Rector v. Rector, 58 Ark.App. 132, 947 S.W.2d 389 (1997).

         For custody-modification cases, courts impose more stringent standards than they do for initial determinations of custody in order to promote stability and continuity in the life of the child and to discourage the repeated litigation of the same issues. Geren Williams v. Geren, 2015 Ark.App. 197, at 10, 458 S.W.3d 759, 766. The party seeking to modify the custody order has the burden of showing a material change in circumstances. Id. In order to change custody, the circuit court must first determine that a material change in circumstances has occurred since the last custody order; if that threshold requirement is met, it must then determine who should have custody, with the sole consideration being the best interest of the children. Id. Determining whether there has been a change of circumstances requires a full consideration of the circumstances that existed when the last custody order was entered in comparison to the circumstances at the time the change of custody is considered. Id. at 10-11, 458 S.W.3d at 766.

         We first address Jason's argument that the circuit court made an error of law by misapplying the burden of proof that is required for custody-modification. Jason argues that the issue involving the best interest of L.B. was the subject of two inconsistent orders and that the "temporary order" granting Jason temporary custody in April 2017 was really a permanent or final order. He argues that because the "temporary order" was final, December should have had the burden of showing a material change in circumstances at the August 2017 hearing before the circuit court reinstated custody of L.B. to her. He further claims that the circuit court made him prove his case twice.

         As December points out, it appears that Jason did not raise this issue below, and if he did, he failed to obtain a ruling. The circuit court did not rule on this issue in either its oral ruling from the bench in August 2017 or in its written order entered in September 2017. "A party is bound by the scope and nature of the arguments made at trial." Rice v. Rice, 2016 Ark.App. 575, at 8, 508 S.W.3d 80, 86. In Rice, this court further stated, "Because this allegation of error was not raised and decided below, we are precluded from ...


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