FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. 72DR-13-337-7]
HONORABLE JOANNA TAYLOR, JUDGE
& Co., PLLC, by: Tim Cullen, for appellant.
Miller, Butler, Schneider & Pawlik, PLLC, by: Mason L.
Boling, for appellee.
RAYMOND R. ABRAMSON, JUDGE
Buskirk appeals the Washington County Circuit Court's
order reinstating primary custody of the parties'
daughter, L.B., to December Buskirk (Melton). On appeal, Jason
argues that the circuit court erred in reinstating primary
custody of L.B. to December. We affirm.
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.
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.
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.
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,
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.
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).
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).
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.
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.
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 ...