FROM THE PULASKI COUNTY CIRCUIT COURT, SEVENTEENTH DIVISION
[NO. 60DR-12-3972] HONORABLE MACKIE M. PIERCE, CIRCUIT JUDGE
& Kemp, PLLC, by: Angela Mann and Harrison Kemp, for
LaCerra, Dickson, Hoover & Rogers, PLLC, by: Traci
LaCerra, for appellee.
MARK KLAPPENBACH, Judge
Christopher Raymond appeals the January 26, 2018 order of the
Pulaski County Circuit Court that granted the motion of
appellee Linda K. Kuhns (previously Raymond) to relocate to
Louisville, Kentucky, with the parties' two sons, JR
(born in 2008) and ZR (born in 2010). Appellant argues that
the circuit court clearly erred and that it was not in the
children's best interest to grant appellee's motion
to relocate. We affirm.
reviewing child-custody cases, we consider the evidence de
novo, but we will not reverse the circuit court's
findings unless they are clearly erroneous or clearly against
the preponderance of the evidence. McNutt v. Yates,
2013 Ark. 427, at 8, 430 S.W.3d 91, 97. A finding is clearly
erroneous when, although there is evidence to support it, the
reviewing court is left with the definite and firm conviction
that a mistake has been made. Boudreau v.
Pierce, 2011 Ark.App. 457, at 11, 384 S.W.3d 664, 671.
It is well settled that the primary consideration is the
welfare and best interest of the child, while other
considerations are merely secondary. McNutt, 2013
Ark. 427, at 8, 430 S.W.3d at 97. We give special deference
to the superior position of the circuit court to evaluate and
judge the credibility of the witnesses in child-custody
cases, and this deference to the circuit court is even
greater in cases involving child custody, as a heavier burden
is placed on the circuit court to utilize to the fullest
extent its powers of perception in evaluating the witnesses,
their testimony, and the best interest of the children.
determining whether a parent may relocate with a minor child,
a circuit court must generally look to the principles set
forth in Hollandsworth v. Knyzewski, 353 Ark. 470,
109 S.W.3d 653 (2003), and Singletary v. Singletary,
2013 Ark. 506, 431 S.W.3d 234. In Hollandsworth, the
supreme court announced a presumption in favor of relocation
for custodial parents with sole or primary custody, with the
noncustodial parent having the burden to rebut this
presumption. Hollandsworth, 353 Ark. at 485, 109
S.W.3d at 663. In Singletary, the court explained
that the Hollandsworth presumption does not apply
when the parents share joint custody of a child.
Singletary, 2013 Ark. 506, at 8, 431 S.W.3d at 239-
40. The proper analysis for a change-in-custody request due
to the relocation of one parent in a joint-custody situation
is the same as that when relocation is not involved; the
court must first determine whether a material change in
circumstances has transpired since the last order on custody
and then whether the change in custody is in the best
interest of the child. See id. When the agreement
states that the parties share "joint legal custody"
but that one parent has "primary physical custody"
subject to certain visitation privileges, and when the ratio
of actual time with the children is basically a 60/40 split,
then this falls within the joint-custody analysis of
Singletary. See Cooper v. Kalkwarf, 2017 Ark. 331,
532 S.W.3d 58. The Hollandsworth presumption should
be applied only when the parent seeking to relocate is not
only labeled the "primary" custodian in the divorce
decree but also spends significantly more time with the child
than the other parent. Id.; Tidwell v.
Rosenbaum, 2018 Ark.App. 167, 545 S.W.3d 228.
case, the parties divorced in 2012 and agreed that they would
"share joint legal custody" of the boys with Linda
"having primary physical custody." In 2014, the
parties filed competing motions concerning visitation and
custody, but in 2015, they entered into an agreed order that
continued the same custodial titles but reduced Chris's
parenting time. In 2017, Linda filed a motion to relocate
with the children to Louisville, Kentucky, so that she could
accept a job with greater earning capacity as a pilot for
UPS. Chris filed a response in opposition to Linda's
motion asserting various reasons why it was not in the
children's best interest to permit relocation, and he
also filed a motion to change primary custody to him. Linda
filed a response in opposition to changing custody to Chris.
competing motions were heard before the circuit court in
December 2017. The parties both testified and presented
testimony from ZR's counselor, Sara Smith; ZR and
JR's counselor, Scott Loye; and a UPS pilot, Kenneth
Butry. After taking the matter under advisement, the circuit
court issued a twelve-page extensively detailed order in
January 2018 that denied Chris's motion to change custody
and granted Linda's motion to relocate, reviewing her
motion under the Singletary standards. Chris
appeals, arguing that the trial court's decision to
permit Linda to relocate with the boys was analyzed
inappropriately under the Hollandsworth standards
and that the trial court's decision is not in the
children's best interest. Chris does not contest that
there was a material change in circumstances in this case.
argues that the circuit court did not adhere to the
requirement to view the evidence from a neutral point of view
in determining the children's best interest as required
by Singletary but instead placed an additional
burden on him to rebut the presumption established by
Hollandsworth that would be in favor of Linda
relocating with the boys. Chris contends that Linda never
presented any evidence or testimony that her move to Kentucky
would be in the children's best interest; instead, he
presented evidence to show that the boys needed to stay in
the Little Rock area where they were thriving and where they
had lived their whole lives. Chris argues that the evidence,
when viewed from a neutral perspective, could lead to only
one conclusion, which would be to deny Linda's petition.
As we will explain, Chris has failed to demonstrate that the
circuit court clearly erred, and we affirm the circuit
circuit court acknowledged that this was "an exceedingly
difficult decision" considering that these were two very
involved and loving parents, both of whom had remarried and
brought involved and loving stepparents into the
children's lives. The circuit court specifically set out
its understanding of the law on relocation and explained that
"the presumption in favor of relocation does not
apply." The circuit court recognized that this case
required a best-interest determination in considering the
parties' competing motions.
circuit court recounted the testimony and evidence, most of
which is not in dispute and is summarized as follows. Chris
and Linda are lieutenant colonels in the Arkansas Air
National Guard and both work at the air force
base. Chris is a squadron commander of his unit,
and Linda is a pilot-technician who trains pilots in this
unit. Chris is not technically in Linda's chain of
command, but Linda explained instances that gave her concern
that she received unfavorable treatment due to Chris having
indirect authority over her, which the trial court believed.
and Linda had remarried to people who were good stepparents
and positive influences in the children's lives.
Linda's salary with the Guard was $106, 655, and she had
six days off per month. Linda had been offered a position
with UPS that would initially require training at a lower
salary, but after a year she would earn $175, 000. She said
that she had not accepted UPS's first job offer in July
2017 because of the situation with Chris and her children,
but UPS was holding the job open for her. Linda said that her
job with UPS would not require her to wear the equipment
required by the Guard. This equipment had caused her neck and
shoulder pain and required her to undergo physical therapy.
Linda understood that after her training period, her flight
schedule might require that she be gone overnight up to
fourteen days at a time, but she would also have at least
fourteen days off per month. She believed she had been
guaranteed that her hub would be in Louisville, Kentucky, the
one closest to Arkansas.
boys attended Episcopal Collegiate School in Little Rock.
Linda had already found a comparable private school,
Louisville Collegiate, where they could attend in the fall of
2018; JR had been accepted for enrollment, and ZR (who is
high functioning on the autism spectrum) was conditionally
accepted. Linda explained that if she were permitted to
relocate with the boys to Louisville, her husband's
parents would live with them to help her care for the boys
while she was in training or while she was working. Her
husband was going to stay in Arkansas until January 2019 when
he could retire from the military and ...