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Raymond v. Kuhns

Court of Appeals of Arkansas, Division III

November 28, 2018



          Mann & Kemp, PLLC, by: Angela Mann and Harrison Kemp, for appellant.

          LaCerra, Dickson, Hoover & Rogers, PLLC, by: Traci LaCerra, for appellee.

          N. MARK KLAPPENBACH, Judge

         Appellant 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.

         In 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. Id.

         In 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.

         In this 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.

         The 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.

         Chris 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 court's order.

         The 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.

         The 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.[1] 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.

         Chris 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.

         The 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 ...

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