APPEAL
FROM THE PULASKI COUNTY CIRCUIT COURT, FIFTEENTH DIVISION
[NO. 60DR-16-2368] HONORABLE RICHARD MOORE, JUDGE
Skarda
Law Firm, by: Cecily Patterson Skarda, for appellant.
LaCerra, Dickson, Hoover & Rogers, PLLC, by: Natalie
Dickson and Lauren Hoover, for appellee.
N.
MARK KLAPPENBACH, JUDGE.
Emily
Armstrong appeals the order of the Pulaski County Circuit
Court prohibiting her from relocating with the minor child
born to her and appellee Martel Draper. Armstrong contends
that the circuit court erred in interpreting the original
custody order as granting the parties joint custody. We
reverse the circuit court's order and remand for further
proceedings.
Armstrong
gave birth to the parties' son, AAD, in 2016. She and
Draper were never married. Following a custody hearing in
February 2017, the circuit court entered an order on April
17, 2017, providing that "[d]ue to the age of the child
and the need for continued contact, the parties shall share
joint legal custody of the minor child with mother being the
primary custodian." The court ruled that until the child
turned one year old, the visitation schedule would remain as
previously ordered in the court's December 2016 order
that was entered pending the final trial. That order granted
Draper visitation on Monday and Wednesday evenings from 6:15
p.m. until 9:00 p.m. as well as every Friday from 10:00 a.m.
until Saturday at 6:00 p.m. Once the child turned one year
old, the court granted Draper visitation as follows:
a. every other weekend from Friday at 5:00 p.m. until Sunday
at 5:00 p.m.
b. on the weeks that Father does not have his weekend
parenting time he shall have two overnights. Unless otherwise
agreed by the parties, these overnights shall be Wednesday
from 8:00 a.m. until Friday at 8:00 a.m.
c. All other times by agreement. Mother expressed to the
Court that Father is welcome to visit with the minor child
any other reasonable time. If this turns out to be a false
promise, Father may petition the Court for relief.
The
order also set out Draper's child-support obligation,
ruled that the parties should equally divide the cost of
uncovered medical expenses, and ruled that Armstrong was
entitled to claim the child each year as a tax dependent.
In June
2017, Draper filed an ex parte emergency petition for relief,
alleging that Armstrong intended to relocate to Colorado with
ten-month-old AAD and requesting an order prohibiting her
from moving pending a full hearing on the merits. The hearing
was held on December 6, 2017. Armstrong testified that when
she became pregnant with AAD, her mother moved from Colorado
to live with her. Her mother now wished to move back to
Colorado, and Armstrong wanted to relocate with her and the
child. Armstrong explained that her mother had been very
instrumental in helping both her and Draper care for the
child by keeping him when they were at work. In addition to
having her mother's assistance in Colorado, Armstrong
said that she would have support from her aunts and extended
family, although they had not yet met AAD. Armstrong had a
full-time job lined up in Colorado as a makeup artist with
MAC Cosmetics; in Little Rock she worked part time for MAC
Cosmetics and part time at a restaurant.
Armstrong
said that Draper had exercised his visitation as outlined in
the order, which amounts to two days a week, but there had
been times when Draper had picked the child up late or ended
the visitation early. Armstrong recounted a time when she
left work early to pick the child up because Draper said that
he was having a hard time with the child at bedtime and he
was busy packing to go out of town. On another occasion,
Armstrong said that Draper brought the child back to her at
night because the child was sick. Armstrong testified that
Draper had not exercised visitation beyond the designated
times on a consistent basis. She said that there had been a
few times that Draper had spent time with the child on days
when he did not have visitation, but there had also been
times that he did not show up when she offered a time to come
by. Armstrong was concerned about leaving the child with
Draper for extended periods of time because there had been
issues with the child returning to her care with bad diaper
rash and "smelling like an ashtray." Armstrong said
that she had been the one taking the child to the
doctor-aside from one appointment-and that she planned the
child's meals and activities even during Draper's
visitation time. She said that Draper had not been
responsible with those kinds of things when the child was in
his care. Armstrong said that she had not been able to rely
on Draper for financial assistance because he had missed
child-support payments.
Draper
testified that he had made all his child-support payments
through August 2017, but he had been laid off from his job in
March 2017 and had not worked since then, aside from some
occasional contract work. He said that he had been living off
credit cards and his family helped him out, but he bought
everything for the child that was needed at his house.
Regarding extra visitation time as contemplated in the
custody order, Draper said that Armstrong tells him that he
can come visit but does not allow him to take the child. He
said that it usually did not work out when he tried to come
see the child because Armstrong would get back to him too
late regarding a time to come. He also said that Armstrong
refused to let him make up visitation time he missed on one
occasion when he had to go out of town for work. Draper said
that he is close with his parents, siblings, and other
extended family who all live in Arkansas and spend time with
the child. Draper's sister testified that the whole
family is close with the child, and she tried to see him
every time Draper had visitation.
After
the hearing, the parties submitted letter briefs to the court
disputing the proper analysis to be applied in the case. The
circuit court entered an order finding that the case should
be analyzed as a joint-custody case under the requirements
set out in Singletary v. Singletary, 2013 Ark. 506,
431 S.W.3d 234. Under this analysis, the court found that
both parties had testified that there had been no material
change of circumstances and found that relocation would not
be in the best ...