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Cox v. Cox

Court of Appeals of Arkansas, Division II, III

April 3, 2019

Melita COX (Now Nicola), Appellant
Nathan COX, Appellee

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         Taylor & Taylor Law Firm, P.A., Little Rock, by: Andrew M. Taylor and Tasha C. Taylor, for appellant.

         Hornsey Law Firm, by: James M. Hornsey, Fayetteville, for appellee.


         WAYMOND M. BROWN, Judge

          Appellant Melita Cox (now Nicola) appeals the order of the Washington County Circuit Court denying her motion for relocation and modification of visitation. On appeal, she argues that the circuit court "improperly shifted the burden to Ms. Nicola to prove that her proposed move to Winnipeg, Canada, would be advantageous to herself and the children." In light of the Arkansas Supreme Court’s decision in Hollandsworth v. Knyzewski ,[1] we agree and hold that the circuit court clearly erred in denying Melita’s request to relocate; therefore, we reverse and remand.

          The parties were divorced in August 2016. Born of the marriage were two children of whom Melita was awarded primary custody subject to appellee Nathan Cox’s visitation rights. In July 2017, Melita filed a motion to relocate, expressing her desire to move the children, M.C. (11) and

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F.C. (3), to Winnipeg, Canada, for "better education, financial and employment opportunities." Nathan responded, objecting to the relocation and asserting that it would have a "detrimental effect" on his relationship with the children. A hearing was held on January 3, 2018.

          At the hearing on the motion to relocate, both Melita and Nathan testified. Melita stated that following the divorce in 2016 she was awarded primary custody of the children while Nathan was awarded visitation on alternating weekends, 6:00pm-8:00pm on Tuesdays, and as provided in the court’s standard visitation schedule for holidays.

          Melita testified that she first notified Nathan on May 18, 2017, via text message regarding her desire to move and request for a "different visitation schedule." She stated that he responded that he wanted her to be happy and wished her well, which she took as an indication that he was supportive and consented to the move. Melita again contacted Nathan via text on June 27, 2017, concerning relocation and the need for a "revised long-distance visitation schedule." At that time, Nathan still did not object to Melita’s proposed move with the children.

         On July 7, 2017, Melita prepared a letter expressing her "intention to move to Winnipeg-Manitoba, Canada" for employment and educational opportunities. She expressed her willingness to work with Nathan in coordinating visitation and transporting the children between Canada and Arkansas.[2] Melita specifically provided:

I am willing to drive half way the distance between Fayetteville, Arkansas and Winnipeg, Canada every summer until the children turn 18 years old. They can spend the entire summer vacation with the non-custodial parent, Nathan Lloyd Cox, from first weekend of summer vacation until the last Friday preceding the start of the new school year.

          She further offered electronic communication with the children "by means of telephone, mobile phone, text messaging, [and] video conference" to supplement traditional forms of visitation. Still, there was no objection to the relocation from Nathan. Melita filed a motion for relocation and modification of visitation on July 14, 2017.

          Melita testified that on July 19, 2017, Nathan texted her the following:

We need to talk sometime. I wanna know all details. I will follow any path you think is best for you and kids. They will grow up soon and I don’t want to be the reason why they look down on me. One life we all have. Let’s think about kids. I have you’re [sic] back on any dission [sic] if it’s safe for my kids. This message was the hardest thing I ever have done in my life.

          They then arranged to meet to discuss the details; however, the meeting did not happen. The following week, Nathan informed Melita that he would "meet [her] in front of the judge."

          Melita testified that she wished to move to Canada to further her education, beginning with completing her Bachelor of Science degree and then moving on to medical school, stating that it "will be better for the kids if I get a better job and have a more stable financial situation." Melita also stated that moving to Canada would allow her parents to be involved in the children’s lives. She explained that her parents live in Romania and that it had been difficult for them to obtain a visa to

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visit them in the United States; however, Romanians can travel to Canada without a visa.

          Melita stated that she had already secured a one-bedroom apartment in Winnipeg and had placed a $ 450 deposit on it. Melita provided her acceptance letter to the University of Manitoba. F.C. is not yet of school age, but M.C. would attend George Waters Middle School in Winnipeg. Upon inquiry, the principal of George Waters Middle School informed Melita that M.C. should not have any academic problems with transitioning to the school. Melita obtained the school calendar and calculated a total of 95 days of school break during which Nathan could exercise visitation with the children (spring break, Christmas break, and summer). Under the current visitation schedule, Nathan receives 108 days of visitation. Melita explained that she would encourage the use of calls, messages, and video chat to supplement Nathan’s interaction with the children.

          On cross-examination, when asked if there was a medical school in Arkansas, Melita replied that there is not one in Fayetteville, but there is one in Little Rock-UAMS. However, "I did not apply to UAMS. My intention was to relocate, so I applied to the University of Manitoba." She further acknowledged that while many states may have medical schools, she did not apply to those schools because "[m]y focus was to relocate to Winnipeg, Canada." Additionally, "[a]s to whether I have a basis of comparison to attest that the educational opportunities afforded by the University of Manitoba are superior to any opportunities I would have at UAMS or any ...

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