APPEAL
FROM THE PULASKI COUNTY CIRCUIT COURT, SIXTH DIVISION NO.
60DR-13-2464] HONORABLE TIMOTHY DAVIS FOX, JUDGE
Aimie
Lockwood, for appellant.
Taylor
& Taylor Law Firm, P.A., by: Andrew M. Taylor and Tasha
C. Taylor, for appellee.
MIKE
MURPHY, JUDGE
Mia
Ellington appeals the decision of the Pulaski County Circuit
Court giving her ex-husband, Bernard Ellington, primary
custody of the parties' two children. On appeal, Mia
argues that there was no material change in circumstances to
warrant a change of custody, a change of custody is not in
the children's best interest, and it was inappropriate to
be ordered to pay child support when the children are in her
care a majority of the time. We agree and reverse.
Mia and
Bernard were married in 2007 and divorced in 2014. There were
two children born of the marriage. At the time of the
divorce, a decree was entered awarding the parties joint
legal custody, with Mia having sole physical custody subject
to Bernard's visitation. That decree further provided
that the children would reside with Mia the majority of the
time and that Mia would be responsible for "managing the
day-to-day business regarding the children's schedule,
activities, and healthcare."
On
March 8, 2017, Bernard filed a motion for sole physical and
legal custody, or in the alternative, for joint physical
custody. Mia responded and then filed a motion for contempt
and change in the visitation schedule. The court entered a
temporary agreed order, and a hearing was held on the
competing motions on February 7, 2018. At the conclusion of
the hearing, the court changed sole physical custody and
decision-making authority from Mia to Bernard and ordered Mia
to pay child support. Despite this change, the visitation
schedule remained the same, with Mia having the children more
than Bernard.
The
order listed the following in support of its finding a
material change of circumstances:
a. [Mia], as the custodial parent, repeatedly exercised poor
judgment in establishing the living arrangements for the
minor children;
b. [Mia] failed to provide for the appropriate degree of
hygiene and cleanliness that was available to the minor
children given the parties social economic circumstances;
c. [Mia] failed to be proactive in communicating with the
noncustodial parent; and
d.[Mia] repeatedly failed to provide appropriate adult
supervision to ensure the safety and well-being of the minor
children.
The
order further provided that "[t]he children will
maintain the same visitation schedule with the parties, but
[Bernard] will be responsible for managing the day-to-day
business regarding the children's schedules, activities,
and healthcare." Mia was ordered "to pay the chart
amount of support according to the Arkansas Family Support
Chart for each child," and an order setting out what
that actual amount is was entered three days later. Mia now
appeals. For purposes of discussion, Mia's arguments can
best be organized into three sections: (1) there was no
material change; (2) a change in custody is not in the best
interest of the children; and (3) an award of child support
was clear error. Because we agree with Mia that there was not
a material change in circumstances, we need not address the
other two issues.
Arkansas
law is well settled that the primary consideration in
child-custody cases is the welfare and best interest of the
children; all other considerations are secondary.
Schreckhise v. Parry, 2019 Ark.App. 48, at
5–6, 568 S.W.3d 782, 786. Generally, courts impose more
stringent standards for modifications of custody than they do
for initial determinations of custody. Id. The
reason for requiring more stringent standards for
modifications than for initial custody ...