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Ward v. Ward

Court of Appeals of Arkansas, Division IV

October 2, 2019

JENNIFER L. WARD APPELLANT
v.
STEVEN W. WARD II APPELLEE

          APPEAL FROM THE LAWRENCE COUNTY CIRCUIT COURT [NO. 38DR-15-58] HONORABLE TIMOTHY WATSON, JUDGE.

          Rees Law Firm, by: Mark Rees, for appellant.

          Blair & Stroud, by: Barrett S. Moore, for appellee.

          BRANDON J. HARRISON, Judge

         Jennifer Ward appeals the Lawrence County Circuit Court's decision that gave her ex-husband, Steven Ward, primary custody of their daughter H.W. She argues that the court's findings were clearly against the preponderance of the evidence. Because we are firmly convinced that the circuit court's stated reasons for finding that a material change in circumstances had occurred were mistaken, we reverse the court's 20 November 2018 order.

         I.

         The parties divorced in 2016. The decree provided,

Based on the agreement of the parties the court awards joint custody of the minor child, [H.W.] to both parties with the parties to share equal time with the child. The custodial period shall be from Friday at 5:00 p.m. until the next Friday at 5:00 p.m. The parties have been alternating custody and the meeting place for delivery and pickup of the child shall remain the same unless the parties agree in writing to a different location. If the parties are unable to agree on holiday visitation, they shall reference the court's standard visitation schedule with respect to all holidays.

         In January 2018, Jennifer petitioned to modify custody and for child support, arguing that there had been a material change of circumstances because Steven had taken a job on a riverboat, and H.W. had been in her custody 80 percent of the time since. Jennifer pleaded that it would be in H.W.'s best interest to be in her custody, for Steven to receive standard visitation, and for her to receive child support. In February 2018, Steven answered and generally denied the allegations in Jennifer's petition. Nine months later, he filed a counterclaim alleging that Jennifer had restricted his custodial visitation, that H.W. should be placed in his custody, and that Jennifer should pay child support.

         The circuit court convened a hearing the same day that Steven filed his counterclaim, which was tried with Jennifer's petition. Neither party moved to amend their pleadings to conform with the proof presented during the hearing.

         One day after the hearing, the court entered a letter opinion, which it did not incorporate into its subsequent 20 November 2018 written order. The November order contains the following finding, among others:

9. Change of Circumstances: The Court finds the changed circumstances is the fact that [Steven] was on the boat; there has been a change since the decree; that's what the court finds as the change in circumstances; and the fact that she has three children and a small house and she has no money; [Steven] has a job, or he's going to get a job; the Court is taking his word for it; [Steven] is going to have money; he has a home and plenty of room. The Court states that the parties agreed that circumstances had changed since the entry of the divorce decree by virtue of the father's work on a riverboat, thus requiring a change in court-ordered visitation. The parties voluntarily altered the original custody arrangement to meet this change.

         The circuit court awarded primary custody of H.W. to Steven, and ...


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