JENNIFER L. WARD APPELLANT
STEVEN W. WARD II APPELLEE
FROM THE LAWRENCE COUNTY CIRCUIT COURT [NO. 38DR-15-58]
HONORABLE TIMOTHY WATSON, JUDGE.
Law Firm, by: Mark Rees, for appellant.
& Stroud, by: Barrett S. Moore, for appellee.
BRANDON J. HARRISON, Judge
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.
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.
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.
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.
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.
circuit court awarded primary custody of H.W. to Steven, and