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Wadley v. Wadley

Court of Appeals of Arkansas, Divisions III, IV

November 20, 2019



          Mann & Kemp, PLLC, by: Harrison Kemp, for appellant.

          Brown Law Firm, Rebecca Brown, P.A., by: Rebecca Brown, for appellee.


         The divorce decree entered by the Pulaski County Circuit Court awarded Cody Wadley and Katie Wadley joint legal custody of their child AW (born October 17, 2016). The decree further gave Katie primary physical custody and gave Cody visitation, with the parties spending approximately equal time with AW, and ordered Cody to pay child support. Five months after the decree was entered, Katie moved to reduce Cody's visitation and to request that Cody be ordered to pay back child support. On March 28, 2019, the circuit court entered an order maintaining the parties' joint legal custody of AW with Katie serving as primary physical custodian, but the court reduced Cody's visitation to every other weekend and one weeknight a week. The court also found Cody in contempt for failing to pay child support. Cody appeals the order, arguing that there was no material change of circumstances warranting the modification in visitation, the modification is not in AW's best interest, and the court erred in finding him in contempt. We affirm in part and reverse and dismiss in part.

         In reviewing domestic-relations cases, appellate courts consider the evidence de novo. Baber v. Baber, 2011 Ark. 40, at 9, 378 S.W.3d 699, 705. We will not reverse the circuit court's findings unless they are clearly erroneous. Id., 378 S.W.3d at 705. Whether the circuit court's findings are clearly erroneous turns largely on the credibility of the witnesses, and we give special deference to the superior position of the circuit court to evaluate the witnesses, their testimony, and the child's best interest. Id., 378 S.W.3d at 705.

         A circuit court maintains continuing jurisdiction over visitation and may modify or vacate those orders at any time when it becomes aware of a change in circumstances or facts not known to it at the time of the initial order. Id., 378 S.W.3d at 705. Although visitation is always modifiable, to promote stability and continuity for the children and to discourage repeated litigation of the same issues, courts require more rigid standards for modification than for initial determinations. Id., 378 S.W.3d at 705. Thus, the party seeking a change in visitation has the burden to demonstrate a material change in circumstances that warrants such a change. Id., 378 S.W.3d at 705. The primary consideration regarding visitation is the best interest of the child. Id., 378 S.W.3d at 705. Fixing visitation rights is a matter that lies within the sound discretion of the circuit court. Id. at 10, 378 S.W.3d at 705.

         Cody's first point on appeal is that the circuit court clearly erred in finding a material change in circumstances to support the order reducing his visitation. The circuit court first found that

the parties, who at the time of the divorce were able to agree on seemingly everything (the divorce was uncontested and the parties agreed on property distribution, debt allocation, custody-and-visitation schedule, and child support), are no longer able to communicate effectively, causing their ability to coparent to bog down.

         The court then found that since the decree had been entered, the following circumstances had changed: (1) the parties had been unable to get along; (2) both parties had moved; (3) Cody had at least two girlfriends either live with him or stay the night a considerable amount of time, and he was allowing these women to step into a "quasi-step-parenting role rather quickly and without discussion with Katie"; (4) Cody allowed his ex-girlfriend, Whitney Sims, to watch AW "the majority of the time" during his visitation; (5) Cody allowed his new girlfriend, Allison Lester, whom he had not been dating long, to pick up AW at exchanges; (6) Cody was smoking marijuana while AW was in his care, and while Cody claimed he had stopped smoking marijuana in December 2018, he tested positive for marijuana the day of the hearing, which was forty-five days later, and there was evidence that the specimen had been diluted; (7) Cody had changed jobs; and (8) Cody had been diagnosed with cancer and is undergoing treatment. The court found that while these circumstances considered alone may seem "minor," "the culmination of the changes is significant and is sufficient to convince the Court that there has been a material change in circumstances affecting the child's best interest sufficient to warrant a modification in [Cody's] visitation." We cannot say that the circuit court clearly erred in finding a material change in circumstances.

         At the hearing, Katie stated that since the divorce, she and Cody no longer communicate well and that they do not get along. She testified about disputes that arose (1) over a custody exchange during the Thanksgiving holiday; (2) when Katie confronted Cody about his marijuana use and voiced her opposition to it; he admitted his marijuana use but told her he would not give it up and that they would "settle it in court"; (3) when Katie asked Cody if she could keep AW while Cody was in the hospital for cancer treatment, he refused; (4) when Katie asked Cody who was keeping AW when Cody was not caring for him, Cody refused to tell her; and (5) when Katie asked Cody about Allison and how much time she was spending with AW, Cody refused to answer.

         Significantly, Cody admitted that he and Katie "have a lot of communication faults between" them. He testified about another dispute that arose between the parties-which was cited in the circuit court's order-over whether to apply the day-care or school-district schedule for the custody exchange during the Christmas holiday. This dispute required the involvement of the parties' attorneys. While the circuit court cited only one example of the parties' inability to get along in its order, under our de novo review we consider all the examples.

         Katie also testified that Cody has had "numerous" girlfriends since the divorce decree was entered and that he had been letting his girlfriends take care of AW. Whitney corroborated Katie's testimony. Whitney stated that she took care of AW 90 to 95 percent of the time Cody had custody of AW. Whitney testified that Cody "would pick [AW] up from daycare or pick him up from Katie and just give him to me. And then he would go to the gym or go hang out with friends or disappear. So I had [AW] alone most of the time."

         Katie stated that Cody lists the women he dates as people authorized to pick up AW from day care. Katie stated that Cody had been dating Allison only a month or a month and a half when he placed her name on the day care pickup list.[1] This evidence was not disputed by Cody, and it was not disputed by Allison, who attended the hearing but did not testify. Katie said Allison is nineteen ...

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