APPEAL
FROM THE PULASKI COUNTY CIRCUIT COURT, FOURTEENTH DIVISION
[NO. 60DR-17-366] HONORABLE VANN SMITH, JUDGE
Mann
& Kemp, PLLC, by: Harrison Kemp, for appellant.
Brown
Law Firm, Rebecca Brown, P.A., by: Rebecca Brown, for
appellee.
LARRYD. VAUGHT, JUDGE
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 ...