APPEAL
FROM THE BENTON C O U NT Y C IRC U IT C O U R T [NO.
04DR-16-720] HONORABLE XOLLIE DUNCAN, JUDGE
Kezhaya Law PLC, by: Matthew A. Kezhaya, for appellant.
One
brief only.
LARRYD. VAUGHT, Judge
Addam
Maxwell appeals the Benton County Circuit Court's order
denying his petition for change of custody and assessment of
child support. We do not reach the merits of the custody
issue because it is now moot. We reverse and remand the
court's child-support order because the court failed to
reference the family-support chart and failed to make
necessary findings.
Lori
and Addam Maxwell were married on July 14, 1990. They have
two sons, Nate (born in May 1999) and Mitch (born in June
2001). The parties were divorced on January 25, 2017, and the
court awarded joint custody of their sons pursuant to a
property-settlement agreement. In September 2017, Nate began
living full time with Addam. He lived with Addam until May
22, 2018. In January 2018, Mitch also began living full time
with Addam. He was still living with Addam at the time of the
hearing.
In
January 2018, Addam petitioned the court for a change of
custody and assessment of child support. The court held a
hearing on the issue, at which evidence was introduced
indicating that Lori and Addam had difficulty communicating
and often could not agree on parenting decisions on issues
such as medical treatment, discipline, visitation, and how to
divide expenses. Mitch, who was seventeen at the time of the
hearing, testified that he preferred to continue living full
time with Addam.
After
the hearing, the court chastised the parties for their
inability to cooperate, and it found that their dysfunctional
parenting relationship had negatively impacted their sons.
The court took the matter under advisement and entered an
order on August 21, 2018. The order denied Addam's motion
to modify custody. It also assessed back child support for
three separate periods, finding that Addam owed Lori $399 for
the period between November 10, 2017, and March 2, 2018; that
Lori owed Addam $1, 615 for the period between March 16 and
May 25, 2018; and that Lori owed Addam $1, 232 for the period
between May 25 and August 6, 2018. The court further ordered
that Addam pay Lori $431.75 biweekly until Mitch graduates
high school or turns eighteen, whichever is later.
Addam
previously appealed, and we dismissed the appeal for lack of
jurisdiction because the order being appealed failed to
dispose of a cross-complaint filed by Lori. That issue has
now been resolved, and the order being appealed is final.
We
perform a de novo review of child-custody matters, but we
will not reverse the circuit court's findings unless they
are clearly erroneous. Grimsley v. Drewyor, 2019
Ark.App. 218, at 8, 575 S.W.3d 636, 641. A finding is clearly
erroneous when, although there is evidence to support it, the
reviewing court is left with the definite and firm conviction
that a mistake has been made. Id., 575 S.W.3d at
641. Finally, we recognize and give special deference to the
superior position of the circuit court to evaluate the
witnesses, their testimony, and the child's best
interest. Id., 575 S.W.3d at 641. The primary
consideration in child-custody cases is the welfare and best
interest of the children; all other considerations are
secondary. Id., 575 S.W.3d at 641.
A
judicial award of custody will not be modified unless it is
shown that there are changed conditions that demonstrate that
a modification of the decree will be in the best interest of
the child or when there is a showing of facts affecting the
best interest of the child that either were not presented to
the circuit court or were not known by the circuit court at
the time the original custody order was entered. Rice v.
Rice, 2016 Ark.App. 575, at 4, 508 S.W.3d 80, 84 (citing
Stehle v. Zimmerebner, 375 Ark. 446, 291 S.W.3d 573
(2009)). Generally, courts impose more stringent standards
for modifications in custody than they do for initial
determinations of custody. Id. at 4, 508 S.W.3d at
84. The reasons for requiring more stringent standards for
modifications than for initial custody determinations are to
promote stability and continuity in the life of the child and
to discourage repeated litigation of the same issues.
Id., 508 S.W.3d at 84. The party seeking
modification has the burden of showing a material change in
circumstances. Id., 508 S.W.3d at 84 (citing
Byrd v. Vanderpool, 104 Ark.App. 239, 290 S.W.3d 610
(2009)).
When
the parties are unable to cooperate in sharing physical care
of their children, such discord may constitute a material
change in circumstances affecting the children's best
interest. Doss v. Miller, 2010 Ark.App. 95, at 9,
377 S.W.3d 348, 355. We have reversed the continuation of a
joint-custody arrangement on a motion to modify custody when
"there was a mountain of evidence . . . demonstrating
that the parties could no longer cooperate in reaching shared
decisions in matters affecting their children."
Id., 377 S.W.3d at 355; see also Stibich v.
Stibich, 2016 Ark.App. 251, at 5, 491 S.W.3d 475, 479
(quoting Gray v. Gray, 96 Ark.App. 155, 157, 239
S.W.3d 26, 29 (2006)) ("Regardless of whether joint
custody is favored, our law remains that 'the mutual
ability of the parties to cooperate in reaching shared
decisions in matters affecting the children's welfare is
a crucial factor bearing on the propriety of an award of
joint custody, and such an award is reversible error where
the cooperation between the parents is lacking.'").
Before
addressing the merits of Addam's arguments, we must first
evaluate whether some or all of the issues have been rendered
moot during the pendency of this appeal. Nate is now twenty
years old, [1] and Mitch turned eighteen last June.
Because both sons are now legally adults, the custody
determination is now moot.
As our
supreme court explained in Terry v. White, 374 Ark.
387, ...