Cite as 2020 Ark. App. 23 ARKANSAS COURT OF APPEALS DIVISION IV No. CV-19-570
Opinion Delivered January 15, 2020
ADDAM MAXWELL APPEAL FROM THE BENTON COUNTY CIRCUIT COURT APPELLANT [NO. 04DR-16-720]
V. HONORABLE XOLLIE DUNCAN, JUDGE
LORI MAXWELL REVERSED AND REMANDED
APPELLEE
LARRY D. 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
2 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
3 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, 391–93, 288 S.W.3d
199, 202–03 (2008):
As a general rule, the appellate courts of this state will not review issues that are moot. See Cotten v. Fooks, 346 Ark. 130, 55 S.W.3d 290 (2001). To do so would be to render advisory opinions, which this court will not do. See id. We have generally held that a case becomes moot when any judgment rendered would have no practical legal effect upon a then-existing legal controversy. See id. In other words, a moot case presents no justiciable issue for determination by the court. See Shipp v. Franklin, 370 Ark. 262, 258 S.W.3d 744 (2007).
In the present case, Mitch is no longer a minor subject to an award of custody. Our
code authorizes circuit courts to award and modify the custody of a child, but “‘[c]hild’
means a person under eighteen (18) years of age.” Ark. Code Ann. § 9-8-101 (Supp. 2019).
1The court’s order awarded custody only as to Mitch, who was a minor at the time of
the order.
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Cite as 2020 Ark. App. 23 ARKANSAS COURT OF APPEALS DIVISION IV No. CV-19-570
Opinion Delivered January 15, 2020
ADDAM MAXWELL APPEAL FROM THE BENTON COUNTY CIRCUIT COURT APPELLANT [NO. 04DR-16-720]
V. HONORABLE XOLLIE DUNCAN, JUDGE
LORI MAXWELL REVERSED AND REMANDED
APPELLEE
LARRY D. 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
2 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
3 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, 391–93, 288 S.W.3d
199, 202–03 (2008):
As a general rule, the appellate courts of this state will not review issues that are moot. See Cotten v. Fooks, 346 Ark. 130, 55 S.W.3d 290 (2001). To do so would be to render advisory opinions, which this court will not do. See id. We have generally held that a case becomes moot when any judgment rendered would have no practical legal effect upon a then-existing legal controversy. See id. In other words, a moot case presents no justiciable issue for determination by the court. See Shipp v. Franklin, 370 Ark. 262, 258 S.W.3d 744 (2007).
In the present case, Mitch is no longer a minor subject to an award of custody. Our
code authorizes circuit courts to award and modify the custody of a child, but “‘[c]hild’
means a person under eighteen (18) years of age.” Ark. Code Ann. § 9-8-101 (Supp. 2019).
1The court’s order awarded custody only as to Mitch, who was a minor at the time of
the order. 4 Because Mitch is now eighteen, he does not fall under the statute’s definition of a “child”
subject to a custody award, and Addam’s appeal of the court’s order regarding custody of
Mitch is moot.
The court’s child-support determinations are not moot, however, both because they
address back child support and because the order provided for support until Mitch either
turned eighteen or graduated high school, whichever occurred later, and Mitch has not yet
graduated high school.2 Moreover, while Nate has graduated from high school, he has
ongoing medical issues that will likely require him to continue living with Lori for at least the
foreseeable future. It is unclear whether the court factored Nate’s care into its child-support
order.
Addam appeals the court’s modification of child support, arguing that it was error for
the court to require him to pay child support to Lori while their only minor son, Mitch, lives
full time with Addam. We must reverse the court’s child-support findings because it failed to
reference the family-support chart found in Administrative Order No. 10 and failed to make
key findings necessary for its award.
Our case law clearly establishes that utilizing the family-support chart contained in
Administrative Order No. 10 is mandatory when setting or modifying child support. Holloway
v. Holloway, 2019 Ark. App. 375, at 4, 586 S.W.3d 173, 176. There is a rebuttable
presumption that support awarded pursuant to the chart is the appropriate amount of
support and can be modified only upon written findings stating why the application of the
2Unlike custody, Arkansas law clearly allows for a parent’s child-support obligation to
continue after the child has turned eighteen, if the child is still in high school or is disabled and will need ongoing care. See Ark. Code Ann. § 9-14-237 (Repl. 2015); Guthrie v. Guthrie, 2015 Ark. App. 108, 5, 455 S.W.3d 839, 843. 5 chart amount would be unjust or inappropriate. Id., 586 S.W.3d at 176. Here, the circuit
court’s order fails to reference the family-support chart or state reasons why the application
of the chart amount would be unjust or inappropriate. The court’s order also fails to make
key findings as to which parent had physical custody3 over one or both of their sons during
each of the designated periods of time and whether the court was considering Nate’s
ongoing medical expenses as a basis for awarding support despite his age.
We therefore reverse and remand the child-support issue for the circuit court to
decide in accordance with our opinion.
Reversed and remanded.
VIRDEN and GLADWIN, JJ., agree.
Kezhaya Law PLC, by: Matthew A. Kezhaya, for appellant.
One brief only.
3Because Arkansas Code Annotated section 9-14-105 (Repl. 2015) allows a parent
having physical custody of a minor child to petition the court to require the noncustodial parent to provide financial support for the minor, determinations of who had physical custody of one or both boys during the relevant time periods may be dispositive, yet the court made no findings as to this issue. 6