Benedix v. Romeo

232 S.W.3d 493, 94 Ark. App. 412
CourtCourt of Appeals of Arkansas
DecidedMarch 15, 2006
DocketCA 05-418
StatusPublished
Cited by2 cases

This text of 232 S.W.3d 493 (Benedix v. Romeo) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Benedix v. Romeo, 232 S.W.3d 493, 94 Ark. App. 412 (Ark. Ct. App. 2006).

Opinion

Sam Bird, Judge.

Appellant, Tori Romeo Benedix, mother and custodian of Bailey Michelle Romeo, her eleven-year-old daughter, appeals the trial court’s denial of her motion to move out of state with Bailey. Appellee is Bailey’s father, Richard Randall Romeo, from whom appellant was divorced in 1996. On appeal, appellant contends (1) that the trial court erred by relying upon and incorporating into its order the report and findings of the attorney/guardian ad litem, even though they were never introduced into evidence and were not part of the record, and (2) that the trial court erred in finding that appellee overcame the presumption in favor of allowing a custodial parent with primary physical custody to relocate with the child. We reverse and remand.

Appellant and appellee were married in 1989; one child, Bailey, was born of the marriage. Appellant, who resides in Conway, Arkansas, is the custodian of Bailey and is married to Danny Benedix.

On March 3, 2004, appellant filed a motion to move with her daughter to appellant’s hometown of Harrah, Oklahoma. In the motion, she stated that her plans were not meant to “in any way interfere with [appellee’s] relationship with his daughter.” Furthermore, she averred that appellee’s visitation would continue, with the parties meeting halfway between Conway and Harrah to accomplish the exchange. Appellee subsequently petitioned the court to appoint an attorney/guardian ad litem to represent Bailey, and on June 21, 2004, the court did so.

At the hearing on the motion to move out of Arkansas, appellant testified that her family and her husband’s family were from Harrah, Oklahoma. She said that she had lived in Harrah for twenty-nine years before she married appellee, and that all of Bailey’s aunts, uncles, cousins, and grandparents on her side lived in Harrah. She testified that Harrah had “schools accredited with the State” and that it was a small town of “about five thousand” near Oklahoma City. She said that it took four-and-a-half hours to drive from Conway, Arkansas, to Harrah, and that Sallisaw, Oklahoma, was the halfway point. She explained that relocation would allow her to “be able to spend time and be part of our family again” and said that she was not related to anyone in Conway. She said that she came to Conway when she married appellee in 1989 and that appellee’s parents were in Conway.

Appellant opined that Bailey would benefit by relocating to Oklahoma because she would be able to spend time with extended family. She said that she wanted to see Bailey grow up with her cousins and be able to bond with them. She also said that she had “hoped to move home for years” and that there were recent events in her family suggesting that she needed to move home. She acknowledged that appellee had played an active role in Bailey’s life and she testified that her desire to move was not an attempt to thwart appellee’s visitation with Bailey. She said that she would comply with “whatever visitation schedule [was] promulgated by the Court” to allow Bailey to have time with appellee and his family in Conway.

Appellant explained that, pursuant to the divorce decree, appellee had visitation with Bailey every other weekend and every Wednesday. She said that appellee took Bailey to school on Thursday mornings and that major holidays were divided. According to the appellant, appellee received visitation for seven weeks during the summer months — from the time school was out until it started again. Appellant said that she was willing to continue the seven weeks of summer visitation, in addition to every other weekend and half of the major holidays. She proposed Sallisaw as the exchange point. She said that she was aware that appellee’s father was ill with cancer and she recognized that this could call for additional time to be spent by Bailey with appellee’s family.

On cross-examination, appellant said that appellee coached Bailey in extra-curricular activities and that he had done so for six years. According to appellant, this required two or three days a week of contact between appellee and Bailey. She said that appellee attended Bailey’s softball games and admitted that Bailey was “very close” to her paternal grandparents. She said that she had not been aware that appellee’s father was sick at the time she had filed the motion to move out of state.

Appellant also testified that, before she decided to move, she assessed the schools in Harrah to see how they compared to those in Conway. She conceded that she did not know that Harrah’s test scores were lower on a national average than those of schools in Conway. After introducing evidence of statistics showing that test scores in the Conway School District were higher than those in Harrah, appellee’s counsel questioned appellant about the difference. Appellant responded that the differences in test results at the two school districts did not concern her, and she thought that with a smaller school district Bailey would have “more advantages” and “more personalized schooling.”

Appellant said that Bailey had two older brothers in Conway and that “she is bonded to them and has had contact with them her whole life.” She also said that Bailey did not have contact with her paternal grandparents on a daily basis, but she (Bailey) saw them every other weekend, and Bailey’s grandfather picked her up from school sometimes on Wednesdays.

Appellant further testified that she was unemployed, but she felt that it would be “easy” to find ajob in Oklahoma. She said that two hair salons had offered her work. She also said that, during visits to Oklahoma, she stayed overnight with her husband’s family but also visited her family. After appellee introduced evidence purporting to show that appellant’s sister Katherine was a convicted felon, appellant said that she did not know where Katherine was and had not had contact with her for several months. She admitted that her sister had drug problems, and said that she would classify her sister as an “addict,” but claimed not to know that her sister was a felon. Appellant said that her sister had moved back in with their mother about two years ago and that she lived there “on and off.” She explained that her sister was allowed to stay at their mother’s house provided that she was in by ten o’clock, that she held a steady job, and that she was clean from drugs and alcohol. She said that her sister had not followed the rules and was no longer living with their mother. She stated that their mother had custody of Katherine’s daughter, Kristyn, and that she wanted to help take care of Kristyn because her mother worked “full time.”

Appellant said that she did not anticipate having to work evening hours in Harrah and that she thought she would be able to “pick and choose” what she would do. She said that her husband had two “very good” job offers that would not require her to work as much so she could stay home “much more.” She stated that she would work “part time” in Oklahoma. She also said that she thought her two older sons, who lived in the Conway area, would follow her to Oklahoma, but she was not sure of this.

Appellee also testified. He said that he was an agriculture teacher at Conway High School and that he had been there for nineteen years. He also said that he was the “FFA” advisor and that Bailey had participated with him in conventions and leadership camps, and that she went to contests and showed animals at the fair.

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235 S.W.3d 916 (Court of Appeals of Arkansas, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
232 S.W.3d 493, 94 Ark. App. 412, Counsel Stack Legal Research, https://law.counselstack.com/opinion/benedix-v-romeo-arkctapp-2006.