Blivin v. Weber

126 S.W.3d 351, 354 Ark. 483, 2003 Ark. LEXIS 557
CourtSupreme Court of Arkansas
DecidedOctober 23, 2003
Docket02-1189
StatusPublished
Cited by9 cases

This text of 126 S.W.3d 351 (Blivin v. Weber) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Blivin v. Weber, 126 S.W.3d 351, 354 Ark. 483, 2003 Ark. LEXIS 557 (Ark. 2003).

Opinion

Robert L. Brown, Justice.

Appellant, Jamai Weber Blivin, appeals from the circuit court’s denial of her motion to modify visitation and custody in which she sought permis- ■ sion to relocate from Arkansas to North Carolina with her children to join her new husband. She asserts that the circuit court erred in applying the wrong legal standard in refusing to allow her to relocate, which actually elevated her burden of proof to a higher standard than required. Because we recently announced a presumption in favor of relocation for a custodial parent in Hollandsworth v. Knyzewski, 353 Ark. 470, 109 S.W.3d 653 (2003), 1 we reverse and remand the case for the circuit court to consider the matter in'light of that decision.

Jamai and appellee Blake Weber were married on December 8, 1990, and were divorced on February 28, 2001. Three children were born of the marriage, and at the time of the divorce, their ages were Jessica (age two), Hunter (age six), and Paul (age seven). The divorce decree provided that the parties would share joint legal custody of the children, but that Jamai would have primary physical custody. The custody provision further stated that “neither party shall remove the minor children from the State of Arkansas on a permanent basis without prior court approval.”

Sometime around March 11, 2001, Jamai met David Blivin at a basketball tournament in Atlanta, Georgia, and on January 19, 2002, they were married. Eight days before their marriage, David Blivin was divorced. He has three children from his previous marriage: Christopher (age thirteen) and twins Matthew and Millicent (age five). David Blivin is a venture capitalist who lives in the Raleigh-Durham area, where he and Jamai Blivin purchased a home together.

On February 28, 2002, Jamai Blivin filed a motion to modify visitation and custody. In her motion, she stated that she had recently married David Blivin, a resident of North Carolina, and she sought “permission to change the children’s primary residence from Arkansas to North Carolina and approval of a liberal and specified visitation schedule for [Mr. Weber] which essentially provides [him] with about the same amount of time with the children each year.”

Blake Weber responded to the motion and countermotioned for a change of custody. He said that “it would be in the minor children[’s] best interest to remain in the State of Arkansas in the physical custody of the Defendant if [Jamai Blivin] chooses to move to North Carolina.” A three-day hearing was held on the motion and countermotion at which time both parties presented testimony in support of their respective positions. Jamai Blivin testified that although she had been working full-time as a stockbroker prior to her divorce, she had since reduced her workload to part-time, which had decreased her salary. She testified that she was extremely involved in her children’s lives and stated that upon her relocation to North Carolina, she did not plan to work and would be a “stay-at-home mom.”

With regard to schooling for the children, Jamai Blivin testified that the schools in Durham were “state-of-the-art” and that she and her husband had selected their new home based on the school her children would attend. She added that the school operates on a year-round schedule, which she chose because of the opportunities it would permit for their father’s visitation. She then presented a proposed visitation schedule, which she claimed would give Blake Weber 123 days with the children in Little Rock, which was a slight reduction from his current 137 days of visitation. Several witnesses testified that Jamai Blivin was a good mother and that she always had her children’s interests at heart.

Blake Weber, who is a dentist in Little Rock with a successful practice, also had witnesses testify on his behalf. They stated that he was a good father who enjoyed spending time with his children. Blake Weber testified himself and stated that he believed that the children were better off staying in Arkansas. He was concerned that should the children attend a year-round school, they would “miss huge chunks of participation in [sporting] activities.” He further voiced concerns about year-round schooling in that every time they would have a break from school, they would be taken away from their friends and their activities whether in Little Rock or North Carolina. He also testified that his parents had been a great influence on the children. Finally, he testified that he would work a portion of each Friday and would reduce his work hours on other days in order to spend more time with the children after school.

On July 17, 2002, the circuit court entered its order and made the following findings:

15. The Court concludes that both parents are good parents, love their children very much, are able to provide the necessities of life and much more, and either are suitable to have custody of the children.
16. The Court is called upon to decide whether the plaintiff may relocate the children in North Carolina.The Court first looks to the law of relocation in Arkansas and finds that Staab v. Hurst, 44 Ark. App. 128, 868 S.W.2d 517 (1994) is still the controlling case in this area, even though a recent [court of appeals’] case styled Hollandsworth v. Knyzewski (CA 01-982) handed down July 3, 2002, attempts to refine this law. The Court first has to determine whether the plaintiff has met her burden of demonstrating that some real advantage will result to the new family unit from the move.
20. In the present case, this Court cannot find that there will be no real advantage to the family unit relocating to North Carolina. The precedent of Hollandsworth is clear that only a minimum of evidence is required to meet this burden.
22. In any event, this Court will follow the majority decision in Hollandsworth and find that the plaintiff has met her burden that “some real advantage will result to the new family unit from the move.”
24. . . .The Court agrees that the general quality of fife will improve for the custodial parent by moving to North Carolina since she would now be married, would no longer have the burden of providing income for the family, and would be a stay at home mom.
25. The Court cannot find that the move would improve the general quality of life for the children as both the home in North Carolina and Arkansas present a quality of life that will allow the children to succeed and prosper.
26. ... The Court cannot find any sinister motive in the plaintiff in seeking the move.
27. ... The Court again is convinced the plaintiff would comply with any substitute visitation orders that this Court orders.
28. .. .The Court finds that the defendant is sincerely resisting the removal. His motives are valid.
32.

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Cite This Page — Counsel Stack

Bluebook (online)
126 S.W.3d 351, 354 Ark. 483, 2003 Ark. LEXIS 557, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blivin-v-weber-ark-2003.