Calhoun v. Calhoun

138 S.W.3d 689, 84 Ark. App. 158, 2003 Ark. App. LEXIS 893

• Court: Court of Appeals of Arkansas
• Decided: December 10, 2003
• Docket: CA 03-356
• Status: Published

Opinions

Josephine Linker Hart, Judge.

Appellant, Sonya J. Calhoun, appeals from the circuit court’s denial of her petition for change of custody in which she urged that the custody of her minor child, who was bom March 1, 1995, be transferred from the custodial parent, John Mark Calhoun, to her. Appellant, noting that the court found that she established a material change in circumstances, argues that the court erred when it “failed to find that all those changes had an [e]ffect on the best interest of the child.” Because we conclude that the court failed to determine whether the material change in circumstances affected the best interest of the child, we reverse and remand for further proceedings.

In a decree entered October 3, 1995, the parties were divorced and granted joint custody of their only child. However, in a decree entered May 22, 1997, custody was transferred to appellee. On December 19, 2001, appellant filed a petition for a change of custody, alleging that since the previous change of custody, there had been a significant change in circumstances and that best interest of the child necessitated that custody be transferred to her. Particularly, appellant noted that appellee had divorced his second wife and married his third and that he had been placed on administrative leave by the Pine Bluff Police Department because of inappropriate conduct, news of which was published in the newspapers. She concluded that these “circumstances are not conducive to a stable and happy home life for the minor child.”

Hearings on the petition were held on August 27 and November 14, 2002. At the first hearing, appellant presented the testimony of appellee, who at that time was employed as a police officer. He testified that since the 1997 custody hearing, he had divorced his second wife, having separated in October of 1998, and on May 18, 2001, married his third wife. Appellee admitted that in December of 2001 he had been demoted in rank and suspended for thirty days without pay for conduct unbecoming an officer, abuse of position, and dishonesty, because, in November of 2001, while on duty, he had sexual relations with the wife of a deputy he was supervising. Also, at that hearing, the director of children’s studies at the Southeast Arkansas Behavioral Health Care System testified that he performed a social evaluation of the parties and that the child wanted to live with appellant.

At the November 14 hearing, appellant further established through appellee’s testimony that he had resigned from the police force and that he and his wife were opening a sports grill. According to appellee, he currently did not have any income, having received his last weekly check of $613 on November 1. Appellee testified that when he left his job, he took a lump-sum payout of his retirement in the amount of $25,000, part of which he would use to start the restaurant. Appellee stated that his restaurant would be open for lunch and dinner, would close about 9:00 p.m. during the week, but would remain open until 10:00 to 11:00 p.m. on Friday and Saturday and would close on Sundays. He further stated that his wife would also run the restaurant and would quit her current job. He estimated that his income would be $400 a week with his wife earning the same amount.¹

In an order filed December 9, 2002, the court concluded that appellant “showed a material change of circumstances in that [appellee] is currently in his third marriage. She also showed a material change of circumstances with [appellee’s] placement on administrative leave and the resulting publicity in the press.” The court also noted that appellant established that appellee was currently unemployed, and the court noted that appellee and his “present wife” would open a business in December, using part of his retirement funds to capitalize the business. The court, however, further stated that “although [appellant] met her threshold burden [of showing a material change in circumstances], she did not show that a modification of the custody order of May 22, 1997[,] would be in the best interest of the child. There was no showing that the third marriage, administrative leave[,] or publicity had an adverse impact on the welfare of the child.” Also, the court found that appellant “failed to show that the employment status of [appellee] is presently having a direct adverse impact on the parties’ child.” The court further concluded that the minor child was “functioning as a normal child” in appellee’s custody. Appellant appealed from that decision, arguing that while the court found that she established a material change in circumstances, the court erred when it “failed to find that all those changes had an [ejffect on the best interest of the child.”

The Arkansas Supreme Court has stated that “the primary consideration in child-custody cases is the welfare and best interest of the children; all other considerations are secondary.” Hamilton v. Barrett, 337 Ark. 460, 466, 989 S.W.2d 520, 523 (1999). Further, the court has stated that “[a] judicial award of custody should not be modified unless it is shown that there are changed conditions that demonstrate that a modification of the decree is in the best interest of the child, or when there is a showing of facts affecting the best interest of the child that were either not presented to the chancellor or were not known by the chancellor at the time the original custody order was entered.” Jones, v. Jones, 326 Ark. 481, 491, 931 S.W.2d 767, 772 (1996). “[C]hild custody is determined by what is in the best interests of the child, and it is not altered absent a material change in circumstances.” Id. at 487, 931 S.W.2d at 770. “The party seeking modification of the child-custody order has the burden of showing a material change in circumstances.” Id. at 491, 931 S.W.2d at 772. Further, “[f]or a trial court to change the custody of children, it must first determine that a material change in circumstances has transpired from the time of the divorce decree and, then, determine that a change in custody is in the best interest of the child.” Lewellyn v. Lewellyn, 351 Ark. 346, 355, 93 S.W.3d 681, 686 (2002).

We conclude appellant is correct in her assertion that the circuit court failed to consider the best interest of the minor child. After the court found that appellant had met her threshold burden of showing a material change in circumstances, the court then stated that appellant did not “show” that a modification would be in the best interest of the child, as she did not “show” that the child had suffered an “adverse impact” by reason of the changed circumstanóes. In doing so, the court failed to apply the two-step analysis described above and as set forth in Lewellyn. After the noncustodial parent has shown a material change in circumstances, rather than requiring the noncustodial parent to then show an adverse impact on the child, the court should weigh these material changes and consider the best interest of the child. Here, the court found there was a material change in circumstances but then placed an additional burden on appellant, that is, a showing of an “adverse impact” on the child, without simply weighing the child’s best interest.

We do not hold, however, that the circuit court should never consider whether there was adverse impact on the child when determining whether a material change in circumstances has occurred. In Taylor v. Taylor, 353 Ark. 69, 110 S.W.3d 731 (2003), the Arkansas Supreme Court addressed the issue of whether the noncustodial parent showed a material change in circumstances. In holding that the noncustodial parent’s evidence was insufficient to constitute a material change in circumstances, the court noted that the noncustodial parent “failed to demonstrate any actual harm or adverse effect.” Accordingly, in some instances it may be the adverse impact on a child that makes a change in circumstances “material.” This is also in keeping with Hollandsworth v. Knyzewski, 353 Ark. 470, 109 S.W.3d 653 (2003). There, the Arkansas Supreme Court held that the custodial parent’s relocation no longer constituted a material change in circumstances, and there was a presumption in favor of relocation, with the noncustodial parent having to rebut the presumption. In that case, the court concluded that there was no material change in circumstances, noting that there was no evidence that the relocation would be detrimental to the children.

Moreover, we do not hold that in making a determination of the best interest of a child, the court cannot consider whether the material change in circumstances had an adverse impact on the child. See Lewellyn, supra (determining the best interest of a child by considering whether a material change in circumstances had a “negative emotional impact” on the child). We hold that once the noncustodial parent has established a material change in circumstances, the court is to weigh the best interest of the child to determine which parent shall serve as the custodian of the child.

Here, the circuit court found that appellant met the first step of the two-step analysis by concluding that there had been a material change in circumstances. However, rather than weighing the best interest of the child, the court required appellant to show that the material change in circumstances had an adverse impact on the child. Thus, in view of the circuit court’s requirement that the noncustodial parent show an adverse impact on the child, or stated differently, that the child must first suffer harm before the court considered the best interest of the child, we must remand the case to the circuit court for further proceedings. Consequently, we reverse and remand for the court to determine, without requiring appellant to establish an adverse impact on the child, whether a change in custody is in the best interest of the child. See Walker v. Torres, 83 Ark. App. 135, 118 S.W.3d 148 (2003) (reversing and remanding where this court found that the circuit court made a misstatement of law in its findings).

Reversed and remanded.

Robbins, Bird, Neal, and Roaf, JJ., agree. Stroud, C.J., and Pittman, Gladwin, and Griffen, JJ., dissent.

1 The dissent makes three assertions of fact to which we must respond. First, the dissent states that appellant is working in the “adult industry.” Any such conduct predated the May 22, 1997, change of custody to appellee,and there was no allegation that appellant engaged in any such conduct after appellee was awarded custody on that date. In fact, the evidence established that appellant had positive changes in her life, with both a stable environment and a stable job. Second, the dissent asserts that “the minor child was also aware of appellant’s promiscuous conduct at her home.” There is nothing in the record suggesting that appellant was engaged in “promiscuous conduct.” The witness quoted by the dissent did not testify that appellant was engaged in “promiscuous conduct,” only that based on what he was told by the minor child, he “wonder[ed]” about appellant’s private life, and that while appellee had a history of relationships with different women, it sounded “like [the] mother might.” However, he further testified that based on what he was told by the minor child, it was “unclear” whether appellant was having a relationship with other men. For her part, appellant testified that both she and one of the three married men mentioned by the minor child had together taken their respective children out to 1-30 Speedway,Wild River Country, and twice to dinner; that the second man was in his sixties and was performing maintenance work on her home; and that the third man was a neighbor in his seventies who walks the neighborhood.Third, the dissent suggests that we are disregarding appellee’s testimony regarding his work hours. Certainly, the circuit court may consider appellee’s testimony on remand and accord it the weight the court deems appropriate. In sum, the dissent appears to labor under the misapprehension that we have remanded for a change of custody. We do not decide that issue here.