Cite as 2019 Ark. App. 549
Digitally signed by Elizabeth ARKANSAS COURT OF APPEALS Perry Date: 2022.08.08 11:50:57 DIVISIONS III & IV No. CV-19-406 -05'00' Adobe Acrobat version: 2022.001.20169 Opinion Delivered November 20, 2019
APPEAL FROM THE PULASKI CODY WADLEY COUNTY CIRCUIT COURT, APPELLANT FOURTEENTH DIVISION [NO. 60DR-17-366]
V. HONORABLE VANN SMITH, JUDGE
KATIE WADLEY AFFIRMED IN PART; REVERSED APPELLEE AND DISMISSED IN PART
LARRY D. VAUGHT, Judge
The divorce decree entered by the Pulaski County Circuit Court awarded Cody Wadley
and Katie Wadley joint legal custody of their child AW (born October 17, 2016). The decree
further gave Katie primary physical custody and gave Cody visitation, with the parties spending
approximately equal time with AW, and ordered Cody to pay child support. Five months after
the decree was entered, Katie moved to reduce Cody’s visitation and to request that Cody be
ordered to pay back child support. On March 28, 2019, the circuit court entered an order
maintaining the parties’ joint legal custody of AW with Katie serving as primary physical
custodian, but the court reduced Cody’s visitation to every other weekend and one weeknight
a week. The court also found Cody in contempt for failing to pay child support. Cody appeals
the order, arguing that there was no material change of circumstances warranting the modification in visitation, the modification is not in AW’s best interest, and the court erred in
finding him in contempt. We affirm in part and reverse and dismiss in part.
In reviewing domestic-relations cases, appellate courts consider the evidence de novo.
Baber v. Baber, 2011 Ark. 40, at 9, 378 S.W.3d 699, 705. We will not reverse the circuit court’s
findings unless they are clearly erroneous. Id., 378 S.W.3d at 705. Whether the circuit court’s
findings are clearly erroneous turns largely on the credibility of the witnesses, and we give
special deference to the superior position of the circuit court to evaluate the witnesses, their
testimony, and the child’s best interest. Id., 378 S.W.3d at 705.
A circuit court maintains continuing jurisdiction over visitation and may modify or
vacate those orders at any time when it becomes aware of a change in circumstances or facts
not known to it at the time of the initial order. Id., 378 S.W.3d at 705. Although visitation is
always modifiable, to promote stability and continuity for the children and to discourage
repeated litigation of the same issues, courts require more rigid standards for modification
than for initial determinations. Id., 378 S.W.3d at 705. Thus, the party seeking a change in
visitation has the burden to demonstrate a material change in circumstances that warrants such
a change. Id., 378 S.W.3d at 705. The primary consideration regarding visitation is the best
interest of the child. Id., 378 S.W.3d at 705. Fixing visitation rights is a matter that lies within
the sound discretion of the circuit court. Id. at 10, 378 S.W.3d at 705.
Cody’s first point on appeal is that the circuit court clearly erred in finding a material
change in circumstances to support the order reducing his visitation. The circuit court first
found that
the parties, who at the time of the divorce were able to agree on seemingly everything (the divorce was uncontested and the parties agreed on property distribution, debt
2 allocation, custody-and-visitation schedule, and child support), are no longer able to communicate effectively, causing their ability to coparent to bog down.
The court then found that since the decree had been entered, the following circumstances had
changed: (1) the parties had been unable to get along; (2) both parties had moved; (3) Cody
had at least two girlfriends either live with him or stay the night a considerable amount of time,
and he was allowing these women to step into a “quasi-step-parenting role rather quickly and
without discussion with Katie”; (4) Cody allowed his ex-girlfriend, Whitney Sims, to watch
AW “the majority of the time” during his visitation; (5) Cody allowed his new girlfriend,
Allison Lester, whom he had not been dating long, to pick up AW at exchanges; (6) Cody was
smoking marijuana while AW was in his care, and while Cody claimed he had stopped smoking
marijuana in December 2018, he tested positive for marijuana the day of the hearing, which
was forty-five days later, and there was evidence that the specimen had been diluted; (7) Cody
had changed jobs; and (8) Cody had been diagnosed with cancer and is undergoing treatment.
The court found that while these circumstances considered alone may seem “minor,” “the
culmination of the changes is significant and is sufficient to convince the Court that there has
been a material change in circumstances affecting the child’s best interest sufficient to warrant
a modification in [Cody’s] visitation.” We cannot say that the circuit court clearly erred in
finding a material change in circumstances.
At the hearing, Katie stated that since the divorce, she and Cody no longer
communicate well and that they do not get along. She testified about disputes that arose (1)
over a custody exchange during the Thanksgiving holiday; (2) when Katie confronted Cody
about his marijuana use and voiced her opposition to it; he admitted his marijuana use but told
her he would not give it up and that they would “settle it in court”; (3) when Katie asked Cody
3 if she could keep AW while Cody was in the hospital for cancer treatment, he refused; (4)
when Katie asked Cody who was keeping AW when Cody was not caring for him, Cody
refused to tell her; and (5) when Katie asked Cody about Allison and how much time she was
spending with AW, Cody refused to answer.
Significantly, Cody admitted that he and Katie “have a lot of communication faults
between” them. He testified about another dispute that arose between the parties—which was
cited in the circuit court’s order—over whether to apply the day-care or school-district
schedule for the custody exchange during the Christmas holiday. This dispute required the
involvement of the parties’ attorneys. While the circuit court cited only one example of the
parties’ inability to get along in its order, under our de novo review we consider all the
examples.
Katie also testified that Cody has had “numerous” girlfriends since the divorce decree
was entered and that he had been letting his girlfriends take care of AW. Whitney corroborated
Katie’s testimony. Whitney stated that she took care of AW 90 to 95 percent of the time Cody
had custody of AW. Whitney testified that Cody “would pick [AW] up from daycare or pick
him up from Katie and just give him to me. And then he would go to the gym or go hang out
with friends or disappear. So I had [AW] alone most of the time.”
Katie stated that Cody lists the women he dates as people authorized to pick up AW
from day care. Katie stated that Cody had been dating Allison only a month or a month and a
half when he placed her name on the day care pickup list. 1 This evidence was not disputed by
1We note that the circuit court’s finding that Cody sent Allison to pick up AW at
exchanges is not supported by the evidence in this case. It appears that the circuit court confused the testimony about the daycare pick-up with the testimony about custody exchanges. 4 Cody, and it was not disputed by Allison, who attended the hearing but did not testify. Katie
said Allison is nineteen years old, barely knew AW or Cody at that time, and should not have
been allowed to pick up AW from daycare.
Katie testified that after the divorce, Cody had overnight romantic guests while AW
was in his care, which is prohibited in the divorce decree. 2 Cody testified that he had not had
any overnight romantic guests after the divorce decree was entered. However, Katie’s
testimony was supported by Whitney, who testified that after Cody’s divorce, she and Cody
spent the night together when Cody had custody of AW. She said, “He stayed at my house
and I stayed at his house as well.” Whitney further stated that Cody would lie to Katie when
Whitney was staying the night and “act like [Whitney] wasn’t there.”
Arkansas appellate courts have held that extramarital cohabitation in the presence of
children “has never been condoned in Arkansas, is contrary to the public policy
of promoting a stable environment for children, and may of itself constitute a material change
of circumstances warranting a change of custody.” Alphin v. Alphin, 364 Ark. 332, 341, 219
S.W.3d 160, 165–66 (2005) (citing Word v. Remick, 75 Ark. App. 390, 396, 58 S.W.3d 422, 427
(2001); Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d 520 (1999); Taylor v. Taylor, 353 Ark. 69,
80, 110 S.W.3d 731, 737 (2003) (noting that the supreme court has held that “a parent’s
unmarried cohabitation with a romantic partner, or a parent’s promiscuous conduct or
2The decree states, “Neither party shall allow overnight romantic guests during their
custodial time with the child.” The purpose of the overnight-guest order is to promote a stable environment for the children and is not imposed merely to monitor a parent’s sexual conduct. Taylor v. Taylor, 345 Ark. 300, 304, 47 S.W.3d 222, 225 (2001) (citing Campbell v. Campbell, 336 Ark. 379, 389, 985 S.W.2d 724, 730 (1999)). 5 lifestyle, in the presence of a child cannot be abided”); Taylor v. Taylor, 345 Ark. 300, 47 S.W.3d
222 (2001)).
Finally, Katie testified that Cody smokes marijuana while AW is in Cody’s care.
Whitney confirmed this when she testified that Cody smoked marijuana on a regular basis
while AW was in the home. Cody admitted smoking marijuana. In direct response to
questioning by the circuit court, Cody said that he had not smoked marijuana since December
2018 or the beginning of 2019 and would “most likely be clean,” he had “never failed a drug
test,” and if he was tested that day, “[he] should be fine.” However, Cody tested positive for
THC the day of the hearing—more than forty-five days after he allegedly last smoked
marijuana—and there was evidence that the specimen Cody provided had been diluted. See
Stone v. Steed, 54 Ark. App. 11, 15–16, 923 S.W.2d 282, 284–85 (1996) (affirming material-
change-of-circumstances finding where there was evidence of drug use by the appellant and
individuals in her home while appellant had custody of her child).
In this case, the circuit court did not believe Cody when he testified that he had quit
smoking marijuana or that he had no overnight guests after the divorce decree was entered.
The court also rejected Cody’s primary argument asserted at trial and on appeal that Katie’s
only motive for filing to modify his visitation was to retaliate against him for dating Allison.
Instead, the court believed Katie and Whitney when they testified that Cody was routinely
using drugs during AW’s visitation and that Cody regularly had at least one overnight guest in
violation of the divorce decree. The court believed Katie when she testified that she and Cody
do not communicate well or get along and that Cody had placed his new girlfriend’s name on
the day care pickup list.
6 Cody acknowledges in his appellate brief that “Whitney’s testimony was clearly
important to the [circuit] court,” yet he asks this court to reweigh her testimony in his favor.
He also argues that the circuit court mischaracterized his testimony about his marijuana use,
claiming that he admitted he might have residual marijuana in his system. He asserts that he
should not be faulted for the parties’ inability to communicate about the Christmas holiday-
exchange language in the decree because the court admitted the language in the decree was
“unclear.” He argues that Katie’s complaints against him are “petty.” All these arguments ask
us to reweigh the evidence and make credibility findings in Cody’s favor. This we cannot do.
Raymond v. Kuhns, 2018 Ark. App. 567, at 10, 566 S.W.3d 142, 148.
We will not substitute our judgment for that of the circuit court, which observed the
witnesses first-hand. Riddick v. Harris, 2016 Ark. App. 426, at 5, 501 S.W.3d 859, 865. There
are no cases in which the superior position, ability, and opportunity of the circuit court to
observe the parties carry a greater weight than those involving the custody of minor children,
and our deference to the circuit court in matters of credibility is correspondingly greater in
such cases. Id., 501 S.W.3d at 865. Having considered the evidence, the circuit court’s
credibility findings, the weight given to the evidence by the court, and our de novo review, we
affirm the circuit court’s finding that a material change of circumstances supported the
modification of visitation.
Cody’s second point on appeal is that the circuit court clearly erred in finding that the
modification of visitation was in AW’s best interest. He points to Katie’s testimony that she
had no evidence that Cody had done a poor job raising AW in terms of discipline, food,
clothing, and cleanliness. And while Katie testified that she had observed AW’s biting, hitting,
and throwing tantrums after visiting Cody, he points out that she also testified that she did not 7 have any evidence to support that claim and that Cody’s father and his father’s fiancée testified
that they had not observed that behavior from AW.
Again, Cody’s best-interest argument asks us to reweigh the evidence in his favor,
which we cannot do. Raymond, 2018 Ark. App. 567, at 10, 566 S.W.3d at 148. The circuit court
believed Katie and Whitney and found that the modification of visitation was in AW’s best
interest due to Cody’s drug use while AW was in his custody, his having at least two girlfriends
in a five-month period after the divorce, his having at least one of them stay overnight in
violation of the decree, his leaving AW in the care of a girlfriend 90 to 95 percent of the time
he had custody, and his authorizing new girlfriends to pick up AW from day care. A custodial
parent’s use of drugs is a proper factor for the court to consider when determining the best
interest of the child. Rector v. Rector, 58 Ark. App. 132, 138, 947 S.W.2d 389, 392 (1997).
Extramarital cohabitation in the presence of the children is a significant factor in determining
where the best interest of the children requires them to be placed. Word, 75 Ark. App. at 396–
97, 58 S.W.3d at 427.
While Cody offered denials and explanations for his behavior, the court did not believe
him. Further, the evidence is undisputed that Katie does not use drugs or have overnight
guests and that she has a home, a job, and family nearby. Accordingly, we hold that the circuit
court did not clearly err in finding that modification of Cody’s visitation was in AW’s best
interest.
For his third and final point, Cody argues that the circuit court clearly erred in finding
him in contempt for nonpayment of child support. 3 He claims the finding is clearly erroneous
3On appeal, Cody does not challenge the circuit court’s $1,924 judgment against him
for back child support or the $98-a-week child-support award. 8 because Katie never filed a motion for contempt on the back child-support issue and because
he was not on notice that he would be defending against such contempt. We will not reverse
a circuit court’s finding of civil contempt unless that finding is clearly against the
preponderance of the evidence. Balcom v. Crain, 2016 Ark. App. 313, at 4, 496 S.W.3d 405, 408.
Arkansas Code Annotated section 16-10-108(c) (Repl. 2010) provides that
“[c]ontempts committed in the immediate view and presence of the court may be punished
summarily. In other cases, the party charged shall be notified of the accusation and shall have
a reasonable time to make his or her defense.” Cody’s alleged contempt is not the type that
can be punished summarily; therefore, he was entitled to notice of the contempt accusation
and a reasonable time to defend it. He did not receive such notice because Katie did not file a
motion for contempt on the issue of the child-support arrearages. In fact, at the beginning of
the hearing, Katie’s attorney stated to the court that Katie did not wish to request contempt
for Cody’s failure to pay child support. Therefore, we hold that the circuit court clearly erred
in finding Cody in contempt, and we reverse and dismiss the contempt finding.
Affirmed in part; reversed and dismissed in part.
GRUBER, C.J., and HARRISON and MURPHY, JJ., agree.
VIRDEN and SWITZER, JJ., dissent.
MEREDITH B. SWITZER, Judge, dissenting. I agree with the majority that the
circuit court erred in holding Cody in contempt for failure to pay child support. However,
I would reverse the circuit court’s decision regarding custody/visitation because many of
the findings of fact the circuit court cites as establishing a material change in circumstances
are clearly erroneous.
9 As an initial matter, while the circuit court states in its order that Katie and Cody
would continue to share joint legal custody of AW, the circuit court’s order effectively gives
Katie primary physical custody of AW. Joint custody, which is favored in Arkansas, is
defined by statute as “the approximate and reasonable equal division of time with the child
by both parents individually as agreed by the parents or as ordered by the court.” Ark. Code
Ann. § 9-13-101(a)(5) (Repl. 2015). While Katie and Cody agreed in their divorce decree
to joint custody, the circuit court’s March 2019 order significantly reduced Cody’s time
with AW from an approximately equal division of time to every other weekend, one
additional night per week, two weeks in the summer, and specified holiday visitation. To
call this arrangement “joint custody” is a legal fiction. To be certain, both parties
characterize the decision as a change in custody instead of simply a modification in visitation.
Although the standard of review is the same for both a change in custody and modification
in visitation, the drastic result is not supported by the evidence in this case, especially as it
relates to the best-interest-of-the-child analysis.
Remember, also, that Katie bears the burden of proving a material change of
circumstances in this case because she is the party seeking to modify the agreed custody
order. Ellington v. Ellington, 2019 Ark. App. 395, 587 S.W.3d 237. The standard for
modifying custody is higher than it is for an initial determination of custody in order to
promote stability and continuity in the life of the child and to discourage repeated litigation
of the same issues. Id.
Contrary to the majority’s assertion, I do not challenge the credibility the circuit
court afforded the witnesses. I respect the deference given to the circuit court in these
10 matters. I am left, however, with a firm conviction that a mistake was made and would
reverse because the circuit court made specific findings of fact of a material change in
circumstances, several of which are not supported by the evidence.
I. Changed Circumstances
(1) The circuit court found that the parties were “no longer able to communicate
effectively, causing their ability to coparent to bog down.” Although the majority cites
several instances where Katie alleged she and Cody did not communicate well, the circuit
court cited only one instance of the parties’ inability to communicate effectively—that is,
their disagreement over the Christmas-visitation schedule. The circuit court specifically
noted that the Christmas-visitation provision was “admittedly unclear.” If the provision is
admittedly unclear, and the parties relied on the advice of their respective attorneys — each
of whom gave different interpretations of the provision — it does not follow that this one
disagreement equates to an inability to communicate and coparent effectively. “Petty
complaints and parental gamesmanship may not rise to the level of a material change in
circumstances, especially if the child is left relatively unscathed.” Geren Williams v. Geren,
2015 Ark. App. 197, at 13, 458 S.W.3d 759, 767 (citing Hart v. Hart, 2013 Ark. App. 714).
The circuit court did not cite any other instances evidencing an inability to effectively
communicate, and there was no evidence that AW was affected by this one visitation
disagreement or any of the instances proffered by Katie.
(2) The circuit court also found that “since the parties’ divorce, Cody has had at least
two different girlfriends either live with him or stay overnight a considerable amount of
time” and appeared to move his girlfriends into a “quasi-step-parenting role” rather quickly.
11 There is no evidence in the record that any girlfriend lived with Cody during this time. The
evidence showed that one girlfriend, Whitney Sims, spent the night with Cody while AW
was present. Even if Sims was correctly classified as filling a “quasi-step-parenting” role,
there was simply no evidence of any other girlfriend filling that role. Katie alleged that
Allison Lester was fulfilling that role, but she—as the person who bore the burden of proving
a material change in circumstances—presented no evidence to that effect.
(3) Likewise, the circuit court found there was “undisputed testimony” that Cody
started sending his new girlfriend alone to pick up AW at exchanges. There is no evidence
to support this finding. Although Katie did allege that Lester was on the daycare pick-up
list as an approved person, this self-serving allegation was not supported by any independent
evidence, such as a daycare worker or a pick-up log. In fact, Katie testified that she did not
know Lester and did not know whether Lester had ever picked up AW from daycare. The
majority states that Lester was at the hearing and that Cody should have called her to refute
this allegation. Does this not shift the burden to Cody to disprove a material change in
circumstances? Katie subpoenaed Lester. Katie did not call Lester to support her claim, yet
she has the burden of proof. Regardless, Katie’s singular allegation that Lester was on the
daycare pick-up list is not evidence that Cody sent his girlfriend alone to pick up AW at
exchanges. Today, the majority has allowed unsubstantiated allegations to take the place of
proof in changing custody. Katie, as the moving party, had the burden of proof, and her
mere allegations, without proof, do not equate to a material change in circumstances
sufficient to deprive Cody of joint custody and equal time with AW. Katie even admitted
in her testimony that she had accused Cody of sexually abusing AW without any evidence
12 to support that allegation. Although Katie admitted there was no proof to support this
particular allegation, the fact that she so freely wielded this claim underscores the danger of
allowing unsubstantiated accusations to take the place of actual proof.
(4) The circuit court found that “Cody felt confident he would test negative for
marijuana,” and the results of the drug test he took on the day of the hearing contradicted
his testimony on that point. This finding is contrary to the evidence. Cody never said he
was confident he would test negative; in fact, he said that he might still have some residual
marijuana in his system, even though he had stopped smoking marijuana two months prior.
Essentially, the circuit court found that Cody lied about his use of marijuana. Cody was
candid with the circuit court and even admitted that he might have residual amounts of
marijuana in his system from his prior use. This is not a situation where the court afforded
little or no weight to Cody’s testimony. The court made a finding that was in direct
contradiction to the evidence. Yet this appears to matter not to the majority.
The circuit court expressly states in its order that each instance, when taken alone,
seems minor, but the culmination of the changes is sufficient to constitute a material change
in circumstances. If several of the independent instances, which the court concedes are
minor, are in fact erroneous and not supported by the evidence, they cannot logically form
the basis of a culminating material change in circumstances. The circuit court’s finding of
a material change of circumstance is based in large part on factual errors. I am therefore left
with a firm belief that the court’s finding was clearly erroneous. Because many of the circuit
court’s findings are clearly erroneous, I cannot, as the majority does, give them deference as
13 I would regarding weight afforded to witness testimony and credibility. To hold otherwise
would render appellate review of these types of determinations meaningless.
II. Best Interest
Even assuming there was a material change in circumstances—a fact I do not
concede—Katie did not prove that it was in AW’s best interest to change custody or
drastically reduce Cody’s visitation. The court must consider both. Cody did test positive
for marijuana, which he claimed was residual, and he did admit to having Sims as an
overnight romantic guest. However, there was no evidence that in the short time between
the joint-custody agreement and the circuit court’s change of that custody— approximately
five months total—these two issues had any negative impact on AW. To the contrary, Katie
conceded there was no evidence she could present to show that Cody neglected taking care
of AW or failed to take care of AW’s needs, even though Cody had been diagnosed with
cancer in October 2018 and was undergoing treatment. Considering there was no proof
that changing custody was in AW’s best interest, there were far less drastic measures the
court could have employed to ensure Cody’s compliance with the agreed order. For
example, even where a custodial parent willfully violates court orders, a court’s contempt
power should be used prior to the more drastic measure of changing custody. Geren
Williams, supra. Less than five months after the parties agreed to joint custody, immediately
after Katie learned Cody was dating Lester, she moved to reduce Cody’s visitation and
modify custody. There was no attempt to use contempt powers to force Cody’s compliance
with the divorce decree regarding the prohibition of romantic overnight guests while AW
was in his custody. There was no attempt to clarify the parties’ visitation schedule to
14 alleviate confusion. Moreover, the only proof of overnight romantic guests came from
Sims, whose relationship with Cody admittedly ended in June 2018. So while Cody may
have demonstrated poor decision making in the past, the only proof presented was that the
issue had been remedied well before the hearing. Ellington, supra. In no instance did Katie
offer proof that AW was in any way negatively affected. I cannot see how drastically
reducing Cody’s physical custody from sharing equal time with Katie to standard visitation
less than a year after the parties agreed to joint custody, without any proof of a negative
impact on AW, is in AW’s best interest. I believe the circuit court was clearly erroneous in
making such a change, and therefore dissent.
VIRDEN, J., joins this dissent.
Mann & Kemp, PLLC, by: Harrison Kemp, for appellant.
Brown Law Firm, Rebecca Brown, P.A., by: Rebecca Brown, for appellee.