Dare v. Frost

540 S.W.3d 281
CourtSupreme Court of Arkansas
DecidedMarch 8, 2018
DocketNo. CV–17–473
StatusPublished
Cited by7 cases

This text of 540 S.W.3d 281 (Dare v. Frost) 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
Dare v. Frost, 540 S.W.3d 281 (Ark. 2018).

Opinions

ROBIN F. WYNNE, Associate Justice

Parrish Dare appeals from an order of the Saline County Circuit Court modifying the visitation awarded to appellee Scott Frost and denying her petition to modify the amount Frost pays in child support. She argues that the circuit court erred in finding that there had been a material change in circumstances that justified modifying Frost's visitation with the parties' child. She also argues that the trial court erred in deciding not to include the increase in the value of Frost's stock portfolio in the calculation of his child-support obligation and deciding not to impute additional income to Frost. We affirm.

While the parties lived in Virginia, they were involved in a relationship that produced one child, R.D. The parties were never married. A Virginia court ordered Frost to pay child support in the amount of $400 per month. The court awarded Frost "liberal visitation" and set a visitation schedule that alternated holidays and gave Frost two weeks in the summer with R.D. After Dare relocated to Arkansas with the child, Frost typically kept the child for three to four weeks during the summer. Frost also began paying $425 per month in child support.

In 2015, Dare began asking Frost to pay additional child support; he declined. During this same period, Dare restricted Frost's visitation to that provided for in the Virginia court order. In February 2016, Frost petitioned to register the Virginia orders in the Saline County Circuit Court. He contemporaneously filed a motion for modification in which he alleged that there had been a change in Dare's "willingness to co-parent" that constituted a material change in circumstances justifying an award of additional visitation with R.D. Dare filed a counterclaim in which she requested a modification of Frost's child-support obligation to reflect his current *283income. The circuit court held hearings on the visitation and child-support issues. Regarding child support, Dare argued that the growth of Frost's stock portfolio should be considered in the calculation of his child-support obligation. Dare also contended that the trial court should impute Frost's income commensurate with his lifestyle. The circuit court subsequently entered an order in which it found that a material change in circumstances had occurred and modified Frost's visitation, increasing summer visitation to four weeks each summer and setting out a schedule for holiday visitation. The circuit court also found that there was insufficient evidence to impute income beyond that reported on his affidavit of financial means and ordered him to pay child support in the amount of $213.00 every two weeks based on his reported bi-weekly income of $1,174.46.

Dare appealed to our court of appeals, which affirmed on the finding of material change in circumstances and reversed and remanded on the issue of child support, with instructions for the circuit court to consider the gains in Frost's stock portfolio as income for child support purposes. Dare v. Frost , 2017 Ark. App. 325, 522 S.W.3d 146. The parties filed competing petitions for review with this court, with Dare seeking review of the portion of the circuit court order on the issue of visitation that was affirmed and Frost seeking review of the court of appeals' decision to reverse and remand on the issue of child support. Dare's petition was denied; Frost's was granted. Because, upon granting a petition for review, we consider the appeal as though it were initially filed with this court, Powell v. Lane , 375 Ark. 178, 181, 289 S.W.3d 440, 442 (2008), all issues raised in the appeal are currently before us.

Visitation

Dare's first argument on appeal is that the trial court erred in finding that Frost had proved a material change in circumstances sufficient to warrant a modification of the existing visitation order. In domestic relations cases, we review the evidence de novo and will not reverse the circuit court's findings unless they are clearly erroneous. Brown v. Brown , 2012 Ark. 89, 387 S.W.3d 159. We also give special deference to the circuit court's superior position in evaluating the witnesses, their testimony, and the child's best interest. Id. Because a circuit court maintains continuing jurisdiction over visitation, it may modify or vacate a prior visitation order when it becomes aware of a material change in circumstances since the previous order. Id. The party seeking modification has the burden of demonstrating such a material change in circumstances. Id. Regarding visitation, the primary consideration is the best interest of the child. Id. Important factors for the court to consider in determining reasonable visitation are the wishes of the child, the capacity of the party desiring visitation to supervise and care for the child, problems of transportation and prior conduct in abusing visitation, the work schedule or stability of the parties, and the relationship with siblings and other relatives. Id. We have held that fixing visitation rights is a matter that lies within the sound discretion of the circuit court. Id.

In its order modifying visitation, the circuit court found that Dare had exposed R.D. to inappropriate circumstances and had been negative toward Frost to such a degree that it caused strain between R.D. and Frost. The testimony at the hearing on visitation was that at some point in 2011, the parties had agreed to modify the visitation schedule to allow Frost more time with R.D. during the summer. He *284was typically given three to four weeks instead of the two specified in the Virginia order. During his testimony, Frost read from an email sent to him by Dare in which she stated that if he did not pay more than was required by the child-support guidelines, she would not do anything outside of the visitation guidelines. Dare repeated that stance in her testimony. Frost testified that in 2015, he was informed that, instead of spending four weeks with him, R.D. would spend two weeks in Virginia and two weeks with a friend of Dare's in Texas. Frost also testified regarding a Thanksgiving visitation when Dare sent R.D.

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Cite This Page — Counsel Stack

Bluebook (online)
540 S.W.3d 281, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dare-v-frost-ark-2018.