David Heileman v. Ariel Cahoon

2024 Ark. 164, 699 S.W.3d 85

• Court: Supreme Court of Arkansas
• Decided: October 31, 2024
• Status: Published

Opinion

Cite as 2024 Ark. 164 SUPREME COURT OF ARKANSAS No. CV-22-495

Opinion Delivered: October 31, 2024 DAVID HEILEMAN APPELLANT APPEAL FROM THE POINSETT COUNTY CIRCUIT COURT [NO. 56DR-17-53] V. HONORABLE MARY LILE BROADAWAY, JUDGE ARIEL CAHOON APPELLEE REVERSED AND REMANDED; COURT OF APPEALS OPINION VACATED.

CODY HILAND, Associate Justice

David Heileman appeals from the Poinsett County Circuit Court’s order granting

Ariel Cahoon’s petition for contempt and modification of the custodial arrangement. For

reversal, Heileman argues the circuit court erred in modifying the custodial schedule and

that a preponderance of the evidence failed to support a finding of contempt. Because the

circuit court failed to make the material-change finding necessary to justify a modification

of joint custody, we reverse and remand for further proceedings.

I. Factual Background

In August 2017, Heileman and Cahoon were divorced by decree wherein their

executed “Stipulation and Property, Child Custody and Support Agreement” was merged

and incorporated. Per the agreement, the parties “shall have joint custody of [Minor Child 1 (MC1) and Minor Child 2 (MC2)],1 with [Cahoon] having primary custody and

[Heileman] having secondary custody.”2 Regarding the custodial schedule, the parties’ time

was divided as follows: During the school year, Cahoon would have the children Monday

and Thursday nights, and Heileman would have the children Tuesday and Wednesday

nights, with each parent enjoying alternating weekends. In the summers, the parties agreed

to one week on, one week off. Overall, this split allowed the parties virtually an equal

division of time with their children.

Almost four years later, in August 2021, Cahoon filed a “Petition for Contempt and

for Other Relief, Including a Modification of the Custodial Arrangement Between the

Parties” wherein she asked the court to “modify the prior orders of the court to grant

[Cahoon] full custody of the minor children.” Specifically, Cahoon’s Petition stated, in

pertinent part, the following:

Since the entry of the Decree, there’s been a substantial and material change in circumstances which compels this court to modify the custodial arrangement between the parties. These include but are not limited to the following: [Heileman] is working and living primarily out of State (Kentucky), and is not able to exercise the custodial time he was awarded; even during the time he is in the area, the “back and forth” has been and will continue to be detrimental to the children; and [Heileman] is unable to support the minor children as evidenced by his failure to pay child support as was ordered by the Court. 1 At the time of the original agreement, MC1 was two years old and MC2 was one year old. At the time of the subsequent order on modification, MC1 was almost seven years old and MC2 was five years old. 2 Despite the distinct titles of “primary” custodian versus “secondary” custodian, the parties shared true joint legal and physical custody. “Legal custody” is defined as the authority to make significant decisions on the child’s behalf, including decisions about education, religious training, and healthcare. Black’s Law Dictionary 484 (12th ed. 2024). “Physical custody” is defined as the right to have the child live with the person awarded custody by the court. Id.

2 The circuit court held a hearing in which both Cahoon and Heileman testified. In

Cahoon’s opening statement, she asked the court “that the joint custodial language be

changed to full custody, on Ms. Cahoon’s part, and to visitation, on the part of Mr.

Heileman.” When asked about the current custodial arrangement under which they operate,

the parties both admitted to a deviation from their original agreement––instead of exercising

their time as reflected in the order, they fluctuated on specific days that worked for the

parties on a weekly or monthly basis, depending on their corresponding work or personal

schedules.

When Cahoon was asked, “Have you . . . [tried to] work out any differences, on the

visitation, for the well-being of [the] children?” she responded in the affirmative.3 (Emphasis

added.) To the extent she qualified her concerns with the current schedule, she justified her

request for sole custody as follows:

It was okay in the beginning. And then, as they get older, as schools change, and stuff like that. As, just, life changes, in general, you know, it just gets a lot on them, back and forth, and multiple houses, different rules. You know, it’s hard, just, with the consistency and the stability. But we did the best, to make it work, as we could. It’s just chaotic. They need to know when they’re going somewhere, how long they’re going to be somewhere, something along -- any -- so, it’s just chaos. Nobody ever knows what’s going on. I believe it has a lot of affect, with not knowing who’s picking them up from school, how long they’re going to be somewhere, with the schoolwork, you know, the consistency.

3 “Visitation” has historically been defined as the noncustodial parent’s period of access to the child. See Black’s Law Dictionary 1889 (12th ed. 2024). Because Cahoon and Heileman shared joint physical custody, neither party actually exercised true visitation; they simply divided their parenting time.

3 Despite admitting the summer split worked well, Cahoon maintained her belief that

“a week with Mom, a week with Dad” was not stable enough during the school year. When

asked why she did not believe Heileman should have equal decision-making authority,

Cahoon stated that decisions are always “a huge conversation, back and forth” but admitted

that Heileman has not objected to any decisions about school, medical, or extracurricular

activities. In fact, the children were healthy and doing well academically.

During Heileman’s presentation of evidence, his new job as a traveling surgical

technician was the focus. He testified that after cycling through several other jobs in an

attempt to make his financial ends meet, he made the decision to onboard with the

University of Kentucky for a higher and more consistent influx of income. The manager of

the operating room, Christina Thomas, who is in charge of Heileman’s work schedule,

testified that he typically works “seven days on, five off, or eight days on, six days off” but

that it “really depends on what his custody schedule was.” According to Thomas, at the

time Heileman signed his contract with the hospital, he made his priority known––“he

wants to see his kids as much as he can, so he works as many hours, in the time that he is

here, so that he can still keep his -- you know, his work -- what his contract states he works,

but, also, meet the needs of his home life.” She emphasized the hospital’s willingness to

accommodate his schedule and provide flexibility because they know Heileman lives in

Arkansas to be near his children––which is why he was unwilling to move to Kentucky full

time. Thomas admitted one full week on with the next full week off would not be an issue

for Heileman’s employment.

4 At the conclusion of the hearing, the circuit court took the matter under advisement

before issuing a written order with the following findings:

The Court finds that there has not been sufficient evidence to overcome the presumption of joint custody and therefore the joint custodial arrangement shall remain as is with the Defendant, Ariel Cahoon, remaining the primary physical custodian and the Plaintiff, David Heileman being the secondary custodian.

The Court does find that there has been a change in circumstances sufficient to modify the parties’ custodial schedule due to the Defendant’s out of town work schedule and the fact that the children are now of school age. Due to the children’s need for stability and consistency the parties’ physical custodial schedule shall be as follows:

During the school year, [Heileman] shall have his custodial periods with the minor children from Thursday afternoon when school recesses until Monday morning when school resumes on the second and fourth weekends of the month.

After school recesses for the summer, the parties shall alternate weeks on a seven (7) days on, seven (7) days off basis.

....

The Court further finds that [Heileman] is in contempt for his failure to pay child support in accordance with the Order of the Court. The parties must realize that once their agreements are reduced to a court order, then they are expected to comply therewith or seek court approval of any modification. The Court will defer any sentencing on the finding of contempt for ninety (90) days. [Heileman] may purge himself of the contempt by paying the balance of $17,540.01, which is $13,040.01 in back child support and $4,500.00 in back alimony.

Heileman timely appealed the circuit court’s order, and the court of appeals affirmed.

Heileman v. Cahoon, 2024 Ark. App. 72, 685 S.W.3d 256. Heileman petitioned this court

for review, which we granted. When we grant a petition for review, we treat the appeal as

if it had been originally filed in this court. Russell v. Russell, 2013 Ark. 372, 430 S.W.3d 15.

5 II. Custody

A. Standard of Review

In reviewing domestic-relations cases, this court considers the evidence de novo and

will not reverse unless the circuit court’s findings are clearly erroneous. McNutt v. Yates,

2013 Ark. 427, at 8, 430 S.W.3d 91, 97. A finding is clearly erroneous when the reviewing

court, on the entire evidence, is left with the definite and firm conviction that a mistake has

been made. Stehle v. Zimmerebner, 375 Ark. 446, 291 S.W.3d 573 (2009).

The primary consideration in child-custody cases is the welfare and best interest of

the children, and all other considerations are secondary. Alphin v. Alphin, 364 Ark. 332, 340,

219 S.W.3d 160, 165 (2005). “[C]ustody shall be awarded in such a way so as to assure the

frequent and continuing contact of the child with both parents consistent with . . . [the

welfare and best interest of the child].” Ark. Code Ann. § 9-13-101(b) (Repl. 2020). We

have consistently held that courts should restrict evidence in a modification proceeding to

circumstances arising after entry of the decree. Lewellyn v. Lewellyn, 351 Ark. 346, 356, 93

S.W.3d 681, 686 (2002). Yet we have recognized limited exceptions when there is a

showing of facts affecting the best interest of the child that were either not presented or

were not known by the circuit court when the original custody order was entered. Alphin,

364 Ark. at 340, 219 S.W.3d at 165. Generally, courts impose more stringent standards for

modifications in custody than they do for initial determinations of custody. Id., 219 S.W.3d

at 165. This is to promote stability and continuity in the life of the child and to discourage

the repeated litigation of the same issues. Id., 219 S.W.3d at 165. The party seeking

6 modification has the burden of showing a material change in circumstances. Id., 219 S.W.3d

at 165.

B. Analysis

Here, Heileman argues that the circuit court’s significant modification of the

custodial schedule or parenting time was essentially a de facto modification of custody that

denied him “approximate and reasonable equal division of time with the child[ren].” See

Ark. Code Ann. § 9-13-101(a)(5) (Repl. 2020) (defining “joint custody” in Arkansas).

Therefore, before making such a change, the circuit court was required to find a “material

change in circumstances”––which by its own language, it clearly did not.

As previously stated by this court, the material-change-in-circumstances analysis is

not triggered if neither party seeks an actual change of custody or when there is no issue of

visitation because the parties maintain joint custody. Nalley v. Adams, 2021 Ark. 191, at 6,

632 S.W.3d 297, 301. While this remains true, the facts in Nalley are easily distinguishable

from the facts at hand.

In Nalley, when the agreement regarding custody was made, the mother and father

lived more than two hours away from one another. Despite the living situation, the parties

stipulated to “joint legal custody” with the mother serving as the “primary caregiver.” The

court fashioned a “visitation schedule” after acknowledging that the distance between the

parents’ residences made it difficult for both parties to have adequate time with the child.

Not even a year later, after a hearing on the father’s motion for modification, the court

found a material change of circumstances had occurred on the basis of the father’s relocation

and entered a new order granting the parties equal time. The order stated:

7 [T]he Court has already ordered, and the parties agreed, that they shall have joint legal custody of the child. The only reason in the initial Order that the parties did not share equal time with the child was that [the father] lived in Jonesboro, Arkansas and [the mother] and child lived in Little Rock, Arkansas. Since [the father] has moved to Little Rock, there is no discernable reason why each party could not share equal time with the parties’ [minor child]. The law is clear in Arkansas that joint custody with equal time is favored.

Nalley, 2021 Ark. 191, at 5, 632 S.W.3d at 300.

The mother appealed, and the circuit court’s order was affirmed. Nalley, supra. As an

initial point, the modification sought in Nalley was to have the parents move toward

exercising true joint physical custody rather than, as in this case, a desire to deprive one

parent of the time he or she is currently enjoying with their children. Second, because the

initial determination was agreed-upon “joint custody,” the father simply wanted his physical

custodial schedule to mirror the rights already awarded to him by the court. Contrast that

with Cahoon’s request for a modification reflecting “full” custody, while reducing

Heileman’s time with the children to visitation only.

In Arkansas, one thing is clear––our legislature has determined that joint custody is

favored, with the award of custody being made in accordance with the welfare and best

interest of the child. Ark. Code Ann. § 9-13-101(a)(1)(A)(i) & (iii) (Supp. 2023). And while

an equal division of time is the goal, it is not always possible in light of the relevant facts and

circumstances of the parties. Litigants, lawyers, and circuit courts alike need to understand

the weight an initial custody determination is given––whether agreed on by the parties or

litigated before the court. And when circuit courts are adjusting parenting time, they should

be cognizant of the terminology they use and pay attention to whether an adjustment in

schedule might turn into a de facto change in custody. Moving forward, after an award of

8 joint custody is reduced to a court order, the only way to modify away from joint custody,

absent an agreement of the parties, is by proving both a material change in circumstances and

that the modification is in the best interest of the child. Without making these required

findings, the circuit court essentially eliminated joint custody in this case by reducing

Heileman’s parenting time from 50 percent initially to roughly 26 percent now. While

courts cannot always make the parenting time an even split, the disparity here was too great.

Further, while it is understandable that school and work schedules may change as children

age, the appropriate response of the courts is to seek ways to modify the custodial schedule

consistent with the law, the ability of the parties, and the best interest of the children, rather

than to simply reduce parenting time from roughly half to just two weekends a month, as

was done here.4 5

In this instance, the entirety of the evidence did not support the court’s effective

elimination of joint custody relegating Heileman to visitation only. There was no evidence

presented that an equal or near equal division of time was unworkable or that an equal or

near equal division of time would result in a detriment to the children. With no satisfactory

4 Heileman’s weekend visitation was extended visitation––from Thursday afternoon when school recessed to Monday morning when school resumes––rather than the traditional weekend visitation of Friday afternoon to Sunday evening. 5 For example, while the bifurcated schedule of Monday and Thursday with one parent and Tuesday and Wednesday with the other parent that was adopted before the children began school may have become unworkable now that the children are in school, the parties demonstrated through the summers that they are able to manage a one-week- on, one-week-off parenting time rotation––and the testimony presented at trial was that such a rotation would be feasible with Heileman’s work schedule, as well. While the circuit court is in the superior position to determine precisely what the parenting time schedule should be, it must do so in a way that is consistent with the law and that follows the standards set forth by this court.

9 best-interest analysis and without a material change in circumstances, we are left with the

conviction that the circuit court clearly erred by changing the custodial arrangement.

III. Contempt

As noted above, the circuit court found Heileman in contempt for failure to pay both

alimony and child support as originally ordered. However, the court deferred sentencing

for a period of ninety days to allow Heileman the opportunity to “purge himself of contempt

by paying the balance” in back alimony and back child support. Heileman appealed only

the finding of contempt for alimony. Generally, a finding of contempt is a final, appealable

order. Holifield v. Mullenax Fin. & Tax Advisory Grp., 2009 Ark. App. 280, 307 S.W.3d 608.

However, it must be a final contempt order. Pursuant to Ark. R. App. P. –Civ. 2(a)(13), a

final, appealable contempt order “imposes a sanction and constitutes the final disposition of

the contempt matter.” An order of contempt is not final and appealable when no sanctions

have been imposed. Shafer v. Estate of Shafer, 2010 Ark. App. 476. An order merely

announcing the court’s determination of the rights of the parties, but contemplating further

judicial action, is not appealable. Id.

In the present case, the court has not yet imposed the sanctions for Heileman’s

contempt. While the judgment amount was computed, sanctions have not been determined.

See Allen v. Allen, 99 Ark. App. 292, 259 S.W.3d 280 (2007). Thus, because the contempt

matter is not yet concluded, we cannot address the issue at this time.

Reversed and remanded; court of appeals opinion vacated.

WEBB, J., dissents.

10 BARBARA W. WEBB, Justice, dissenting. Joint custody is defined as the

“approximate and reasonable equal division of time” with the children by both parents. Ark.

Code Ann. § 9-13-101(a)(5) (Repl. 2020) (emphasis added). Here, the circuit court did not

change the award of joint custody but instead simply amended the division of parenting

time based on a change of circumstances––David’s deliberate choice to accept an out-of-

state job. Given the testimony that David’s work schedule was creating difficulties for the

children, I cannot say that the circuit court clearly erred in reducing David’s parenting time.

See Nalley v. Adams, 2021 Ark. 191, at 5, 632 S.W.3d 297, 301. By supplanting the circuit

court’s judgment with its own, the majority needlessly upends an order that has been in

place since 2022 and sends a family back to court.

I dissent.

James & Streit, by: Jonathan R. Streit, for appellant.

Emerson Law Firm, by: Scott Emerson, for appellee.