Cite as 2021 Ark. App. 211 Elizabeth Perry ARKANSAS COURT OF APPEALS I attest to the accuracy and integrity of this document DIVISIONS III AND IV 2023.06.27 11:37:35 -05'00' No. CV-20-368 2023.001.20174 Opinion Delivered May 5, 2021 EMILY ARMSTRONG APPELLANT APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, V. FIFTEENTH DIVISION [NO. 60DR-16-2368] MARTEL DRAPER APPELLEE HONORABLE RICHARD MOORE, JUDGE
AFFIRMED
N. MARK KLAPPENBACH, Judge
Appellant Emily Armstrong and appellee Martel Draper share one child, AAD, born
in 2016. 1 Armstrong appeals from an order of the Pulaski County Circuit Court prohibiting
her from relocating to Colorado with AAD. On appeal, she argues that the circuit court
improperly shifted the burden to her and erroneously found that relocation was not in
AAD’s best interest. We affirm.
Pursuant to an order entered in April 2017, the parties were awarded joint legal
custody of AAD with Armstrong being the primary custodian. Once AAD turned one year
old, Draper was awarded visitation that amounted to two days a week and other times by
agreement of the parties. In June 2017, Draper filed a petition seeking to prohibit
1 Armstrong’s brief refers to the child as AEA; however, both parties testified that the child’s last name was hyphenated AA-D pursuant to a prior court order, and we referred to him as AAD in our prior opinion cited below. Armstrong from relocating to Colorado Springs with AAD. A hearing was held in
December 2017 after which the court entered an order prohibiting Armstrong’s relocation.
Armstrong appealed the order to this court and argued that the circuit court had erroneously
analyzed the case as a joint-custody arrangement pursuant to the requirements set out in
Singletary v. Singletary, 2013 Ark. 506, 431 S.W.3d 234. We agreed that the parties did not
share joint custody and that the case should instead be analyzed pursuant to Hollandsworth v.
Knyzewski, 353 Ark. 470, 109 S.W.3d 653 (2003), which sets forth a presumption in favor
of relocation for custodial parents with primary custody. Accordingly, we reversed and
remanded for the circuit court to apply the Hollandsworth presumption. Armstrong v. Draper,
2019 Ark. App. 114, 571 S.W.3d 60.
On remand, the court based its ruling on the record from the December 2017 hearing
and letter briefs filed by the parties. The court found that Draper had rebutted the
presumption in favor of relocation and that the relocation was not in AAD’s best interest.
Accordingly, the court again entered an order prohibiting Armstrong from relocating with
AAD. Armstrong now appeals from this order.
The following relevant testimony was given at the December 2017 hearing.
Armstrong testified that when she became pregnant with AAD, her mother moved from
Colorado to live with her in Little Rock to help her during and after the pregnancy. Her
mother now wanted to move back to Colorado Springs, and Armstrong wanted to move
with her. She said that it was a fourteen-hour drive from Little Rock. Armstrong said that
her mother had provided care for AAD, who was sixteen months old at the time of the
2 hearing, while both Armstrong and Draper worked. Armstrong did not know if her mother
would move in the event the court prohibited Armstrong from relocating with AAD.
In addition to the support of her mother, Armstrong said she would also have the
support of an aunt, an uncle, and cousins who live in Colorado Springs, although they had
not yet met AAD. Armstrong had full-time employment lined up in Colorado as a makeup
artist with MAC Cosmetics starting in March 2018. She had recently started working part
time for MAC Cosmetics in Little Rock and also worked part time at a restaurant. She was
currently making sixteen dollars an hour with MAC and believed she would earn the same
or more in Colorado. She agreed on cross-examination that the job she was planning to
take in Colorado was essentially a job that was available to her in Arkansas. Armstrong had
not yet made living arrangements or daycare arrangements, although she said that her family
could at least initially provide childcare. She said that she had explored educational
opportunities for AAD in Colorado, and there were “great” opportunities.
Armstrong said that she is not able to rely on Draper for financial assistance because
he misses child-support payments and had not made a payment in the preceding four
months. At the beginning of the hearing, the parties stipulated that there was a total
arrearage of $2427.87. Armstrong said that she is the parent who primarily took AAD to
doctor’s appointments, and she planned his meals and activities for his time in Draper’s care.
She said there had been times when Draper had not exercised his full visitation, such as
when he returned AAD to her care early because AAD was sick. Draper also requested that
Armstrong pick up AAD early one night when he was having a hard time with him at
bedtime. Armstrong said that AAD had been returned to her care smelling of smoke and
3 with diaper rash that she believed was caused by leaving him in a dirty diaper for too long.
She said that she had addressed these issues with Draper, but they still occurred and caused
her concern about Draper’s having extended periods of visitation. She said that Draper has
spent time with AAD on nonvisitation days and that when AAD is in her care, Draper
consistently checks in on him to make sure he is okay.
Regarding Draper’s visitation if she is allowed to relocate to Colorado, Armstrong
testified that she could commit to flying back to Arkansas with AAD once a year for two
weeks and that Draper could fly to Colorado once a year for however long he would like.
She said that they could agree to additional visitation and split the travel costs if child support
was up to date. Armstrong felt that AAD was too young to have visitation over the whole
summer and preferred the length of Draper’s visitation to increase as AAD gets older.
Armstrong said that she may fly back to Arkansas more than once a year, noting that she has
family in Arkansas, but she could commit to only once a year at this time.
Draper testified that he objected to Armstrong’s proposed relocation because
Colorado Springs is too far away, and it is in AAD’s best interest for his father to help raise
him. Draper said that it is important for him to have a meaningful relationship with AAD,
which the current visitation schedule allowed for, and that his visitation upon relocation
would be significantly less. Draper said that Armstrong has not allowed him to have
additional visitation beyond his forty-eight-hour period each week. He said that he has
requested multiple times to pick up AAD for the day while Armstrong is working, but she
has never allowed it. The reason Armstrong gave him for denying the request on one
occasion was that her mother likes spending time with AAD. Draper said that Armstrong
4 would tell him that he could come by her home and visit AAD, but he claimed that she
does not communicate this offer until late in the day and it does not work out. Draper said
that his parents, siblings, and other family members live in Arkansas, and AAD knows them
all. He said that AAD is happy to see members of his family, who are often around during
Draper’s visitations, and that relocation would negatively affect those relationships.
Draper testified that he had been laid off in March 2017 and was not currently
employed, but he anticipated starting a position soon. He said that he had been living off
credit cards and had received help from his family. Draper said that he had provided AAD
with everything he needs at his home and had managed to pay his child support for February
through August 2017, although some payments were late. He was now asking the court to
reduce his child-support obligation due to his unemployment.
Laquita Freeman, Draper’s sister, testified that their family has a close relationship
with AAD. She said that she tries to see AAD every time Draper has him for visitation.
She denied that this is because Draper cannot care for him on his own; instead, she said that
because they cannot drop by and see AAD whenever they want, Draper’s visitation days are
very valuable to the family. Freeman said that a relocation to Colorado would have an
adverse effect on the family’s relationships because it is too far for the family to drive to see
him frequently, and some family members will not be able to afford the travel to Colorado.
In reviewing child-custody cases, we consider the evidence de novo, but we will not
reverse the circuit court’s findings unless they are clearly erroneous or clearly against the
preponderance of the evidence. Raymond v. Kuhns, 2018 Ark. App. 567, 566 S.W.3d 142.
A finding is clearly erroneous when, although there is evidence to support it, the reviewing
5 court is left with the definite and firm conviction that a mistake has been made. Id. We
give due deference to the superior position of the circuit court to evaluate and judge the
credibility of the witnesses, and this deference is even greater in cases involving child
custody, as a heavier burden is placed on the circuit court to utilize to the fullest extent its
powers of perception in evaluating the witnesses, their testimony, and the best interest of
the children. Id. It is well settled that the primary consideration is the welfare and best
interest of the child, while other considerations are merely secondary. Id.
In Hollandsworth v. Knyzewski, 353 Ark. 470, 109 S.W.3d 653 (2003), the supreme
court announced a presumption in favor of relocation for custodial parents with sole or
primary custody. The noncustodial parent has the burden to rebut this presumption, and
the custodial parent no longer has the responsibility to prove a real advantage to herself or
himself and to the children in relocating. Hollandsworth, supra. The polestar in making a
relocation determination is the best interest of the child, and the court should take into
consideration the following matters: (1) the reason for the relocation; (2) the educational,
health, and leisure opportunities available in the location in which the custodial parent and
children will relocate; (3) the visitation and communication schedule for the noncustodial
parent; (4) the effect of the move on the extended family relationships in the location in
which the custodial parent and children will relocate, as well as Arkansas; and, (5) the
preference of the child, including the age, maturity, and the reasons given by the child as to
his or her preference. Id.
The circuit court discussed the above factors before concluding that Draper had
rebutted the presumption and that relocation was not in AAD’s best interest. The court
6 first found that Armstrong had “failed to provide a credible reason to relocate.” The court
noted that Armstrong would have the same employer with substantially similar pay; that
there was no testimony that Armstrong’s mother would relocate to Colorado if Armstrong
did not relocate; and that Armstrong had not made living arrangements in Colorado.
Regarding the educational, health, and leisure opportunities in Colorado, the court found
that there was no testimony regarding AAD’s prospective schools, doctors, or leisure
activities beyond Armstrong’s testimony that there were “great” educational opportunities.
On the third factor, the visitation and communication schedule for the noncustodial parent,
the court found that, considering the significant distance and Armstrong’s testimony
regarding proposed visitation for Draper, allowing the relocation would effectively deprive
Draper of any meaningful contact with AAD and impair his ability to sustain a significant
relationship. Regarding the effect of the move on the extended family relationships, the
circuit court found that both Draper and his sister testified that relocation would drastically
reduce visitation with Draper’s family and would have a detrimental effect on AAD’s
relationship with that side of the family. The court found that Armstrong provided no
significant testimony regarding any effect that a relocation would have on AAD’s maternal
family here or in Colorado. Because AAD was only sixteen months old, the preference
factor was not applicable.
Armstrong argues that instead of applying the Hollandsworth presumption, the circuit
court improperly shifted the burden to her to demonstrate that relocation was in AAD’s
best interest. She first claims that the court erred in finding that she had “failed to provide
a credible reason to relocate.” Armstrong testified that she wanted to relocate to Colorado
7 with her mother and had a job lined up. She agreed on cross-examination that this was
essentially a job available to her in Arkansas; there was no testimony that she could not
obtain full-time employment in Arkansas or that she would be working less hours in
Colorado. 2 However, she was not required to prove that her proposed relocation offered
some material advantage. See Fischer v. Smith, 2012 Ark. App. 342, 415 S.W.3d 40. Because
there was no evidence disputing her reasons for relocating or showing that she had an
improper motive, we do not agree with the court’s finding that she failed to provide a
“credible reason” for relocating. Nonetheless, this is but one factor for the court to consider,
and in considering the evidence de novo and the circuit court’s findings as a whole, we
disagree with Armstrong that this misstatement constitutes reversible error.
Regarding the second Hollandsworth factor, Armstrong argues that it is reversible error
for the court to require her to establish evidence of superior educational, health, and leisure
opportunities in Colorado Springs. The court’s order merely states, however, that there
was “no testimony” on these matters other than Armstrong’s testimony that there were
“great” opportunities.
Armstrong argues that the court’s findings regarding Draper’s visitation and
communication schedule were in error because Draper failed to put on evidence that
reduced visitation would be detrimental to AAD. This court has said that Hollandsworth
presupposes that visitation and communication between the child and the noncustodial
2 Armstrong argues that she testified that she had to work two part-time jobs in Arkansas, which made her schedule difficult because she had to juggle her duties as primary custodian. However, she cites Draper’s testimony that Armstrong denied him visitation even when she was “gone the whole day” working her two jobs. Armstrong did not testify about schedule difficulties in Arkansas or improvements she anticipated in Colorado.
8 parent will be impaired; however, if there continues to be meaningful visitation, the
presumption in favor of relocation is not rebutted. Fischer, supra. The evidence here did
not show a reasonable prospect for meaningful visitation. Draper’s testimony regarding his
financial condition indicates little likelihood that he would be able to make frequent trips
to Colorado, and Armstrong was willing to commit to only one trip a year to Arkansas.
Although Armstrong testified that there were a couple of occasions when Draper had
returned AAD early, he otherwise exercised visitation for a forty-eight-hour period each
week. The visitation schedule provides that Armstrong agreed Draper could have other
reasonable visitation, but Draper testified that he was denied such visitation even when
Armstrong was working. Thus, Armstrong’s testimony that they could agree to other
visitation after her relocation carries little weight. This evidence is in contrast to that in
Fischer, where there was testimony that the father regularly failed to exercise his every-other-
weekend visitation, but the mother proposed visitation at least four times a year and her
father testified that he was a licensed pilot and could transport the child to Arkansas.
Armstrong next claims that Draper failed to rebut the evidence that she would have
family support in Colorado and failed to show that reduced visitation with his extended
family would have a negative effect on AAD. Both Draper and his sister testified that AAD
enjoys his time with Draper’s family and that these relationships would be negatively affected
by the relocation. While the relocation would offer the chance for a relationship with the
family of Armstrong’s aunt and uncle in Colorado, Armstrong testified that her father lives
in Arkansas and that she would be returning to Arkansas to see family. She argues that her
9 mother had been instrumental in AAD’s care, but she also said that she did not know if her
mother would move to Colorado without her.
The polestar in making a relocation determination is the best interest of the child.
Hollandsworth, supra. 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.
Loving v. Loving, 2020 Ark. App. 362, 605 S.W.3d 540. On this record, we are not left
with a distinct and firm impression that the circuit court made a mistake in finding that
relocation was not in AAD’s best interest.
Lastly, Draper testified at the December 2017 hearing that he wanted the court to
set a holiday-visitation schedule because Armstrong had not let him exercise any extra
visitation on holidays. On remand, the court entered a holiday-visitation order, stating that
upon review of the transcript, it determined that it had failed to address a holiday-visitation
schedule in its previous order. Armstrong now argues that there were no pleadings pending
before the court regarding holiday visitation, that the parties had not litigated the issue, and
that the court did not have before it evidence regarding the best interest of AAD. These
arguments were not raised below, however; accordingly, the issue is not preserved for
appeal. Westin v. Hays, 2017 Ark. App. 128, 513 S.W.3d 900.
Affirmed.
GLADWIN, BARRETT, and WHITEAKER, JJ., agree.
VAUGHT and HIXSON, JJ., dissent.
10 LARRY D. VAUGHT, Judge, dissenting. Today’s majority opinion effectively
nullifies the Hollandsworth presumption regarding custodial-parent relocation. While my
colleagues are willing to justify the circuit court’s refusal to apply the Hollandsworth standard
because they believe the circuit court ultimately reached the correct outcome, “the ends
justify the means” is a dangerous judicial philosophy. The Hollandsworth presumption was
established by the Arkansas Supreme Court, and this court is not at liberty to overturn that
decision. Blasingame v. Ark. Dep’t of Hum. Servs., 2018 Ark. App. 71, at 8–9, 542 S.W.3d
873, 878; Metcalf v. Texarkana Sch. Dist., 66 Ark. App. 70, 73, 986 S.W.2d 893, 894 (1999);
Conway v. State, 62 Ark. App. 125, 969 S.W.2d 669 (1998); Nelson v. Timberline Int’l, Inc.,
57 Ark. App. 34, 942 S.W.2d 260 (1997); Cheshire v. Foam Molding Co., 37 Ark. App. 78,
822 S.W.2d 412 (1992); Myles v. Paragould Sch. Dist., 28 Ark. App. 81, 770 S.W.2d 675
(1989).
I dissent and would reverse the circuit court’s denial of Armstrong’s petition to
relocate because the circuit court failed to comply with our mandate. While the court
parroted the language of the Hollandsworth presumption, it erroneously placed the burden
of proof on Armstrong. In Stills v. Stills, the Arkansas Supreme Court rejected an attempt
to negotiate away the Hollandsworth presumption as part of a custody agreement, holding
that “the presumption is, at its core, the establishment of a legal burden of proof to be
enforced by the circuit courts in deciding relocation disputes.” Stills v. Stills, 2010 Ark. 132,
at 9, 361 S.W.3d 823, 829. Armstrong, as the custodial parent, bore no such burden; it was
Draper’s burden to prove that relocation is not in AAD’s best interest. Yet, in the present
case, the circuit court’s analysis of the Hollandsworth factors states that Armstrong “failed to
11 prove” a legitimate reason for the relocation. The court also held it against Armstrong that
there was little or no evidence as to some of the other factors. Had the burden of proof been
properly applied, the absence of evidence regarding any of the Hollandsworth factors should
have weighed against Draper, not Armstrong.
Draper argues that, rather than failing to apply the presumption, the court found that
he had adequately rebutted it. That finding, however, was based on the court’s clear
misapplication of the burden of proof. Moreover, much of the evidence he presented went
to the fact that if Armstrong was allowed to relocate with AAD, it would harm the child’s
relationship with Draper and with Draper’s family. However, we have previously held that
“Hollandsworth presupposes that visitation and communication between the child and the
noncustodial parent will be impaired. However, if there continues to be meaningful
visitation, the presumption in favor of relocation is not rebutted.” Fischer v. Smith, 2012
Ark. App. 342, at 8, 415 S.W.3d 40, 44.
This case is very similar to both Fischer and Hartsell v. Weatherford, 2012 Ark. App.
164. In Fischer, we reversed the circuit court’s denial of a custodial parent’s petition to
relocate, holding that “the trial court improperly shifted the burden to [Fischer] to prove
that her proposed move offered some advantage.” 2012 Ark. App. 342, at 8, 415 S.W.3d at
44. In Hartsell, we reversed the denial of a custodial parent’s relocation petition for the same
reason, explaining:
It was obvious from the trial court’s findings that it improperly required Hartsell to prove that her proposed relocation to California offered some material advantage. This requirement was clearly abrogated by the Hollandsworth court when it overruled Staab v. Hurst, 44 Ark. App. 128, 868 S.W.2d 517 (1994), and its progeny. The trial court’s misapplication of the law was particularly evident when it recited that Hartsell had not proved that opportunities offered by joining the
12 California National Guard and attending UCLA were not available in Arkansas and that the education and leisure activities in southern California were superior to those available in Hot Springs.
2012 Ark. App. 164, at 4.
I dissent from the majority opinion for the reasons stated in Fischer and Hartsell. The
circuit court erroneously placed the burden on Armstrong to prove that there would be
some material advantage to AAD if she relocated with him to Colorado. Without acting as
a fact-finder, which is not our role, it is impossible for us to say that the court reached the
“right result for the wrong reason,” as the majority contends. If Armstrong had been given
the benefit of the Hollandsworth presumption, the outcome of this case would have been
different.
Today’s majority opinion puts our seal of approval on the circuit court’s repeated
refusal to apply the law regarding the relocation of a custodial parent. “Right result, wrong
reason” should never allow us to affirm a miscarriage of justice.
HIXSON, J., joins.
Skarda Law Firm, by: Cecily Patterson Skarda, for appellant.
LaCerra, Dickson, Hoover & Rogers, PLLC, by: Natalie Dickson and Lauren Hoover, for
appellee.