Eversole v. Eversole

2015 Ark. App. 645, 476 S.W.3d 199, 2015 Ark. App. LEXIS 720
CourtCourt of Appeals of Arkansas
DecidedNovember 12, 2015
DocketCV-15-296
StatusPublished
Cited by6 cases

This text of 2015 Ark. App. 645 (Eversole v. Eversole) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Eversole v. Eversole, 2015 Ark. App. 645, 476 S.W.3d 199, 2015 Ark. App. LEXIS 720 (Ark. Ct. App. 2015).

Opinion

BART F. VIRDEN, Judge

11 David Eversole appeals the order of the Polk County Circuit Court entered on December 16, 2014, denying his request for modification of the custody agreement set out in the “Parenting Plan” incorporated into the parties’ divorce decree. Specifically, David argues that the circuit court erred in finding that there was no material change in circumstances' to warrant a change of custody or visitation. We disagree, and we affirm.

I. Facts

Rita and David Eversole lived in Georgia when they were divorced in 2012, and the original decree awarding joint custody of their daughter, P.E. (born 2010), was entered there. The original parenting-plan agreement (plan) incorporated into the decree set forth the details of visitation and communication between David and P.E. According to the plan, David was allotted four consecutive days of visitation with P.E. each month, and he was ^required to give Rita no less than fourteen days’ notice when selecting his days. The plan also set forth that “[fjather shall be responsible for transporting the child to and from his parenting time.”

In the “Communication” section of the plan, both parents were given “unlimited telephone and e-mail access to P.E. for reasonable lengths of time at reasonable times of the day.” The plan provided that neither parent would harass or interfere with the other parent or the parent’s time with the child while she was in the physical custody of that parent. The plan also set forth that “[b]oth parents shall make every effort to communicate to ■ the other the safety and well-being of the child when in the other’s possession; • the parents recognizing that'the-child is very young and probably will not initiate a telephone call with the absent parent.”

The section of the plan entitled “Welfare of the Child” set forth that each parent wquld promptly notify the other parent if any medical issues arose and that both parents would have access to any information from medical providers.. The divorce decree provided that P.E. would be covered by David’s health insurance and that Rita would be responsible for any copay-ments. ; David would be responsible for “all other reasonable and necessary expenses not covered by insurance[.]” The decree also set forth that “if a plan provider is available to treat the child and either party voluntarily incurs an out-of-network expense for the child, then that party shall be solely responsible for paying said cost.” The decree provided that if dental insurance became available to either party, he or she would obtain it.

| a When Rita moved to Arkansas shortly after the divorce decree had been entered, communication between David and P.E. becamé problematic. David requested that Rita install the computer programs Tango and Skype, .which would allow David and P.E. to see each other while they talked. Neither program had been required in the plan; however, Rita installed the applications. There were numerous technological issues, and face-time communication between David and P.E. was not always possible.

David filed a motion to modify custody, visitation, and support. Specifically, he requested that the court grant him custody of P.E. for at least half of the year until she began school. Regarding = visitation, David requested that the. circuit court modify the visitation agreement such that P.E, would be with him for the entire summer when she began kindergarten, and he further requested that the circuit court modify the plan to make Rita responsible for half the cost of transportation. David also requested that his child-support obligation be reduced.' Rita filed a motion to dismiss, and'she also filed a motion to have David held in contempt because, she asserted, he had hidden assets during their divorce. 1 She later filed a motion to modify child support.

A hearing on the matter was held on October 29, 2014. Both parties agreed to register the Georgia decree in ’the Pólk County Circuit Court. David testified that, though he signed the plan, they'did not “spend a lot of time’ working on it together.” He testifíéd that taking time off from work was difficult arid that transportation costs were formidable. '

I ¿David also testified that he felt that Rita had interfered with his communication with P.E. and that, though Rita had agreed to install and use the Tango application, she had offered only “unréasonable times” for communication. David testified that he wanted to speak with P.E. between 7:00 p.m. and 8:00 p.m. .three or four times a week,, even if it was while Rita was asleep or at work.

Text messages showing the difficulties concerning David and P.E. talking on the phone and talking via Skype were admitted into evidence. The texts reveal-that some of the conflict arose because David had called at times when-P.E. was engaged in an activity and could not come to the phone. • At other times technical difficulties involving Skype and Tango made it impossible for David to communicate with P.E. in the. manner he preferred.

David testified that he did not think his repeated texts had bothered Rita and that out of the 198 texts requesting to speak with his daughter, he had been allowed to communicate with P.E. only 86 times. David testified that Rita had not always returned his texts immediately and sometimes not at all. David also testified that Rita had tried to set up a Tango-communication schedule with him and that he had refused, though he acknowledged that a schedule would be a good idea.

David also cited his difficulty in adhering to the agreed-upon terms of the plan concerning visitation as a change in circumstances warranting a change in visitation and/or custody. David requested that the court modify the plan to require Rita to bring P.E. to Atlanta, for his visitation and to bear some of the cost. He suggested that Rita could fly with P.E. to Atlanta, paying her own way, and that he would pay the cost of P.E.’s ticket. David testified that one of the reasons he had not had visitation and vacation time with P.E. was |fithat his work schedule was demanding. He testified that he believed Rita had interfered with his visitation and had used “every possible excuse” to keep him from P.E.'

Text messages between the parties concerning visitation were admitted into evidence, Some of the texts show that David had wanted to exercise his visitation on the weekends that Rita was working. David expressed his preference that Rita drive P.E. to Hot Springs or Little Rock to meet him, thus saving him the cost of car rental; however, Rita generally had not been able to accommodate David’s requests because she worked most weekends. Texts from David also showed that he had deferred his August visitation to September in part to save money. Texts showed that when David’s requests for Rita to transport P.E. to a meeting place could not be accommodated, the parties agreed on a future date when Rita could arrange to take off from work. David observed in a text, “Well, I’d rather meet in Little Rock to save me $400.” Texts show that he had sometimes requested that Rita pay his “extra expenses” related to travel. At a much-negotiated juncture, Rita sent a text stating, “I will allow week visitation in Sept. I will allow dates you requested even though they exceed 7 days. I will .deliver/pick up from Hot Springs. The end.

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Bluebook (online)
2015 Ark. App. 645, 476 S.W.3d 199, 2015 Ark. App. LEXIS 720, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eversole-v-eversole-arkctapp-2015.