Fischer v. Smith

415 S.W.3d 40, 2012 Ark. App. 342, 2012 WL 1702071, 2012 Ark. App. LEXIS 458
CourtCourt of Appeals of Arkansas
DecidedMay 16, 2012
DocketNo. CA 11-982
StatusPublished
Cited by7 cases

This text of 415 S.W.3d 40 (Fischer v. Smith) 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
Fischer v. Smith, 415 S.W.3d 40, 2012 Ark. App. 342, 2012 WL 1702071, 2012 Ark. App. LEXIS 458 (Ark. Ct. App. 2012).

Opinion

JOSEPHINE LINKER HART, Judge.

|!Erin M. Fischer appeals from the denial of her petition to relocate to the United States Virgin Islands with her minor child. On appeal, she argues that the trial court erred in denying her permission to relocate because it erred in its application of the law as promulgated in Hollandsworth v. Knyzewski, 353 Ark. 470, 109 S.W.3d 653 (2003), and in making the factual findings that supported its decision. We reverse and remand.

Although we review traditional equity cases de novo, we will affirm the trial court’s findings of fact unless they are clearly erroneous or clearly against the preponderance of the evidence. Hartsell v. Weatherford, 2012 Ark. App. 164, 2012 WL 559951 (unanimous en banc decision). A finding of fact is clearly erroneous when the reviewing court is left with a definite and firm conviction that a mistake has been committed. Id. In reviewing the trial court’s findings, we give due deference to the trial court’s superior position to determine the credibility of the ^witnesses and the weight to be accorded to each witness’s testimony. Id. However, we give a trial court’s conclusions of law no deference on appeal. Id.

This case involves the parties’ minor child, M.S., who was born on June 10, 2008. Subsequently, the parties married on May 16, 2009, and divorced on July 21, 2010. In the divorce decree, appellee Damon Smith’s paternity was acknowledged, and he was awarded visitation with the minor child. On June 20, 2011, Fischer filed a petition for permission to remove the minor child to the Virgin Islands. A hearing was held on Fischer’s petition on August 8, 2011.

Fischer testified that she desired to relocate to the U.S. Virgin Islands because she “ultimately” wanted to advance her career there teaching American Sign Language. Although she admitted that she did not have an employment contract at the time of the hearing, she had made inquiries into employment opportunities in the Virgin Islands. In Fort Smith, she had completed her contracts in two private-tutoring arrangements and did not intend to renew them. She further stated that she would have the support of her father and stepmother, who both live there, as well as her six siblings who regularly visit the beachfront resort that her father owns in St. Croix. Fischer noted that she had no extended family in Arkansas and that although she currently resided in a nice home in Fort Smith, she regarded the $1260 per-month mortgage as “too expensive.” According to Fischer, she had already made living arrangements at her father’s resort while she waited for an apartment. She had enrolled M.S. in a private school, The St. Croix Day School, which offered swimming lessons. She also introduced a printout from the website of the Pointe Dance Academy, a ballet school in |3which she had enrolled M.S. Fischer also made part of the record numerous photographs that showed her desired residence to be a tropical paradise.

Fischer stated that she decided to relocate when Smith went into drug rehab. She claimed that Smith was not exercising his court-ordered visitation. Fischer acknowledged that immediately after Smith left drug rehab, she allowed Smith to stay at her residence “a few nights” because Smith’s mother did not allow him to stay at her house alone. Fischer admitted that she allowed Smith to “hang out” with her and her daughter because she wanted them to work together as parents and she “missed the old Damon.” Nonetheless, Fischer denied resuming an intimate relationship with Smith. Although she readily granted Smith access to M.S., she claimed that it was her practice to hire a babysitter if she could not be in the house when Smith visited.

According to Fischer, Smith was entitled to every-other-weekend visitation, but since Christmas he would call just before the visit was scheduled to start and postpone it until the following weekend. Likewise, he missed many of his court-awarded Wednesday-night visits. Smith ascribed this behavior to his drug problem, but Fischer asserted that it did not change after Smith had gone to rehab. Fischer asserted that Smith had neither a home of his own, nor a vehicle.

Fischer denied that her purpose for moving to the Virgin Islands was an act of retaliation. She admitted that she often failed to respond to Smith’s text messages during the month that she was in St. Croix. However, she described the communication as “harassing.” When confronted with a text that she had sent, “You will now lay in the bed you made,” she |4explained that she meant she would not remain in Fort Smith because Smith was not exercising his visitation. She noted that drugs had ended their marriage, that Smith had an outstanding warrant for hot checks, and that she did not want herself or her daughter to be saddled with Smith’s behavior.

Fischer’s father, Charles Fischer, testified that he owned homes in Oklahoma and Canada as well as in the Virgin Islands. He stated that he spent approximately nine and a half months each year in St. Croix and split the remainder of the time between his other two residences. Charles confirmed that Fischer’s six siblings and their children visited the island twice a year. He also confirmed that Fischer had contacted the Virgin Islands Department of Education and that she had made living arrangements for her and M.S. Charles further testified that he was a licensed pilot and had aircraft available for his use. He expressed his willingness to provide transportation for M.S. to visit her father in Fort Smith.

Smith’s mother, Sheen Klinger, testified that Smith was currently living in her home along with his twenty-seven-year-old brother, Dustin, who “probably” has a drug problem. She stated that she was married, but her husband was “taking a break” in a hotel. According to Klinger, her mother lives in Kansas and visits Fort Smith “three or four times per year.” Smith also has a sister who fives in the area.

Klinger noted that Smith had several jobs prior to entering rehab. She stated that he had a personal automobile, but it was “broken down.” Klinger claimed that she allowed Smith to stay at her house even when she was out of town.

She claimed that Smith’s relationship with M.S. was “great.” According to Klinger, | .¡Smith visited M.S. on Wednesday and every other weekend “as far as I know.” She did not remember him missing a single visit prior to his checking into drug rehab. She also noted that Fischer would transport Smith to her residence so that he could visit M.S. Klinger testified that she personally drug-tested Smith while he was living with her, and “he never failed a drug test.” She admitted that she supposedly drug-tested Smith just prior to his entering drug rehab. When questioned by the court, Klinger also admitted that she had not tested Smith “in a long time because I see him and he’s good.” Klinger stated that, if Fischer was allowed to relocate, she feared that M.S.’s relationship with the Smith side of the family would be compromised.

Smith testified that he opposed the relocation. He admitted to drug use before he checked himself into rehab. His drug of choice was Oxycodone. He claimed that Fischer was also a drug user and tried to induce him to use marijuana with her, but he had refused. He claimed that, after he got out of rehab, he spent every day at Fischer’s house until she left for the Virgin Islands, spending the night four or five days a week.

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Bluebook (online)
415 S.W.3d 40, 2012 Ark. App. 342, 2012 WL 1702071, 2012 Ark. App. LEXIS 458, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fischer-v-smith-arkctapp-2012.