Hollandsworth v. Knyzewski

79 S.W.3d 856, 78 Ark. App. 190, 2002 Ark. App. LEXIS 381
CourtCourt of Appeals of Arkansas
DecidedJuly 3, 2002
DocketCA 01-982
StatusPublished
Cited by9 cases

This text of 79 S.W.3d 856 (Hollandsworth v. Knyzewski) 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
Hollandsworth v. Knyzewski, 79 S.W.3d 856, 78 Ark. App. 190, 2002 Ark. App. LEXIS 381 (Ark. Ct. App. 2002).

Opinions

Kasworth R. Baker, Judge.

Appellant Sheree Holland-sworth appeals the entry of an order by the Benton County Chancery Court that denied her request to relocate out of state with the children and changed custody from her to her ex-husband, appellee Keith Knyzewski. Sheree argues that the chancellor’s decision is clearly erroneous. We agree and reverse and remand.

A chancellor’s decision is reviewed de novo, but the chancellor’s findings will not be reversed unless they are clearly erroneous. See Wagner v. Wagner, 74 Ark. App. 135, 45 S.W.3d 852 (2001). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake was committed. Id. Under these facts, we are left with such a conviction.

The parties divorced on October 10, 2000. There were two children born of the marriage, Ethan, born February 1, 1996, and Katherine, born February 17, 1998. Pursuant to the divorce decree, Sheree had primary custody of the two children. Nonetheless, the parties, subsequent to the entry of the decree, agreed that each would have physical custody of the children one-half of the time until the oldest child entered kindergarten in the fall of 2001. Sheree remarried on December 31, 2000, and planned to relocate with the children to be with her new husband, Brian Hollandsworth, in Clarksville, Tennessee. On January 11, 2001, Keith filed a petition for a change of custody. Sheree filed a response asking for permission to relocate on January 17. The petitions were heard on April 26, 2001, and the judge entered an order granting a change of custody on May 21, 2001.

Keith lived in Rogers, Arkansas, with his parents. He worked nights, and was dependent upon his parents for the children’s care and supervision. When asked whether he would facilitate visitation with Sheree’s side of the family if he prevailed, Keith assured the chancellor that he would encourage it. However, he was concerned that if Sheree’s petition to relocate was granted, the children might have to move from Clarksville eventually due to Brian’s career in the military. He was also concerned that the children would be leaving their family and friends and would have to make new friends in Tennessee. Keith agreed that Sheree would be devastated if she could not move the children with her, as he would be if they were permitted to move away, but thought that the children’s needs would be better served in northwest Arkansas.

Sheree and her new husband Brian were expecting a child in October 2001. Sheree had worked as a waitress in northwest Arkansas but, due to Brian’s financial stability, she would have the opportunity to be a stay-at-home mother in Tennessee. She thought that the children would benefit from a two-parent household and the opportunity to have a relationship with their half-sibling. Sheree stated that Brian was a good step-parent and a good provider. She thought the children would be devastated if she were not permitted to take them. Both parties complimented the other on their parenting skills and on their ability to see to the children’s needs.

The chancellor announced her findings at the conclusion of the hearing, finding that Sheree’s petition should be denied, and Keith’s petition should be granted. Her findings included: that Sheree had the threshold burden of showing some real advantage to herself and the children in the proposed move; that she failed in that burden; that the children enjoyed a strong connection to their father, their extended family, and to northwest Arkansas; and that they had spent extensive amounts of time with their father since the divorce. The chancellor determined that neither party had improper motives for their respective requests and that Sheree would likely comply with any modified visitation orders, but the children’s best interests would not be served by permitting Sheree to relocate with them. This appeal followed.

Although the chancellor considered to some extent the factors articulated in Staab v. Hurst, 44 Ark. App. 128, 868 S.W.2d 517 (1994), her decision was clearly based on the finding that appellant, Sheree Hollandsworth, failed to meet the threshold burden of proving a real advantage to both the children and herself in the move. In reaching this conclusion, the chancellor relied heavily on this court’s holding in Hickmon v. Hickmon, 70 Ark. App. 438, 19 S.W.3d 624 (2000). However, the chancellor erred as a matter of law in holding that Sheree must, as a threshold matter, prove a real advantage specific to the children in the proposed move, and erred in interpreting Hickmon to require such proof. See Haas v. Haas, 74 Ark. App. 49, 44 S.W.3d 773 (2001) (reversing chancellor who indicated that custodial parent was required to show advantage unique to minor child). Hickmon held that a custodial parent seeking to relocate with the parties’ minor children must first meet the burden of demonstrating some real advantage to the children and himself or herself from the move. Hickmon, 70 Ark. App. at 445, 19 S.W.3d at 629. Because the factual concerns of visitation with the father and extended family were similar to the facts in Hickmon, the chancellor stated that she “felt compelled” to deny the mother’s request to relocate. Yet, we upheld the chancellor in Hickmon primarily on the basis that the psychologists who testified were tinited in their opinions that the move would have a detrimental psychological effect on the children. Hickmon, 70 Ark. App. at 446, 19 S.W.3d at 629-30; see also Parker v. Parker, 75 Ark. App. 90, 55 S.W.3d 773 (2001). The record in this case contains no evidence that the move would be psychologically detrimental to the children, and a correct analysis of the Staab factors favors granting the petition to relocate.

In Staab v. Hurst, 44 Ark. App. 128, 133-35, 868 S.W.2d 517, 519-20 (1994), we articulated a framework by which courts should be guided in deciding relocation disputes. We said therein that achieving the “best interests of the child” remains the ultimate objective in resolving all child custody and related matters, and we adopted the rationale announced in D’Onofrio v. D’Onofrio, 144 N.J.Super. 200, 365 A.2d 27, aff'd 144 N.J.Super. 352, 365 A.2d 716 (App. Div. 1976). D’Onofrio provided that, where the custodial parent seeks to move with the parties’ children to a place so geographically distant as to render weekly visitation impossible or impractical, and where the noncustodial parent objects to the move, the custodial parent should have the burden of first demonstrating that some real advantage will result to the new family unit from the move. The D’Onofrio opinion explained:

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Hollandsworth v. Knyzewski
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Bluebook (online)
79 S.W.3d 856, 78 Ark. App. 190, 2002 Ark. App. LEXIS 381, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hollandsworth-v-knyzewski-arkctapp-2002.