Cite as 2025 Ark. App. 226 ARKANSAS COURT OF APPEALS DIVISION I No. CV-24-72
KAMIL BAY Opinion Delivered April 16, 2025
APPELLANT APPEAL FROM THE BENTON COUNTY CIRCUIT COURT V. [NO. 04DR-21-1262]
CAHYANDINI FAJRIATI HONORABLE DOUG SCHRANTZ, APPELLEE JUDGE
AFFIRMED
ROBERT J. GLADWIN, Judge
Kamil Bay appeals the June 9, 2023 order of the Benton County Circuit Court
changing custody of the parties’ minor child (M.C.) to appellee, Cahyandini Fajriati, as well
as the July 23 deemed denial of Bay’s motion for a new trial. Bay argues that (1) the circuit
court lacked jurisdiction to re-decide custody; (2) there was no material change of
circumstances; and (3) changing custody was not in M.C.’s best interest.
I. Facts and Procedural History
Bay and Fajriati were married on April 29, 2020, after meeting through the online
dating site, AsianDating.com. One child, M.C., was born of the marriage on February 11,
2021.
On July 1, the parties separated. On August 4, Bay petitioned for a divorce, specifically
requesting primary custody of M.C. On September 10, Fajriati signed a document in which she “waive[d] the time to
answer, plead or demur,” waived discovery, and acknowledged that the cause may be heard
at any time. On September 28, the case was submitted on affidavits, and the initial decree of
divorce was entered the same day. Bay was granted full custody of M.C. subject to Fajriati’s
visitation. It is undisputed that Fajriati’s signature appears on the decree, and the decree
specifically stated that the circuit court had jurisdiction over the parties and subject matter.
Eighty-six days later, on December 23, Fajriati moved to set aside the divorce decree
on the grounds of fraud, misrepresentation, and duress. Fajriati asserted that the circuit court
had jurisdiction of the parties and the subject matter set forth in her motion. She claimed
to have been kept in a room in the marital home, under camera supervision, to make sure
she did not leave. She claimed she had not been provided a bed, “was only given food
(oatmeal)” at Bay’s discretion, and had no access to a telephone or transportation. She
claimed to have been subjected to “abuse and torture” by Bay’s mother in Bay’s presence.
She alleged that Bay’s mother beat her with a tennis racket and, later, a ping-pong paddle in
Bay’s presence because he had taken her to his brother’s house instead of the lawyer’s office.
In his response, Bay acknowledged that the circuit court had jurisdiction. Despite
Bay’s contention on appeal that he did not agree to the circuit court’s jurisdiction, a hearing
on Fajriati’s motion was held on April 6, 2022, but was recessed early and continued due to
the interpreter’s schedule. In an order that followed on May 11, the circuit court set forth
that it had jurisdiction over the parties and subject matter; that the divorce decree would not
be set aside and would remain in full force and effect; and that the issues of child custody,
2 visitation, and child support would be determined by the circuit court as an initial
adjudication. The order was approved by counsel for both parties, but neither party signed
the order. It is undisputed that the circuit court did issue that order before the ninetieth day
after the decree was filed.
On July 5, the circuit court entered an agreed temporary order that modified custody
of M.C. to joint custody and appointed an attorney ad litem. Again, the agreed order stated
that the circuit court had jurisdiction over the parties and subject matter and was signed by
counsel for all parties.
On May 8, 2023, the final hearing related to custody, visitation, and support issues
commenced, which was conducted over three days (May 8–9 and 26). Notably, on May 10,
Fajriati filed a counterpetition for custody and child support.
At the conclusion of the three-day hearing, the circuit court cited numerous factors
to support an award of custody of M.C. to Fajriati, including, but not limited to, the inability
of Bay to co-parent, the physical and mental abuse brought upon Fajriati by Bay and his
mother, and a finding that Bay treated Fajriati as little more than “breeding stock.”
Bay then filed a motion for a new trial, arguing that the circuit court lacked
jurisdiction to issue its order on June 9, 2023, and that the order was clearly contrary to the
preponderance of the evidence pursuant to Arkansas Rule of Civil Procedure 59(a)(6) (2023).
Bay requested that the circuit court vacate the June 9 order and reinstate the court’s
September 28, 2021 divorce decree in its place. The motion was deemed denied, and on July
4, Bay filed his notice of appeal of the circuit court’s order.
3 II. Standard of Review
We perform a de novo review of child-custody matters, but we will not reverse the
circuit court’s findings unless they are clearly erroneous. Hamerlinck v. Hamerlinck, 2022 Ark.
App. 89, at 12, 641 S.W.3d 659, 665. A finding is clearly erroneous when, although there is
evidence to support it, the reviewing court is left with the definite and firm conviction that
a mistake has been made. Id. at 12–13, 641 S.W.3d at 665. While a circuit court retains
jurisdiction to modify an initial child-custody award, the standard for modification is more
stringent than it is for the initial determination. Reynolds v. Reynolds, 2024 Ark. App. 229, at
6, 687 S.W.3d 584, 589. A party seeking to modify custody must prove that a material change
of circumstances has occurred since the last order of custody or that material facts were
unknown to the court when the decree was entered. Id. If that threshold requirement is met,
the court must then determine who should have custody with the sole consideration being
the best interest of the child. Id. at 7, 687 S.W.3d at 589. On issues of child custody, the
reviewing court gives “special deference to the superior position of the circuit court to
evaluate the witnesses, their testimony, and the child’s best interest.” Cunningham v.
Cunningham, 2019 Ark. App. 416, at 4, 588 S.W.3d 38, 40. The evidence will not be
reweighed and evaluated differently than the circuit court. Hamerlinck, 2022 Ark. App. 89,
at 15, 641 S.W.3d at 667.
4 III. Discussion
A. Did the Circuit Court Have Jurisdiction to Change Custody?
Bay argues that the circuit court lacked the power to amend the original divorce
decree after ninety days, and in support, he cites Dorey v. Dorey, 2024 Ark. App. 199, at 9,
686 S.W.3d 618, 623 (reversing the modification of a divorce decree “more than two years
after the decree was entered” because there was no Rule 60(c) exception). The filing of the
original divorce decree set a ninety-day deadline during which it could be reopened for
general miscarriages of justice. See Ark. R. Civ. P 60 (2024). He submits that after that
deadline, the circuit court lost the power to set aside or modify the decree absent an
enumerated exception, even if a motion was timely filed before the expiration of that period.
See Dye v. Diamante, 2017 Ark. 37, 509 S.W.3d 643 (citing Ark. R. Civ. P. 60(c)).
The circuit court entered the original decree on September 28, 2021. The decree
vested Bay with sole custody of M.C. and was signed by Fajriati. The ninety-day window
closed on December 27, 2021. A year and a half after the deadline, the circuit court entered
a “final order” that purported to re-decide custody as an initial adjudication. Even though
Fajriati moved to set aside the decree before the deadline, Bay, citing Dye, supra, argues that
the circuit court lost the power to grant the motion after December 27, 2021. He contends
that because the circuit court exercised jurisdiction where there was none, the proper relief
is to reverse and dismiss the June 9, 2023 order.
We disagree. Circuit courts in Arkansas retain exclusive, continuing jurisdiction over
issues of child custody, visitation, and support. Kyle v. Off. of Child Support Enf’t, 2019 Ark.
5 App. 491, at 7, 588 S.W.3d 754, 758; Ark. Code Ann. § 9-19-202 (Repl. 2020). This
jurisdiction continues regardless of the status of the parties’ divorce. See Rogers v. Rogers, 80
Ark. App. 430, 439, 97 S.W.3d 429, 435 (2003) (holding that circuit courts have exclusive
jurisdiction over issues of child support regardless of whether they have jurisdiction to grant
a divorce and stating that this principle “embodies sound public policy”). Regardless of
whether the circuit court viewed the June 9, 2023 award of custody to Fajriati as an initial
custody determination or a modification of custody, we hold that the circuit court did not
err when it found that it had jurisdiction over the parties and the subject matter involved.
B. Was There a Material Change of Circumstances?
In addition to his challenge to the circuit court’s jurisdiction, Bay argues that it was
clearly erroneous for the circuit court to change custody because there was neither evidence
nor a finding of a material change in circumstances. The purpose of this requirement is to
promote stability and continuity in M.C.’s life and to discourage repeated litigation of the
same issues. See Reynolds, 2024 Ark. App. 229, at 7, 687 S.W.3d at 589. Over the course of
M.C.’s short life, primary custody changed from Bay (nine months) to joint (eleven months)
then to Fajriati (since June 2023). Bay argues that by disregarding this elemental change-in-
circumstances requirement, the circuit court introduced chaos into M.C.’s most formative
years.
Bay avers that the circuit court made no mention of a material change in
circumstances because his attorney stipulated that the custody determination could be
decided anew. Bay, citing Losurdo v. Losurdo, 2023 Ark. App. 584, 680 S.W.3d 487, maintains
6 that this stipulation cannot bind him because there is no indication it was made with
authority. Because his signature does not appear on the May 11 and July 5, 2022 agreed
orders, and there is nothing in the record indicating that Bay specifically agreed to its terms,
he argues that Losurdo is controlling and requires reversal.
Bay argues that it was clearly erroneous for the circuit court to change custody without
finding that a material change in circumstances had occurred since the last order of custody.
See Bonds v. Bonds, 2021 Ark. App. 359, at 6, 634 S.W.3d 572, 577–78. Bay maintains that
the record is silent regarding any harm to M.C. during the time in Bay’s care. He submits
that, to the contrary, Fajriati disclaimed concerns about Bay’s role as father.
Bay urges that the circuit court had an independent duty to ensure that there was a
countervailing benefit to offset the disruption that would result from a change of M.C.’s
home life. He argues that because the circuit court neglected its duty to protect the stability
in M.C.’s life, we should reverse the decision to change custody.
We disagree and hold that the material-change-of-circumstances standard was met.
The circuit court heard significant evidence of Bay’s inability to co-parent alongside Fajriati
since the July 5, 2022 agreed order was entered, including how he created an extremely
hostile environment toward Fajriati and how M.C. was at great risk of continued negative
exposure should joint custody continue. And although physical harm of a child is not the
only consideration supporting a finding that a material change in circumstances has
occurred, Bay notes that “to find a material change in circumstances occurs, there must be
some negative impact on the child.” In addition to the above, the record before us includes
7 testimony from both Fajriati and Angelyn McMurray with We Are Free, an organization that
provides services to human-trafficking victims, that after a Christmas visit with Bay, M.C.
returned to Fajriati with bruising on the face. Accordingly, there was some evidence of
physical harm presented to the circuit court that could be relied on to establish that there
had been a material change in circumstances.
Moreover, the circuit court may also find a material change in circumstances on the
basis of the “[f]ailure of communication, increasing parental alienation by a custodial parent,
and inability to cooperate.” Snider v. Snider, 2024 Ark. App. 317, at 7 (citing Self v. Dittmer,
2021 Ark. App. 85, at 9, 619 S.W.3d 43, 48). The record includes evidence of Bay’s inability
to communicate with Fajriati and his manipulation of her due to language barriers. Multiple
witnesses testified concerning Bay’s inability to treat Fajriati as an equal. The record contains
many communications over a period of time via email and the court-approved application
AppClose showcasing Bay’s abrupt and bullying behavior towards Fajriati. Contrary to Bay’s
assertions, rather than disclaiming any concerns regarding Bay’s role as a father, Fajriati
testified to the abuse she suffered at Bay’s hands and the subsequent undercutting of her
role as a parent by both Bay and his mother since the entry of the July 5, 2022 order.
Accordingly, we hold that there was sufficient evidence presented for the circuit court to
determine there was a material change in circumstances to support its ultimate change of
custody.
8 C. Best-Interest Analysis
Finally, Bay argues that it was clearly erroneous for the circuit court to change custody
because it was in M.C.’s best interest to stay with him. The circuit court’s sole stated basis
for placing M.C. with Fajriati was that Bay treated Fajriati as “not much more than breeding
stock”—yet Bay notes that the parties have only one child. Bay contends that this decision is
clearly erroneous because it is rooted in the circuit court’s desire to punish him. See Reynolds,
2024 Ark. App. 229, at 8, 687 S.W.3d at 590 (holding that custody awards are not made or
changed to punish, reward, or gratify the desires of either parent). He maintains that the
clear preponderance of the evidence shows that only he is competent to care for M.C.
Bay submits that the operative question does not concern the parties’ relationship
with each other but rather what is in the best interest of the child. E.g., Neal v. Neal, 2016
Ark. App. 223, 491 S.W.3d 467. This court has analyzed this question from the viewpoint
of parental stability. See Roper v. O’Neal, 2020 Ark. App. 431, at 4 (holding that the minor
child’s best interest was not placement with the mother whose life was marked by “overall
instability,” was reliant on the charity of third parties, had no permanent residence, and had
no stable work environment).
Bay notes that he is gainfully employed, having worked at Walmart headquarters for
ten years in analytics, and that he has a master’s degree. In contrast, Fajriati is unemployed
and not lawfully permitted to work or obtain a driver’s license because she is an immigrant
with an expired work-authorization status.
9 Bay also argues that he alone has stable housing and that Fajriati’s housing is “fluid”
and completely reliant on a third party—specifically, We Are Free, a nongovernmental
organization that provides long-term care to survivors of human trafficking. Bay points out
that the organization ordinarily provides services for up to twenty-four months, a period of
time that ended for Fajriati in December 2023. However, it has been providing Fajriati with
housing, food, shelter, medicine, counseling, and payment of legal expenses, which includes
immigration assistance.
Bay argues that his ability to care for M.C.’s health is superior, pointing out that M.C.
suffered from dehydration while under Fajriati’s care. He submits that Fajriati also did not
observe COVID-19 safety measures around M.C., which resulted in M.C. contracting the
virus and requiring Bay take M.C. to the urgent-care clinic.
Bay references educational opportunity as another factor considered in the best-
interest equation. See Cooper v. Kalkwarf, 2017 Ark. 331, 532 S.W.3d 58; see also Ark. Sup.
Ct. Admin. Order No. 15(b)(3). Under Bay’s care, M.C. had access to a Montessori
education that was interrupted when M.C. was with Fajriati. He notes that the school’s
director testified that it would have benefited M.C. to be in attendance every week instead
of every other week.
Bay also notes the relative availability of extended family as a recognized factor in the
best-interests analysis is. See Black v. Black, 2015 Ark. App. 153, 456 S.W.3d 773. Under his
care, M.C. has access to a grandmother who is trained as a pediatrician and two uncles, while
all of Fajriati’s family is in Indonesia.
10 Bay notes that it is also relevant to determine who serves as primary caregiver for the
child. See Thurmon v. Thurmon, 2016 Ark. App. 497, 504 S.W.3d 675. He maintains that
soon after the divorce, Fajriati intended to leave M.C. with him while she returned to
Indonesia. Bay reminds us that the initial decree vested him with primary custody and that
he allowed Fajriati to stay in his home while her COVID-19 vaccine took effect so she could
travel back to Indonesia.
Finally, Bay notes another recognized factor is an individual’s purposeful injury to the
child. See id. He claims that testimony showed that Fajriati had hit and yelled at M.C.,
dropped M.C., and ignored M.C.’s cries. And contrary to his concerns about Fajriati’s
parenting, Fajriati specifically disclaimed having any concerns about Bay’s parenting.
Bay, citing Anderson, supra, and Reynolds, supra, concludes that the circuit court clearly
erred when it disrupted “a suitable and beneficial custody arrangement” and issued a custody
determination on a naked desire to punish Bay. He urges that the proper relief is for this
court to reverse the June 2023 order and reinstate the original custody determination.
We disagree. Our de novo review of the record supports the circuit court’s
determination that the best interest of M.C. was served by vesting full custody with Fajriati
after analyzing, among other things, the abuse suffered by her. This court has considered the
treatment—or rather, the maltreatment—of spouses in determining and weighing the best
interest of the child. See, e.g., Corter v. Corter, 2023 Ark. App. 266. In Corter, we upheld the
circuit court’s decision where the underlying record indicated that the husband physically
abused the wife numerous times, including well-documented incidents of physical assault
11 and verbal attacks on her throughout their marriage. Id. Like the facts in Corter, evidence was
presented that Bay physically abused Fajriati and treated her as if she was “not much more
than breeding stock.” We have held that physical abuse is evidence that may be utilized in
establishing the best interest of a child and that it is “the legislative directive that it is not in
a child’s best interest to be in the custody of an abusive parent.” Id. at 4 (citing Ark. Code Ann. §
9-13-101(c) (Supp. 2021) (emphasis added)).
In determining M.C.’s best interest, the circuit court heard three days of testimony
from various witnesses, including the parties; Bay’s mother, Rahima Bay; Angelyn
McMurray, with We Are Free; and the attorney ad litem, Buffy Merryman. Fajriati testified
as to the mental, verbal, and physical abuse inflicted by Bay and his mother, and there is no
way this court is left with a definite and firm conviction that the circuit court erred in its
award of custody to Fajriati. The evidence included photos of bowls of food that were left
out for Fajriati to eat with crude language written on them. Fajriati testified that she was not
allowed to be downstairs in what was supposed to be her home. She testified that Bay would
control, scare, and intimidate her to such an extent that it was impossible to establish an
effective co-parenting relationship. Fajriati further testified that her lack of employment is in
no small part due to her not having the required documentation because Bay kept it from
her.
Regarding Bay’s argument that Fajriati is unable to provide a stable and loving home
to M.C. and is entirely dependent on a third party, Angelyn McMurry from We Are Free
specifically testified that the organization had a credible belief that Fajriati had been a victim
12 of labor trafficking, that Fajriati lacked control over her physical location, and that she had
limited access to M.C. McMurray confirmed that Fajriati would have care, housing, and
coverage of legal fees, especially in handling her immigration issues, as long as necessary.
McMurry stated that We Are Free provides all of a person’s physical needs and promotes
independence and self-sustainability of individuals who are in a position to need their
services. She specifically testified that Fajriati can stay with the organization for as long as she
requires and that there is no deadline regarding her stay.
McMurry responded to concerns raised by Bay regarding M.C.’s medical care,
testifying that when Fajriati first came to We Are Free, she had a constant need to monitor
and correct M.C.’s behavior. McMurry testified that Fajriati would over parent M.C. out of
fear of not being able to see her child and out of fear of Bay’s overreactions.
Testimony was also elicited regarding Bay’s continued failure to provide timely child-
support payments.
In its order vesting custody of M.C. with Fajriati, the circuit court found that it
considered the following in its decision: “[Bay] is not capable of making long term changes
regarding his relationship and communications with the [Fajriati],” and “[Bay] is engaged in
intimidation of [Fajriati].” The circuit court found that Bay excluded Fajriati from
involvement in M.C.’s medical care, limited the care Fajriati received during her pregnancy,
and prohibited pain medication at the time of M.C.’s birth. The circuit court stated that
“[t]he relationship of the parties also relates to the ability of the parents to parent” and
considered this evidence in determining the best interest of M.C.
13 The circuit court noted that Fajriati had a “palpable reaction and could barely look
at [Rahima Bay] testifying on the stand.” The circuit court’s order also found that Bay was
taking M.C. for unnecessary medical care in “an effort to blame [Fajriati] for insufficient care
of [M.C.]” and that it would “not tolerate unnecessary medical care regarding [M.C.].” The
circuit court was in a greater position to evaluate Bay’s and his mother’s inconsistent
testimony. There was clear evidence presented to the circuit court detailing how Bay’s mother
falsified information to doctors, including holding herself out to be a physician in Little
Rock, Arkansas. Despite Ms. Bay’s testimony that she was not involved in the decisions being
made by Fajriati and Bay regarding M.C., the record shows that she attended pediatrician
visits with M.C., without Fajriati’s permission and in her place, and that she was on the
phone with Bay during M.C.’s delivery, advocating for the withholding of pain medication
during childbirth.
Finally, the circuit court placed great emphasis on the testimony of the court-
appointed attorney ad litem, Buffy Merryman, who testified that it was her opinion that it
was in M.C.’s best interest for Fajriati to have primary custody. Merryman communicated
clearly to the circuit court that Bay was “slick with his testimony in court” and that “this type
of behavior is not exemplary of a father and a poor example for [M.C.].” Her testimony
provided further evidence to the circuit court regarding the inequity in the parties’
relationship and that co-parenting would be impossible:
Mr. Bay brought over a young woman from Indonesia to the U.S. and exploited her youth, her lack of family and friends, her lack of knowledge and understanding, then
14 divorced her and took their baby, and today would like to hold these very weaknesses against her as a parent when [Bay] has created this problem.
She testified that Bay will “discourage the bond between mother and son and the
relationship and create obstacles at every step has been demonstrated through this trial.”
The record indicates that the circuit court found credible the testimony and evidence
of the abuse suffered by Fajriati from Bay and his family. The circuit court found that the
best interest of M.C. in a stable environment is for her to be placed with Fajriati, as supported
by multiple witnesses. The circuit court considered an overwhelming amount of testimony
and evidence that supports its adjudication and determination of the best-interest issue. Bay’s
argument is essentially that we should weigh the evidence differently than the circuit court
did. It is well settled that we do not reweigh the evidence on appeal. Cline v. Simpson, 2024
Ark. App. 611, at 11, 703 S.W.3d 497, 504. After our review of the court’s findings, the
record as a whole, and the applicable case law, we conclude that the circuit court’s decision
to modify the custody arrangement in this case was not clearly erroneous. We therefore
affirm.
Affirmed.
HARRISON and HIXSON, JJ., agree.
Matt Kezhaya and Sonia Kezhaya, for appellant.
Friday, Eldredge & Clark, LLP, by: William A. Waddell, Jr., Melody Pruitt Guffey, and
Johanna B. Wade, for appellee.