Cite as 2020 Ark. App. 74 Reason: I attest to the accuracy ARKANSAS COURT OF APPEALS and integrity of this document DIVISION III No. CV-19-589 Date: 2021-06-29 17:07:41 Foxit PhantomPDF Version: 9.7.5 OPINION DELIVERED: February 5, 2020 LACHE PRICE APPELLANT APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FOURTEENTH DIVISION V. [NO. 60DR-18-1061]
HONORABLE VANN SMITH, CHRISTOPHER D. PRICE JUDGE APPELLEE REVERSED AND DISMISSED
ROBERT J. GLADWIN, Judge
Appellant Lache Price appeals the April 26, 2019 order from the Pulaski County
Circuit Court. She argues that the circuit court erred as a matter of law in considering
evidence that was barred by collateral estoppel and res judicata and that the circuit court
erred in its application of Singletary v. Singletary, 2013 Ark. 506, 431 S.W.3d 234, allowing
appellee Christopher Price to relocate with the parties’ minor child to Indiana. Because the
circuit court failed to make a requisite finding as to whether there had been a material
change of circumstances, we reverse and dismiss.
I. Facts
Prior to the parties’ separation, they resided together with their minor child, H.P.,
in South Dakota, where Christopher served in the military. In August 2017, Lache traveled
to Arkansas to look for places for the family to move after Christopher fulfilled his military
obligations. Shortly thereafter, Lache informed Christopher that she wanted a divorce and would not be returning to South Dakota. Christopher eventually moved to Arkansas in
early 2018 after learning that Lache was living with Jeff Ingram, a convicted felon, 1 and was
pregnant with Ingram’s child.2
Christopher filed a complaint for divorce on March 21, 2018, on the basis of the
general-indignities ground, and on April 19, Lache timely responded and counterclaimed
for divorce on the same ground. At the final divorce hearing on November 1, evidence was
presented to the circuit court concerning, among other things, Lache’s boyfriend, Ingram;
Christopher’s anticipated move to Indiana and the town where he wished to relocate; issues
relating to Lache’s vehicle;3 and Lache’s residential moves since coming to Arkansas.
Christopher specifically notified the circuit court that he intended to move to Indiana and
that he thought he and H.P. would have a better life in Indiana for both economic and
family-support reasons.
The circuit court ruled that because no motion to relocate had been filed in the case,
it would not consider the issue of Christopher’s relocation to Indiana but would take it up
later, after Christopher filed a formal motion to relocate. The circuit court informed Lache
that “there is a possibility that (Christopher will) get to move with the child to Indiana
. . . . But I’m going to at least make him go through the legal procedures to do so.” At the
1 It is undisputed that Ingram had fulfilled his parole requirements. 2 It appears that this child was born prior to the parties’ divorce, but nothing in the record before us indicates whether the child was deemed a child of the marriage, whether Ingram was listed on the birth certificate, etc. 3 It was undisputed that Lache’s vehicle was not registered, that she did not have liability insurance on the vehicle, that she did not have an Arkansas driver’s license, that she had not made a payment on her vehicle in many months, and that she had no income.
2 end of the hearing, the circuit court noted that both parties were “good parents” and granted
true joint custody while reserving in the divorce decree entered on November 30
Christopher’s ability to petition for relocation.
On December 11, Christopher filed a motion for modification and relocation. In his
motion, Christopher pleaded, “Based upon all the factors that were evident during the
divorce proceedings, it would be in the best interests of the child that he be allowed to
relocate to Indiana” and “that [Christopher’s] relocation constitutes a material change in
circumstance for which modification should be based.” Lache retained counsel and filed an
answer to the motion on January 30, 2019.
At the April 12 hearing on Christopher’s motion for modification and relocation,
Lache’s counsel argued that Christopher had not pled a sufficient material change in
circumstances and that the already litigated issues were barred by collateral estoppel or should
have been previously litigated per res judicata. Over Lache’s objections, the circuit court
heard testimony as to why Christopher wanted to relocate to Indiana; details on two jobs
and daycare for H.P. that he had secured since the last hearing; issues concerning Ingram;
Lache’s residential moves since coming to Arkansas; problems with Lache’s vehicle; and the
parties’ reasons for moving to Arkansas.
In closing statements, counsel for Lache argued that Christopher did not argue a
sufficient material change under Singletary, supra. The circuit court disagreed and also found
that it had not tried the issue of relocation but had instead specifically reserved that issue.
Accordingly, the circuit court found that the issue of relocation was not res judicata and that
the related evidence would be allowed.
3 On April 26, the circuit court granted Christopher’s motion for modification and
relocation. In its order, the circuit court noted Christopher’s two job offers in Indiana; the
substantial help available from his siblings in Indiana; Lache’s lack of income; Lache’s duties
to her disabled daughter by her adulterous relationship with Ingram; Lache’s cohabitation
with Ingram, a convicted felon; and Lache’s lack of secure transportation. Nothing in the
order, however, analyzes or constitutes a finding with respect to the material-change-of-
circumstances issue. The circuit court merely stated that Singletary was the appropriate case
to apply and found that it was in H.P.’s best interest to relocate to Indiana with Christopher.
On May 8, Lache filed her notice of appeal of the circuit court’s order.
II. Standard of Review and Applicable Law
This court recently reiterated its well-settled de novo standard of review in cases
involving child custody that it will not reverse a circuit court’s findings unless they are clearly
erroneous. Williams v. Williams, 2019 Ark. App. 186, at 19–20, 575 S.W.3d 156, 163–64.
“A finding is clearly erroneous when the reviewing court, on the entire evidence, is left
with a definite and firm conviction that a mistake has been committed.” Id. Special
deference is given to the superior position of the circuit court to evaluate witnesses, their
testimony, and the child’s best interests. Id. However, a circuit court’s conclusions of law
are given no deference on appeal. Fischer v. Smith, 2012 Ark. App. 342, at 1–2, 415 S.W.3d
40, 40–41.
III. Discussion
We initially dispose of Lache’s argument that the circuit court erred as a matter of
law in reconsidering evidence that was barred by collateral estoppel and res judicata. At the
4 hearing on the motion to relocate, Lache objected to any evidence that had been introduced
in the divorce hearing being reintroduced at the hearing on the motion to modify and
relocate, stating that the issue had been litigated before and that the evidence was barred by
collateral estoppel or res judicata. The circuit court responded, clearly stating the following:
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Cite as 2020 Ark. App. 74 Reason: I attest to the accuracy ARKANSAS COURT OF APPEALS and integrity of this document DIVISION III No. CV-19-589 Date: 2021-06-29 17:07:41 Foxit PhantomPDF Version: 9.7.5 OPINION DELIVERED: February 5, 2020 LACHE PRICE APPELLANT APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FOURTEENTH DIVISION V. [NO. 60DR-18-1061]
HONORABLE VANN SMITH, CHRISTOPHER D. PRICE JUDGE APPELLEE REVERSED AND DISMISSED
ROBERT J. GLADWIN, Judge
Appellant Lache Price appeals the April 26, 2019 order from the Pulaski County
Circuit Court. She argues that the circuit court erred as a matter of law in considering
evidence that was barred by collateral estoppel and res judicata and that the circuit court
erred in its application of Singletary v. Singletary, 2013 Ark. 506, 431 S.W.3d 234, allowing
appellee Christopher Price to relocate with the parties’ minor child to Indiana. Because the
circuit court failed to make a requisite finding as to whether there had been a material
change of circumstances, we reverse and dismiss.
I. Facts
Prior to the parties’ separation, they resided together with their minor child, H.P.,
in South Dakota, where Christopher served in the military. In August 2017, Lache traveled
to Arkansas to look for places for the family to move after Christopher fulfilled his military
obligations. Shortly thereafter, Lache informed Christopher that she wanted a divorce and would not be returning to South Dakota. Christopher eventually moved to Arkansas in
early 2018 after learning that Lache was living with Jeff Ingram, a convicted felon, 1 and was
pregnant with Ingram’s child.2
Christopher filed a complaint for divorce on March 21, 2018, on the basis of the
general-indignities ground, and on April 19, Lache timely responded and counterclaimed
for divorce on the same ground. At the final divorce hearing on November 1, evidence was
presented to the circuit court concerning, among other things, Lache’s boyfriend, Ingram;
Christopher’s anticipated move to Indiana and the town where he wished to relocate; issues
relating to Lache’s vehicle;3 and Lache’s residential moves since coming to Arkansas.
Christopher specifically notified the circuit court that he intended to move to Indiana and
that he thought he and H.P. would have a better life in Indiana for both economic and
family-support reasons.
The circuit court ruled that because no motion to relocate had been filed in the case,
it would not consider the issue of Christopher’s relocation to Indiana but would take it up
later, after Christopher filed a formal motion to relocate. The circuit court informed Lache
that “there is a possibility that (Christopher will) get to move with the child to Indiana
. . . . But I’m going to at least make him go through the legal procedures to do so.” At the
1 It is undisputed that Ingram had fulfilled his parole requirements. 2 It appears that this child was born prior to the parties’ divorce, but nothing in the record before us indicates whether the child was deemed a child of the marriage, whether Ingram was listed on the birth certificate, etc. 3 It was undisputed that Lache’s vehicle was not registered, that she did not have liability insurance on the vehicle, that she did not have an Arkansas driver’s license, that she had not made a payment on her vehicle in many months, and that she had no income.
2 end of the hearing, the circuit court noted that both parties were “good parents” and granted
true joint custody while reserving in the divorce decree entered on November 30
Christopher’s ability to petition for relocation.
On December 11, Christopher filed a motion for modification and relocation. In his
motion, Christopher pleaded, “Based upon all the factors that were evident during the
divorce proceedings, it would be in the best interests of the child that he be allowed to
relocate to Indiana” and “that [Christopher’s] relocation constitutes a material change in
circumstance for which modification should be based.” Lache retained counsel and filed an
answer to the motion on January 30, 2019.
At the April 12 hearing on Christopher’s motion for modification and relocation,
Lache’s counsel argued that Christopher had not pled a sufficient material change in
circumstances and that the already litigated issues were barred by collateral estoppel or should
have been previously litigated per res judicata. Over Lache’s objections, the circuit court
heard testimony as to why Christopher wanted to relocate to Indiana; details on two jobs
and daycare for H.P. that he had secured since the last hearing; issues concerning Ingram;
Lache’s residential moves since coming to Arkansas; problems with Lache’s vehicle; and the
parties’ reasons for moving to Arkansas.
In closing statements, counsel for Lache argued that Christopher did not argue a
sufficient material change under Singletary, supra. The circuit court disagreed and also found
that it had not tried the issue of relocation but had instead specifically reserved that issue.
Accordingly, the circuit court found that the issue of relocation was not res judicata and that
the related evidence would be allowed.
3 On April 26, the circuit court granted Christopher’s motion for modification and
relocation. In its order, the circuit court noted Christopher’s two job offers in Indiana; the
substantial help available from his siblings in Indiana; Lache’s lack of income; Lache’s duties
to her disabled daughter by her adulterous relationship with Ingram; Lache’s cohabitation
with Ingram, a convicted felon; and Lache’s lack of secure transportation. Nothing in the
order, however, analyzes or constitutes a finding with respect to the material-change-of-
circumstances issue. The circuit court merely stated that Singletary was the appropriate case
to apply and found that it was in H.P.’s best interest to relocate to Indiana with Christopher.
On May 8, Lache filed her notice of appeal of the circuit court’s order.
II. Standard of Review and Applicable Law
This court recently reiterated its well-settled de novo standard of review in cases
involving child custody that it will not reverse a circuit court’s findings unless they are clearly
erroneous. Williams v. Williams, 2019 Ark. App. 186, at 19–20, 575 S.W.3d 156, 163–64.
“A finding is clearly erroneous when the reviewing court, on the entire evidence, is left
with a definite and firm conviction that a mistake has been committed.” Id. Special
deference is given to the superior position of the circuit court to evaluate witnesses, their
testimony, and the child’s best interests. Id. However, a circuit court’s conclusions of law
are given no deference on appeal. Fischer v. Smith, 2012 Ark. App. 342, at 1–2, 415 S.W.3d
40, 40–41.
III. Discussion
We initially dispose of Lache’s argument that the circuit court erred as a matter of
law in reconsidering evidence that was barred by collateral estoppel and res judicata. At the
4 hearing on the motion to relocate, Lache objected to any evidence that had been introduced
in the divorce hearing being reintroduced at the hearing on the motion to modify and
relocate, stating that the issue had been litigated before and that the evidence was barred by
collateral estoppel or res judicata. The circuit court responded, clearly stating the following:
Well, I think he wanted to get into the relocation the last time, it wasn’t pled so I wouldn’t let him do it. I mean, it’s not that he didn’t attempt to, but I thought he should have to file a motion to give your client a chance to respond—you know, know [sic] that what she’s responding to, because she wouldn’t have known.
This court has held that
[t]he doctrine of res judicata is not strictly applicable in child-custody matters. Our supreme court favors a more flexible approach to res judicata in these settings to allow a trial court to respond to asserted changes in circumstances and the best interest of the child. The trial court’s retention of jurisdiction over child-custody and visitation matters, and the requirement of a showing of materially changed circumstances, support the logic behind a more flexible approach in child-custody and visitation cases.
Bamburg v. Bamburg, 2014 Ark. App. 269, at 9, 435 S.W.3d 6, 12 (internal citations omitted).
Paragraph 8 of the divorce decree provides:
That [Christopher] has indicated a strong desire to relocate from central Arkansas to Indiana. [Christopher] is hereby directed to petition the Court before leaving the state with the parties’ minor child on a permanent basis. Until said time, [Christopher] is allowed to take his child to visit with [Christopher’s] family in Indiana for up to a week at a time. [Christopher] shall give [Lache] notice of his intent to take the child to Indiana for visits no less than seven (7) days in advance.
Having considered the rationale set forth in Bamburg, supra, accompanied by the clear
language of the divorce decree indicating that the issue of relocation is reserved pending the
filing of a motion for relocation, we hold that the circuit court did not err in allowing and
considering evidence relating to Christopher’s proposed relocation at the hearing on his
motion to modify and relocate.
5 Next, Lache argues that the circuit court erred in its application of Singletary, supra.
In cases seeking to determine whether a parent may relocate with a minor child, the circuit
court must generally look to the principles set forth in our supreme court’s decisions in
Hollandsworth v. Knyzewski, 353 Ark. 470, 109 S.W.3d 653 (2003), and later in Singletary.
See Armstrong v. Draper, 2019 Ark. App. 114, at 5, 571 S.W.3d 60, 63. In Hollandsworth, our
supreme court announced a presumption in favor of relocation for parents who have sole
or primary physical custody, with the noncustodial parent having the burden to rebut this
presumption. Id.
In Singletary, the supreme court removed any such presumption when parents share
equal joint physical custody. The proper analysis for a change-in-custody request due to the
relocation of one parent in a joint-custody situation is the same as that when relocation is
not involved; the court must first determine whether a material change of circumstances has
transpired since the last order on custody and whether the change in custody is in the best
interest of the child. Raymond v. Kuhns, 2018 Ark. App. 567, at 2, 566 S.W.3d 142, 144.
The main consideration in a case involving child custody is the welfare and best interest of
the child, and all other considerations are secondary. Id. at 2, 566 S.W.3d at 143. When a
party is requesting a change of custody, it is that party’s burden to show that there has been
a material change of circumstances since the original order establishing custody or that there
were facts not presented at the initial hearing that would bear on the best interest of the
child. See Ryan v. White, 2015 Ark. App. 494, at 9, 471 S.W.3d 243, 249.
Here, it is undisputed that Singletary governs, given this true joint-custody situation.
The visitation schedule included in the divorce decree provides for an almost evenly divided
6 share of time with H.P. for each of the parties, and that is a continuation of the parties’
coparenting practice in the months leading up to the divorce in which the parties exchanged
H.P. every two days.
Lache argues that the circuit court clearly erred in granting Christopher’s motion
because there was no material change of circumstances between the final divorce decree
entered on November 30, 2018, and the order granting Christopher’s motion to modify
and relocate entered a mere five months later on April 26, 2019. She submits that the circuit
court’s final order following the relocation hearing included bases for its conclusions from
the same evidence presented at the divorce hearing, including, but not limited to the
following, (1) Lache’s moving to Arkansas, becoming pregnant with a child with Ingram, a
convicted felon, and the child having a disability; (2) Christopher’s desire to move to Indiana
because he had family and potential employment there; (3) the instability of Lache’s home
life because of her boyfriend’s and her lack of employment and; (4) evidence regarding
Lache’s vehicle and its registration. Lache maintains that there were no material facts that
existed at the time of the final divorce hearing that were unknown to the court.
Lache argues that if the circuit court believed it was in H.P.’s best interest to relocate
to Indiana with Christopher following the hearing on the motion to relocate, then it should
have granted primary physical custody to him following the initial divorce proceeding
because the decision was based on the same testimony. The circuit court likewise could
have prevented this controversy by reserving the final determination of custody and
maintaining the temporary joint-custody arrangement the parties had been following
pending Christopher’s filing of a motion to relocate, at which time it could have made an
7 initial custody determination based on the best-interest analysis. Instead, following a full
hearing on the merits of the issue of custody, which took place as part of the November
divorce hearing, the circuit court determined that true joint custody was in H.P.’s best
interest: “The parties are hereby awarded joint custody of the parties’ minor child and shall
continue with the joint custody arrangement that the parties have been utilizing since the
filing of the Complaint in this matter.”
Despite the circuit court stating that it had utilized Singletary in its analysis, Lache
maintains that it instead appeared to afford Christopher the Hollandsworth presumption in
favor of relocation. While it is evident from the express language of the order resulting from
the relocation hearing that the circuit court made the requisite best-interest finding, the
order is void of any material-change-in-circumstances finding.
Although Christopher argues that the evidence presented at the relocation hearing
that he was moving to Indiana, that he had secured two jobs and daycare for H.P. in
Hartford City, Indiana, and that his siblings in Indiana were able and willing to provide
substantial help combined with the circuit court’s reserving the relocation issue and ruling
only that joint custody was appropriate under the circumstances of both parties living in
close proximity constitute a material change in circumstances, it is undeniable that the circuit
court failed to include the requisite material-change-of-circumstances finding in its order
granting Christopher’s motion to modify and relocate.
Accordingly, we are left with a definite and firm conviction that a mistake has been
committed by the circuit court. In the divorce hearing, the circuit court was required to
make a best-interest finding and did so when it ruled to maintain the parties’ joint-custody
8 arrangement. But the circuit court then incorrectly applied Singletary because it failed to
make a material-change-of-circumstances finding from the time of the initial custody
determination. Accordingly, we reverse and dismiss.
Reversed and dismissed.
HARRISON and WHITEAKER, JJ., agree.
WH Law, by: Charlie Cunningham, for appellant.
Knollmeyer Law Office, P.A., by: Michael Knollmeyer, for appellee.