Maley v. Cauley

378 S.W.3d 808, 2010 Ark. App. 850, 2010 WL 5115413, 2010 Ark. App. LEXIS 901
CourtCourt of Appeals of Arkansas
DecidedDecember 15, 2010
DocketNo. CA 10-418
StatusPublished
Cited by5 cases

This text of 378 S.W.3d 808 (Maley v. Cauley) 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
Maley v. Cauley, 378 S.W.3d 808, 2010 Ark. App. 850, 2010 WL 5115413, 2010 Ark. App. LEXIS 901 (Ark. Ct. App. 2010).

Opinion

JOHN B. ROBBINS, Judge.

| Appellant Robert Avron Maley appeals the modification of visitation and of child support entered by the Pulaski County Circuit Court in January 2010. The order awarded some relief requested by his ex-wife, appellee Ann Elizabeth Maley, and it altered provisions of the March 2007 divorce decree entered by the same trial judge. Robert appeals, contending that the order is clearly erroneous. We affirm.

The parties divorced in March 2007 pursuant to an agreed decree and property settlement agreement approved by the trial judge. In it, the parties ended their marriage and agreed:

The parties shall share joint legal and physical custody of the parties’ minor children!.] Neither party shall pay child support to the other party but rather each parent shall provide for the children when they are in that parent’s respective care and custody. As | ^.necessary, the parties will share any expenses for the minor children, but both parties must agree to expenditures, other than medical and dental expenses.

In a separate provision, the parties agreed to split any cost of medical insurance and out-of-pocket expenses related to medical and dental care. Each parent was allowed two children for tax-exemption purposes.

Their visitation schedule, specifically noting that they each shared joint physical and legal custody, permitted Ann to have the children Monday, Wednesday, and every other weekend; Robert was permitted to have the children Tuesday and Thursday nights until 8 p.m. and alternate weekends. Major holidays were divided with specificity. The parties agreed to live within fifty miles of one another, and if different school districts were attached to their residences, then Ann’s address would prevail. If either party moved more than fifty miles outside the city limits of Little Rock, then the remaining parent would become the primary custodian, entitled to child support from the parent who moved. Other provisions of the decree are not material to this appeal.

In November 2008, Ann filed a motion to modify the decree asserting as a material change in circumstances: that Robert had not significantly contributed to the children’s expenses as agreed; that she was struggling financially; that she often had to wait weeks prior to being reimbursed; that the children were tense and uncomfortable with Robert and the woman he was living with; that Robert should be ordered to participate in family counseling with the children; that she should be awarded primary custody of the children; and that Robert should be ordered to pay child support. She made other requests that are immaterial | <¡to this appeal. Robert filed a response through an attorney, generally denying the allegations and asking that the motion be dismissed.

Before the hearing, Robert’s attorney was permitted to be relieved as counsel. The issues were set for a hearing in December 2009. Ann appeared, represented by counsel, and Robert appeared pro se.

The only witnesses were Ann and Robert. It was undisputed that the parties lived in very close proximity to one another in Pulaski County; Ann lived in Sherwood and Robert lived in Jacksonville. Ann recounted that she was bearing the lion’s share of expenses, that she was the parent primarily responsible for the children’s activities, transportation, school needs, and medical necessities, and that Robert was not cooperative in reimbursing her. Ann said Robert was not allowing the children to participate in some of their extracurricular activities if they occurred on his weekends. She also complained that the children were being returned by Robert too late on Tuesday and Thursday nights, which necessitated the children staying up late to finish homework. She said this affected their grades, and they were tired and upset. She requested that Tuesday and Thursday night visitation end at 6:30 p.m. Robert did not cross-examine her.

In his testimony, Robert candidly agreed he had been unreliable in sharing the children’s expenses. Regarding his time with the children, he said that they often visited his wife at her place of employment, and they finished dinner during the week between 7:00-7:30 p.m. But, he typically returned the children to Ann during the week around 9:00 p.m. |4He denied knowing about any problems with homework. When his examination was completed, Robert did not call any witnesses.

Both of their affidavits of financial means were entered into evidence. At the conclusion, the judge asked if Robert had anything else to add, and he said, “No.” Then, the judge calculated a child-support figure and changed the end of Robert’s visitation on Tuesday and Thursday from the decreed time of 8:00 p.m. to 7:00 p.m.

A formal order followed in January 2010, and it recited that (1) Robert would pay child support in the amount of $352 biweekly; and (2) Robert’s two weekday visitations would end at 7:00 p.m. There were also other items addressed, but they are not necessary for our consideration.1 All other orders not specifically modified remained in full force and effect. It is from the January 2010 order that Robert appeals. Ann did not cross-appeal.

We review custody and child-support matters de novo on the record, but we will not reverse a trial court’s findings of fact unless they are clearly erroneous or clearly against the preponderance of the evidence. Evans v. Tillery, 361 Ark. 63, 204 S.W.3d 547 (2005). De novo review does not mean that we can entertain new issues on appeal when the opportunity presented itself for them to be raised at the trial court level but there was no argument presented to the trial court. Lamontagne v. Ark. Dep’t of Human Servs., 2010 Ark. 190, 366 S.W.3d 351; Roberts v. Yang, 2010 Ark. 55, 370 S.W.3d 170. We give due deference to the trial judge in matters of the credibility of the witnesses and the weight to be given testimony. Evans, supra. This deference is even greater in child-custody matters. Hunt v. Perry, 355 Ark. 303, 138 S.W.3d 656 (2003). A ruling regarding child support is reviewed under an abuse-of-discretion standard. Evans, supra.

We first address the modification in visitation. In order to make changes to custody or visitation, the moving party must first demonstrate a material change in circumstances. Guest v. San Pedro, 70 Ark. App. 389, 19 S.W.3d 62 (2000). The primary consideration is always the best interest of the child. Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d 520 (1999). Important factors to consider in determining reasonable visitation are the wishes of the child, the capacity of the party desiring visitation to supervise and care for the child, problems of transportation and prior conduct in abusing visitation, the work schedule or stability of the parties, and the relationship with siblings and other relatives. See Hass v. Hass, 80 Ark. App. 408, 97 S.W.3d 424 (2003). Visitation is left to the sound discretion of the trial court. Id.

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Bluebook (online)
378 S.W.3d 808, 2010 Ark. App. 850, 2010 WL 5115413, 2010 Ark. App. LEXIS 901, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maley-v-cauley-arkctapp-2010.