Mathews v. Schumacher

375 S.W.3d 31, 2010 Ark. App. 155, 2010 Ark. App. LEXIS 164
CourtCourt of Appeals of Arkansas
DecidedFebruary 17, 2010
DocketNo. CA 09-565
StatusPublished
Cited by4 cases

This text of 375 S.W.3d 31 (Mathews v. Schumacher) 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
Mathews v. Schumacher, 375 S.W.3d 31, 2010 Ark. App. 155, 2010 Ark. App. LEXIS 164 (Ark. Ct. App. 2010).

Opinions

ROBERT J. GLADWIN, Judge.

| Appellant Juliane Kinard Mathews appeals the Union County Circuit Court’s January 30, 2009 order granting appellee Joseph Schumacher’s petition for permission to move the residency of the parties’ minor child and denying appellant’s counterclaim for change of custody. Appellant claims on appeal that the trial court erred in granting appellee’s petition to relocate, in denying her counterclaim for change of custody, and in denying her motion for the trial judge’s recusal. We find no error and affirm.

Facts

The parties were divorced on December 12, 2003, and custody of their minor daughter, born November 1, 2000, was ultimately awarded by order filed January 22, 2007,1 [ 2to appellee, with appellant paying child support in the amount of $900 per month. On June 5, 2007, appellee filed a petition for permission to move the residency of the minor child to Beresford, South Dakota. Appellant objected and filed a motion to reduce child support, a motion to recuse, and a counterclaim for change of custody. In support of her motion to recuse, appellant attached a letter from the executive director of the Judicial Discipline & Disability Commission (Commission) referencing the complaint she had filed against the trial-court judge based upon undue delay. The trial court denied appellant’s motion for recusal on May 15, 2008.

The hearing on appellee’s petition to remove the child to South Dakota was held on July 30, 31, and August 1, 2008. The trial court noted in his letter opinion that appellee sought to move with his daughter to Beresford, South Dakota, for two reasons: (1) to increase his income and improve his client base as a sales representative for Royal Oil Company and Mannatech, and (2) to help care for his elderly parents, whose health is declining. Appellant asserted that the sole basis for appellee’s proposed move was to limit her contact with the minor child. She claimed that ill will on appellee’s part against her and her family was the reason for his desire to move. She further claimed that because the demands of appellee’s jobs had increased, he was no longer able to devote the time necessary to raise their minor daughter, and it was in the child’s best interest to be placed with her.

|sThe trial court granted appellee’s petition to relocate to South Dakota based upon the following reasons stated in the letter opinion of January 8, 2009:

Defendant has been very liberal with the visitation that he has allowed plaintiff and her family to exercise with [the child]. He has permitted plaintiff and her family to get more visitation with [the child] than was legally required. Other than a two-week period, that immediately preceded the filing of plaintiffs Counterclaim for Custody, defendant for the most part, has allowed plaintiff visitation with [the child] whenever plaintiff made a request.... These extra grants of visitation by defendant were also extended to plaintiffs family members.... Defendant testified that any time [the child] wanted to talk to her mother, he permitted her to do so....
Plaintiffs contention and beliefs that defendant is bitter towards her, that defendant harbors ill will toward her, and that defendant has been hostile toward her is [sic] not supported by the substantial evidence in this case.... Defendant testified that initially he was hurt and had bad feelings toward plaintiff, because he did not want to lose his family, and have [the child] grow up in a divorced situation. Defendant talked to a counselor and a minister about the circumstances of his separation and divorce, and concluded that he had to forgive and move on for the health of [ the child] and all involved. Defendant testified that he has no ill will for the plaintiff or her husband.
The overwhelming evidence supports the fact that defendant has in fact moved on and has no ill will for the plaintiff or her husband. Plaintiff introduced into evidence two tape recordings, one of which included a conversation between the parties.... During this taped conversation, defendant made no insensitive, derogatory, or inappropriate statements, nor did he even raise his voice or show any hostility toward plaintiff. He calmly advised plaintiff that he needed to end the conversation before he said something that he would later regret. Defendant did not know this, or any of his other, many conversations with the plaintiff were being recorded, but he remained cordial and respectful throughout the conversation....

The trial court also noted in its opinion letter that it must consider the best interest of the child in making its determination on the relocation issue. The trial court found that appellee’s parents live in Beres-ford, South Dakota, which is about thirty miles from Sioux Falls, South Dakota. Appellee’s parents testified that they have sixteen grandchildren, nine of which live in or near Sioux Falls, and appellee has over 100 relatives in the Sioux Falls area. |4Witnesses described the local school in Beresford as “challenging.” The evidence was that the local high school offers courses in French, Spanish, German, general and advanced mathematics, trigonometry, and calculus. Further testimony indicated that the school activities include wrestling, baseball, basketball, football, golf, soccer, FFA, FHA, dance, cheerlead-ing, debate teams, Girl Scouts, and Boy Scouts. Piano lessons are also available in the area.

The trial court considered that, even though appellee’s parents are Catholic, they attended the child’s baptismal ceremony at the Baptist church in El Dorado, Arkansas, and that there is a Baptist church in Beresford. Witnesses also testified that appellee’s parents own a farm, and that the child has visited her grandparents in South Dakota, where she has enjoyed bike riding, visiting the lake, swimming, tubing, and boat riding.

The trial court found in the opinion letter that

[defendant’s proposed move would not cause a detrimental variance to the educational, health, or leisure opportunities for [the child]. Defendant has considerable family in the Beresford area, which includes several female cousins in [the child’s] age range, with whom [the child] already has a close relationship. Defendant’s family is close-knit, and they enjoy family outings together, much like plaintiffs family. These parties come from two great families, that are close, and that openly show their love and affection for [the child]. [The child] has a close bond with the families of her mother and her father.

The trial court noted in its opinion letter that Dr. Sabine Falls, a clinical psychologist who saw both parties and the child, testified that she believed it would be detrimental to the child to move away from her mother. The trial court further considered that the child had told Dr. Falls that she did not want to move to South Dakota, leave her mother, make new friends, or change schools. Dr. Falls had also testified that she found appellant to be honest | sand did not find her to be deceptive or manipulative. Dr. Falls had been told by appellant that the child spent more than fifty percent of the time with her mother, and that sometimes, appellee was hostile toward her. However, the trial court found that appellant’s testimony at trial “indicated that the time was almost half the time, instead of over fifty percent of the time.

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Cite This Page — Counsel Stack

Bluebook (online)
375 S.W.3d 31, 2010 Ark. App. 155, 2010 Ark. App. LEXIS 164, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mathews-v-schumacher-arkctapp-2010.