McNutt v. Yates

2013 Ark. 427, 430 S.W.3d 91, 2013 WL 5859515, 2013 Ark. LEXIS 512
CourtSupreme Court of Arkansas
DecidedOctober 31, 2013
DocketCV-13-454
StatusPublished
Cited by38 cases

This text of 2013 Ark. 427 (McNutt v. Yates) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McNutt v. Yates, 2013 Ark. 427, 430 S.W.3d 91, 2013 WL 5859515, 2013 Ark. LEXIS 512 (Ark. 2013).

Opinion

PAUL E. DANIELSON, Justice.

| Appellant Shauna Chantel Yates McNutt appeals from the circuit court’s order changing custody of the parties’ minor children to appellee Matthew Dalton Yates. The court of appeals affirmed the circuit court’s order in part and reversed and remanded in part in a 5-1 decision. See McNutt v. Yates, 2013 Ark.App. 307, 427 S.W.3d 749. Ms. McNutt petitioned this court for review, which we granted on July 25, 2013. When this court grants a petition for review, we treat the appeal as if it had been originally filed in this court. See Payne v. Arkansas Dep’t of Human Servs., 2013 Ark. 284, 2013 WL 3322339. On appeal, Ms. McNutt asserts three points of error by the circuit court: (1) that it abused its discretion in denying her motion for a continuance after granting her counsel’s motion to withdraw; (2) that it erred in finding that Mr. Yates proved a material change in circumstances and in awarding him custody; and (3) |2that it did not have the power to retroactively modify child support to April 2011. We affirm the circuit court’s order in part and reverse and remand in part.

The parties were divorced by order of the circuit court on September 9, 2011. The parties were awarded joint legal custody of M.Y. and N.Y., the two children from the marriage, with Ms. McNutt having primary physical custody and Mr. Yates receiving visitation. In addition, Mr. Yates was ordered to pay Ms. McNutt $152 per week in child support, based on his income of $585 per week.

On September 28, 2011, Ms. McNutt filed a motion for contempt, request for modification, and for review of child support. In it, Ms. McNutt alleged numerous violations of the divorce decree for which she believed Mr. Yates should be held in contempt, including that Mr. Yates had harassed her by verbally abusing her; had made disparaging comments about her in the children’s presence; had hampered communication between her and the children; had failed to pay child support; had had overnight guests of the opposite sex; had used alcohol in excess; and had refused to return Ms. McNutt’s personal property. She further requested a modification of Mr. Yates’s visitation and the circuit court’s order to sell her vehicle at a commissioner’s sale. Finally, Ms. McNutt requested that the circuit court review Mr. Yates’s income because she believed it to be more than $585 per week.

On October 21, 2011, Mr. Yates answered Ms. McNutt’s motion and filed his own motion for contempt, modification, and motion for relief of outstanding issues. In it, he alleged that Ms. McNutt had violated the divorce decree when she failed to communicate with him regarding the children’s well-being; failed to inform him of emergency care or |snonroutine medical care provided to the children; denied him visitation to the point that police involvement was required; used the children to communicate with him; made disparaging remarks about him in front of the children and allowed others to do so; allowed third parties “to act inappropriately toward” him in front of the children; continued to harass him and make baseless allegations against him; and had not paid a debt for which she was responsible, such that he was receiving notices about the debt. He further requested that the first right of refusal for childcare be added to the divorce decree; that she be required to reimburse him for a joint debt that he was required to pay in full because of Ms. McNutt’s failure to cooperate; and that she be ordered to communicate with him regarding an IRS inquiry as to their joint tax return.

He subsequently filed a motion for modification of custody on March 2, 2012. Mr. Yates again alleged that Ms. McNutt had continued to be noncompliant with the circuit court’s orders and would not facilitate or promote a relationship between the children and him; he further asserted that Ms. McNutt actively attempted to disrupt his relationship with the children. In addition, he alleged that the children spent more time with Ms. McNutt’s parents than with her; that her parents’ home was “filthy” and in an unsafe neighborhood; that her parents were unable to assist the children with their homework and caused them to be late to school on several occasions; that he disagreed with Ms. McNutt’s choice of school for the children, in that it conflicted with “the religious upbringing the parties had agreed upon for the children” and was unaccredited; that Ms. McNutt refused to allow the children to participate in extracurricular activities and further prevented them from engaging in age-jappropriate4 activities, such as dancing, wearing nail polish, participating in organized sports, and wearing appropriate clothing to the extent that the children feared punishment or religious backlash; and that the children had expressed a desire to live with him. For these reasons, he stated, he sought to be granted full custody and for Ms. McNutt to receive reasonable visitation.

The matters were set for trial on April 12, 2012; but on March 16, Ms. McNutt’s counsel moved to withdraw, stating that he and Ms. McNutt had irreconcilable differences such that he could no longer represent her. The circuit court granted the motion, and on April 11, 2012, the day before the set trial date, Ms. McNutt moved for a continuance pro se. That motion was denied, and the hearing on the foregoing matters was held on April 12.

On May 9, the circuit court entered its order. In it, the circuit court found there to be a material change of circumstances in light of the fact that Ms. McNutt now had the children attending a private school not accredited by the State; she had the children attending a church associated with the school that the parties had agreed during the marriage not to attend; the children were no longer in extracurricular activities as they were during the marriage; and the children’s overall demeanor had changed in a negative way since entry of the divorce decree. The circuit court then found it to be in the children’s best interest to change custody to Mr. Yates and award visitation to Ms. McNutt. It further ordered that should either party need a care provider for the children, the other party had the first right of refusal to provide that care. In addition, the circuit court ordered Ms. McNutt to pay child support in the amount of $301 biweekly, and it retroactively modified Mr. Yates’s past child-supports obligations to April 2011, “when Mr. Yates was receiving $300/ week in unemployment compensation benefits which is $107.00/week child support.” Ms. McNutt was ordered to reimburse Mr. Yates for her share of the marital debt that he had paid to the Arkansas Department of Finance and Administration, and she was ordered to communicate with the IRS about that matter and to notify Mr. Yates of that communication. It further denied all remaining claims for relief. Ms. McNutt brings the instant appeal from this order.

I. Withdrawal of Counsel and Motion for Continuance

For her first point on appeal, Ms. McNutt argues that the circuit court abused its discretion in allowing her counsel to withdraw and in its subsequent denial of her motion for continuance. She contends that the circuit court should have denied the motion to withdraw where her former counsel stated no facts in support of his claim that there were irreconcilable differences with her and the circuit court failed to make any inquiry thereto.

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Bluebook (online)
2013 Ark. 427, 430 S.W.3d 91, 2013 WL 5859515, 2013 Ark. LEXIS 512, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcnutt-v-yates-ark-2013.