Neumann v. Smith

2016 Ark. App. 14, 480 S.W.3d 197, 2016 Ark. App. LEXIS 14
CourtCourt of Appeals of Arkansas
DecidedJanuary 13, 2016
DocketCV-15-123
StatusPublished
Cited by9 cases

This text of 2016 Ark. App. 14 (Neumann v. Smith) 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
Neumann v. Smith, 2016 Ark. App. 14, 480 S.W.3d 197, 2016 Ark. App. LEXIS 14 (Ark. Ct. App. 2016).

Opinion

RITA W. GRUBER, Judge

|, Lloyd Draughon Smith and Alicia Dawn Neumann were divorced in July 2008 by decree of the Circuit Court of Miller County. The parties later entered into a compromise settlement agreement, which the court approved in March 2009 as a modification of the original decree. On September 11, 2014, the court conducted a hearing on various motions by the parties. The court entered a final modification order in November 2014, and Ms. Neumann timely filed a motion for reconsideration. In December 2014, the court denied her motion. Ms. Neumann now appeals the final modification order and denial of her motion for reconsideration. Her points on appeal concern (1) the denial of her petition to sell the marital home, (2) the lack of a child-support order, (3) the alleged bias of the court, (4) the judge’s in-chambers conference with the children, (5) the award of true joint custody, and (6) the denial of her motion for reconsideration of custody. We affirm.

The 2008 original decree of divorce granted Mr. Smith sole custody of the parties’ |2twin children (born on December 14, 2001). Ms. Neumann was granted visitation under the circuit court’s, standard order for visitation and was ordered to pay bi-weekly child support of $437. She received as her separate property a residence .in Texarkana, Bowie County, Texas. Each party maintained a one-half ownership interest in the marital residence located in Texarkana, Miller County, Arkansas,' subject to the following:

The residence is set aside to Lloyd Smith for the use and benefit of the minor children until such time as the children reach the age of majority or are otherwise emancipated. At such time, the residence shall be sold and the proceeds of the sale, less the costs of the sale, shall be divided equally between Lloyd Draughon Smith and Alicia Dawn Neumann. If Lloyd Smith ceases to live in the residence with the children, Alicia Dawn Neumann may petition the Court to sell the residence.

The 2009 modification order and settlement agreement made changes to the original awards of custody, visitation, and child support. The parties received joint custody effective February 1, 2009; the amount of bi-weekly child support by Ms. Neu-mann was reduced to $218.50; and the parties were to split the cost of after-school care.' Ms.- Neumann continued to have the children at all times under the circuit court’s standard visitation order as well as at times when Mr. Smith was physically absent from Texarkana. Upon Mr. Smith’s anticipated “physical move” to Florida, Ms. Neumann was to become sole custodian and Mr. Smith was to have standard visitation. Regarding child support,

[a]t the time that Alicia Dawn Neumann shall become sole custodian, child support shall be set and due from Lloyd Draughon Smith in an amount specified by Administrative Order No. 10 in accordance with his earnings at that time.A separate order of support shall be entered as soon as practicable after his physical relocation, but the child support so established shall be due retroactively back to the date of the actual move.

The marital home.was to.be “immediately listed for sale and sold as soon as reasonably [,-¡practicable” upon Mr. Smith’s moving to Florida, with the proceeds less costs of sale to be divided equally as provided in the decree of divorce. A $53,809.35 judgment previously awarded to Mr. Smith in the divorce was reduced to $29,404.67, “due and payable” solely from Ms. Neu-mann’s share of the sales proceeds.

Mr. Smith never moved to Florida because his anticipated job never materialized. However, Ms. Neumann’s physical time with the .children - increased beyond what had been awarded as standard visitation and during the times that Mr. Smith was absent from. Texarkana. Beginning with the 2012-13 school year, the twins used Ms. Neumann’s address in order to attend public schools in Texarkana, Texas. On- September 11, 2014, Ms. Neumann filed an amended motion to modify custody and a petition to sell the marital residence. 1 She asserted that because of changes in circumstances, it was in the children’s best interest that she have the primary care, custody, and control of the children, subject to the reasonable rights of visitation of. Smith, and that he be required to pay child support consistent with Administrative Order No. 10. Alternatively, she requested that the parties have equal custody and time with the children and that no .child support be paid by either party.

In September 2014, the court conducted a hearing on the parties’ motions concerning material changes of circumstances and change of custody, child support, sale of the marital home, and the children’s residence. Ms. Neumann testified that she had been the primary caregiver for at least four years; that Mr. Smith intentionally had not notified her of an appointment date for one of the twins in Memphis, made pursuant to a medical referral to |4which he objected; that the twins had been attending school in Texas; that they had not primarily resided with Mr. Smith for three years and' that he no longer résided at the marital residence with them; and that the twins had indicated their choice that she be the primary custodial parent. Alternatively, she asked that the parties have equal custody and time with the children, that neither party pay child support, arid that the court order a sale of the marital residence. Mr, Smith requested an increase in the amount of child support payable by Ms. Neumann; alternatively, he requested that the parties have equal custody and time with the children and that neither party pay child support. He also requested that the children’s geographic residence be restricted to Miller County, Arkansas, or Bowie County, Texas.

The twins testified at the September 2014 hearing that they wanted to live with their mother, and the judge talked privately with them in chambers afterward. Other witnesses also testified at the hearing: Ms. Neumann’s next-door neighbor; another neighbor, friend, and fellow church member of hers, who taught the children in Wednesday-night Bible study; an after-school childcare supervisor; Ms. Neu-mann; Mr. Smith; and a friend and coworker of Mr. Smith’s.

At the conclusion of the hearing, the court expressed its belief that the parties could work together and its disbelief that the children spent a majority of their time with Ms. Neumann. The court acknowledged the twins’ testimony of their preference to live with Ms. Neumann but stated, “I don’t know if they were given the option of joint custody. The court discussed that with them, and they are willing to work toward that.” The court found that the children needed more stability and that “it would be better for the children that joint | ^custody remain in effect.” The court ordered that this would be “true joint custody ... seven days on and seven days off,” with holidays and summer to be equally split. Finding that Mr. Smith had not abandoned the marital residence, the court ruled,

A close reading of the ease — as long as that residence is being used in any matter for the children, which the court finds that it is — I don’t know that it can be sold. You can do something on that on your own if you want, but I have to stick with the court’s [previous] order. ...

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Bluebook (online)
2016 Ark. App. 14, 480 S.W.3d 197, 2016 Ark. App. LEXIS 14, Counsel Stack Legal Research, https://law.counselstack.com/opinion/neumann-v-smith-arkctapp-2016.