Newby v. Newby

2015 Ark. App. 540, 472 S.W.3d 513, 2015 Ark. App. LEXIS 648
CourtCourt of Appeals of Arkansas
DecidedOctober 7, 2015
DocketCV-15-48
StatusPublished
Cited by1 cases

This text of 2015 Ark. App. 540 (Newby v. Newby) 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
Newby v. Newby, 2015 Ark. App. 540, 472 S.W.3d 513, 2015 Ark. App. LEXIS 648 (Ark. Ct. App. 2015).

Opinions

ROBERT J. GLADWIN, Chief Judge

| fin this appeal of an order modifying visitation, Ashely Newby contends that the Benton County Circuit Court erred in its order filed October 17, 2014, claiming that (1) the court did not make findings of fact regarding any material change in circumstances; (2) passage of time per se does not constitute a material change in circumstances; (3) de novo review of the record does not support the'finding of a material change in circumstances; and (4) modifying visitation is- not in her child’s best interest. We affirm.

I. Statement of Facts

The parties entered into a property-settlement and child-custody-and-support agreement on August 21, 2008, which was incorporated into the divorce decree on September 11, 2008, wherein Ashely was awarded primary custody of the parties’ son, K.N., (DOB 3/26/2006), and appellee David Newby was ordered to pay $200 per month in child support. David was awarded visitation on Tuesday and Wednesday of each week, but not | ¿.overnight, and on alternate federal holidays. The decree provides that “[a]dditional visitation can be agreed upon by both parties.”

On June 18, 2014, David filed a petition for modification, claiming that a material change in circumstances had occurred. The trial court modified the visitation after a hearing wherein Ashely testified that the child had pulmonary and immunological issues since birth. She said that he had to carry an oxygen tank, he took breathing treatments, and she did not know if he would grow out of his health issues. She said that she did not -believe that David was capable of providing healthcare for their son because K.N. needed consistent medication, routine, sleep, and appointment-keeping. She said that K.N. currently took pills, inhalants, and nasal sprays. She said David was informed of doctors’ appointments until a year ago, but because he never -attended, she quit notifying him. She claimed that she kept him informed of what the doctors said. She said that she does not have concerns about the boy’s healthcare safety while he is at David’s mother Donna’s house.

She said the child’s football practice schedule was interfering with David’s visitation, hut she was willing to work around that. She said that David’s usual visitation was on Tuesdays from 3:30-5:30 p.m., but since football began, the practices started at 5:30 p.m., and it was her decision that David would not have visitation on that day. She said that David could pick a different day to visit if he would communicate with her. K.N. also had practice on Thursdays and games on Saturdays. She testified that K.N. also participated in baseball and basketball. .She.agreed that K.N. was physically able and capable of playing some fairly strenuous athletic activities with prior medication and pretreat-ing, “if he’s well.” She also|ssaid that only David’s mother could give K.N. medication, thus, allowing only overnights with David at Donna’s house. She insisted that the child should be getting twelve hours of sleep at night. She admitted that the boy could take his medications at his father’s house, but stated that David “had not chosen to do that,” She admitted that her son had been deer hunting with her current husband. She said David works at bars on Thursday, Friday, and Saturday nights from 9 p.m. until 2 a.m. This was the same schedule as when they divorced.

She said that Defendant’s Exhibit 1 (an agreement leading to the divorce settlement) states that overnight visitation would be readdressed on the boy’s third birthday. She said that there was a time when overnight visits began and the child would stay at Donna’s house every other weekend, but then “Donna and I discussed that that did not work for KN.’s schedule, once he started school and she went back to work, and, so, then, we discontinued that every other weekend schedule.” She admitted that David had a permanent residence and has had for a year.

David testified that he had given the child his medication and that the child was older and needed his father. He also stated that when Ashely was between husbands, he was able to see the child more often. He said that he went to the child’s activities, which include football, but wanted more visitation than just to watch him at whatever practices he had. He denied that they agree on visitations — he said that Ashely tells him what it will be and when. He said the only time the child ever missed getting his medication was when the child was with him, and Ashely had told him the child could do it himself. He denied that he had been invited to the doctors’ appointments. He said that he did not know which doctors the 14child was seeing. He said that he had given the child breathing treatments and his medication, but he later stated that he had only administered the inhalers and had not administered a breathing treatment. He stated that he had not had the child for more than two hours in the month preceding the hearing. He claimed that he had asked Ashely-for more predictable visitation, and she would not allow it. He said that the only way to obtain more visitation was for the court to tell her to provide it.

The trial court ordered that visitation should be modified. Paragraph 5 of the order states as follows:

The Court does find that a material change of circumstance has occurred since the entry of the last order of this Court touching on visitation between David Newby and K.N. which justifies the modification of that order and does further find that modification of the pri- or order is in the best interest of the parties’ child.

The trial court ordered that David should be entitled to reasonable access to K.N. and should have standard visitation. David was enjoined from cohabiting with any person to whom he was not married while having care of KN. The court ordered that, for next six months, David should keep Ashely informed of any childcare arrangements during his visitation. This appeal timely followed.

II. Standard of Review

The Arkansas Supreme Court stated in Moix v. Moix, 2013 Ark. 478, at 9, 430 S.W.3d 680, 685:

In domestic relations cases, we review the evidence de novo and will not reverse the circuit court’s findings unless they are clearly erroneous. Brown v. Brown, 2012 Ark. 89, 387 S.W.3d 159. We also give special deference to the circuit court’s superior position in evaluating the witnesses, their testimony, and the child’s best interest. Id. Because a circuit court maintains continuing jurisdiction over visitation, it may [¿modify or vacate a prior visitation order when it becomes aware of a material change in circumstances since the previous order. Id. The party seeking modification has the burden of demonstrating such a material change in circumstances. Id. With regard to visitation, the primary consideration is the best interest of the child. Id. Important factors for the court 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 relationship with siblings and other relatives. Id. We have held that fixing visitation rights is a matter that- lies within the sound discretion of the circuit court. Id.

Hackney v. Hackney, 2015 Ark. App. 114, at 5, 456 S.W.3d 394, 397-98.

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Related

Newby v. Newby
2015 Ark. App. 540 (Court of Appeals of Arkansas, 2015)

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Bluebook (online)
2015 Ark. App. 540, 472 S.W.3d 513, 2015 Ark. App. LEXIS 648, Counsel Stack Legal Research, https://law.counselstack.com/opinion/newby-v-newby-arkctapp-2015.