Sarah Beverly v. Aundra Murphy

2022 Ark. App. 4

• Court: Court of Appeals of Arkansas
• Decided: January 12, 2022
• Status: Published

Opinion

Cite as 2022 Ark. App. 4 Elizabeth Perry I attest to the accuracy and ARKANSAS COURT OF APPEALS integrity of this document DIVISION IV 2023.08.09 11:04:33 -05'00' No. CV-21-186 2023.003.20244 SARAH BEVERLY Opinion Delivered January 12, 2022 APPELLANT APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, V. THIRTEENTH DIVISION [NO. 60DR-16-1543] AUNDRA MURPHY APPELLEE HONORABLE W. MICHAEL REIF, JUDGE

AFFIRMED

BART F. VIRDEN, Judge

Sarah Beverly appeals the Pulaski County Circuit Court’s decision to change primary

custody of AM (03/10/16) to his father, Aundra Murphy. We affirm.

I. Relevant Facts

On April 18, 2016, Aundra Murphy filed a petition for paternity of AM, and after

DNA testing confirmed Murphy was AM’s father, the court entered the decree of paternity.

The court awarded joint custody to the parents with Beverly as the primary physical

custodian. The parents shared equal time with AM. Paragraph 6 of the paternity decree

provides that

[t]he Parties resolve to communicate with each other to come to a mutual decision about the child’s life events and consider each other’s opinions for any life decision of the child. If there is a disagreement, the Mother’s decision shall prevail. If the parties disagree, they must attend mediation prior to future litigation:

.... h. The parties agree to attend mediation prior to either party filing a future motion in this litigation, unless a genuine emergency exists.

i. Each Party hereby agrees to inform the other of an intent to move at least ninety days in advance of an actual residential relocation outside of the city of Pulaski County, Arkansas.

Beverly filed a motion for relocation on February 5, 2019, requesting that the court

allow her to move to Texas with AM so she could take a higher paying job. Beverly also

asserted that Murphy, an endodontist, commuted weekly to his Peachtree, Georgia, practice

and planned to move to Georgia. The same day, Murphy filed a motion to modify custody

alleging that a material change in circumstances had occurred. Murphy asserted that, among

other grounds, in addition to Beverly’s impending move to Texas, she withheld and

prevented visitation, harassed Murphy and his wife, refused to communicate about medical

appointments, refused to let AM attend his family’s special gatherings, and stopped taking

AM to Montessori school, which caused a change in AM’s attitude toward school and in

general.

The circuit court held two hearings on the matter—one on June 3 and another on

July 26. Before the testimony began, Beverly withdrew her motion to relocate, explaining

that she decided not to take the job in Texas and was working in Little Rock. There was

extensive testimony from the parties and witnesses. Relevant to this appeal, Murphy testified

that Beverly withdrew AM from the Montessori school he was enrolled in, which caused

AM to lose his interest in learning and lowered his self-esteem. He recounted several

occasions when Beverly refused to follow the visitation order and interfered with the

exchange process. Murphy also explained that he has an interest in an endodontic practice

2 in Georgia and that he practices there when he does not have visitation with AM. Murphy

stated that a few times he was out of town during AM’s visitation because Beverly changed

the visitation schedule without his consent. Beverly testified that she had refused to allow

Murphy’s wife, Rhonda, to pick up AM for visitation at the designated time, insisting that

Murphy pick up AM after work instead. Beverly explained that when her relationship with

Murphy ended in late 2015, she moved to an apartment in West Little Rock. Later, she

moved to a different apartment in Little Rock. Beverly testified that she gave up her

apartment in January 2019 because she planned to move to Texas, but when she decided to

stay in Little Rock, she moved in with her mother, who lived in North Little Rock. Beverly

testified that she had no plans to move, and she had taken a job at the Friday Firm. Beverly

explained that the rent payment listed in her affidavit of financial means was for the mortgage

on a house in North Little Rock that she was purchasing.

On October 3, the circuit court denied Murphy’s motion for modification of

custody. The court found that Murphy did not prove that a material change of circumstances

had occurred and that Beverly withdrew her motion for relocation because she accepted a

job in Little Rock. The court modified the visitation schedule so that AM transitioned only

once a week, on Wednesdays. The parties continued to share equal time, and the court

found that Murphy’s wife was allowed to help with drop off and pick up.

On November 13, Murphy filed a motion for contempt asserting that Beverly

repeatedly prevented the Wednesday exchange of AM and provided insufficient reasons for

doing so. For example, on November 6, Beverly told Murphy that AM had a skin infection,

and he could not leave her care. Murphy asserted that he explained that a skin condition

3 was not cause to withhold visitation, but Beverly refused to allow him to have his scheduled

visitation. Later, Murphy discovered that Beverly had refused to follow the visitation order

because she had moved to Texas, and she was in Texas when it was time for the exchange.

On May 8, 2020, Beverly filed a motion to modify visitation asserting that she had

accepted a job in Austin, Texas, that was beneficial to her career. She contended that she

had been traveling between Texas and Arkansas to comply with the visitation order, and

she asserted that Murphy was living in Peachtree, Georgia, during the week; thus, a material

change in circumstances had occurred, and modification of visitation was necessary. In

response, Murphy counterclaimed for a change of custody, requesting that the circuit court

award him primary custody with reasonable visitation to Beverly.

The court held a hearing on the matter on October 1, 2020. Before testimony began,

Murphy withdrew his motion for contempt, explaining that the contempt matter “merged

into the change of custody.” The court allowed Murphy to withdraw the motion. At the

hearing, Murphy testified that he lives in Little Rock with his wife and their one-year-old

and two-month-old children. He explained that he practices in both Little Rock and

Peachtree, and he works in Peachtree on the days he does not have visitation. Murphy

testified that in April 2020, he discovered from Beverly’s discovery responses that she had

moved to Round Rock, Texas (near Austin). 1 Murphy contended that on September 21,

2019, Beverly told him that she would like to adjust the visitation schedule to take AM on

a family vacation from October 5 through 12, and he agreed; however, later, Murphy

1 The abstract incorrectly sets forth that Murphy learned that Beverly lived in Texas in April 2019.

4 discovered that Beverly had begun working in Texas that week. Murphy testified that

Beverly did not tell him that she moved to Texas, and on October 16, 2019, she mentioned

that she was only considering taking a job in Austin. Murphy explained that in November

and December, he began to be suspicious that Beverly had moved to Texas because she

would not let him exercise his visitation with AM despite his insistence that he could care

for AM’s skin condition and wanted to have his scheduled visitation. As for his own

violations of the paternity order, Murphy testified that he failed to tell Beverly about a

scheduled immunization and a dermatology appointment he made for AM.

During the hearing, Murphy requested that the court allow him to reinstate the

contempt motion stating that “she did violate [the order] and so I think I still want to pursue

that[.]” Beverly objected, arguing that Murphy had withdrawn his motion. The court

agreed with Beverly stating that “you did withdraw it at the beginning of the case and so

I’m going to hold you to that.”

The hearing proceeded, and Beverly testified that she did not move to Texas

“full time” until the beginning of 2020. Beverly explained that in April 2020, she responded

to a discovery question regarding her address by instructing counsel to refer to her May

2019 discovery response that she lived in North Little Rock. Beverly stated that she later

supplemented her response with her Texas address. Beverly stated that at the July 2019

hearing, she did not mention that in January she had leased an apartment in Texas and that

she filed the motion to relocate in February after she had accepted the job offer. Ultimately,

she did not take the job in Texas, but she could not get out of the apartment lease. Beverly

stated that at that hearing, she testified that she had no plan to move, and she worked at the

5 Friday Firm. Beverly recalled that in September 2019, she made the final decision to accept

the job in Texas and began work at the beginning of October. 2 Beverly testified that in

October, she told Murphy “face to face” that she accepted the job in Texas; however, she

also testified that in November, she told Murphy in a text that she was living in Little Rock,

and in December, when Murphy asked her where she was living, she told him that she lived

in North Little Rock. Beverly explained that she should not have misled Murphy, but she

“wanted some peace from the investigators at the moment.” Beverly explained that

typically, she had visitation with AM at her mother’s home in North Little Rock where she

also worked remotely. When it was time for Murphy’s visitation, she would leave her

mother’s home and go back to Texas, and her mom would take AM to meet Murphy.

Beverly stated that on November 6, she did not allow Murphy to have visitation because

AM’s eczema was very severe, and she denied that the real reason for her refusal was that

they were in Texas. Beverly testified that she signed AM up for an after-school-care program

in Texas in the coming year without telling Murphy.

In the written order entered December 10, 2020, the court determined that Beverly

had accepted a job in Texas in September 2019, and she had moved to Texas before the

entry of the October 3 order modifying visitation and denying Murphy’s request to change

custody. In November and December 2019, Beverly told Murphy she lived in North Little

Rock. The court found that, according to a text exchange that occurred October 16

through 19, Murphy asked Beverly when she was going to move to Texas, and she

2 The abstract incorrectly sets forth that Beverly testified she accepted the job in October 2020.

6 responded that “visitation needed to be worked out prior to any move” even though she

had already moved. The court noted that during the July 2019 hearing, Beverly was directly

asked the reason she listed a rent payment on her 2019 affidavit of financial means, and

Beverly testified that she was planning to buy a home in North Little Rock, and that amount

was her anticipated mortgage; however, at the October 2020 hearing, Beverly stated that

the rent payment listed on the affidavit was for an apartment in Texas that she had obtained

in January 2019. The circuit court found that in October 2019, Beverly asked Murphy to

modify the visitation schedule for a family vacation, and instead of taking a vacation, she

began working at her job in Texas. The court determined that “Beverly testified she cannot

coparent with Murphy and admitted to lying to him about her move to Texas.”

Additionally, the court found that Beverly had taken AM out of Montessori school in 2019,

had enrolled him in day care in Texas, and had begun searching for a school for AM without

telling Murphy. The court determined that Murphy was not without fault—he failed to tell

Beverly about a dermatology appointment made five months in advance; however, the court

also found that “Murphy did attempt to make the joint custody arrangement work.”

Relying on Singletary v. Singletary, 2013 Ark. 506, 431 S.W.3d 234, and Cooper v. Kalkwarf,

2017 Ark. 331, 532 S.W.3d 58, the court found that in deciding a request to change custody,

the circuit court must determine whether a material change of circumstances occurred since

the last order and whether a change in custody is in the best interest of the child. The court

found that a material change in circumstances had occurred: Beverly moved to Texas, lied

about major life events, testified that she could not coparent with Murphy, and did not

communicate or cooperate with Murphy. Moreover, the court found that Beverly “did not

7 do anything to promote the joint custody set out in the October 2019 order” and that the

parties could not make joint custody work. The circuit court found that it was in AM’s best

interest for Murphy to have primary custody with visitation to Beverly because “Murphy is

the more stable parent[.]” The court noted that Murphy works part time in Peachtree, but

he schedules out-of-town work around his visitation with AM. The court determined that

Beverly had removed AM from Montessori school in Little Rock when she planned to

move to Texas, and she chose not to return him to school when she changed her mind.

Beverly filed a motion for a new trial on December 21, which was deemed denied on

January 20, 2021.

On appeal, Beverly argues that the circuit court erred in relying on Singletary and

should have relied on Hollandsworth v. Knyzewski, 353 Ark. 470, 109 S.W.3d 653 (2003), in

determining whether a custodial parent can relocate. Beverly also contends that there is

insufficient evidence to support the court’s finding that a material change of circumstances

occurred.

Preliminarily, we address Beverly’s argument that the court should have relied on

Hollandsworth to determine whether she, the custodial parent, could relocate.

The circuit court correctly found that the case should be analyzed as a joint-custody

case under the requirements set out in Singletary. It is undisputed that the paternity order

awarded joint custody, and the parents shared equal time with AM. In Armstrong v. Draper,

2019 Ark. App. 114, at 5–6, 571 S.W.3d 60, 63, our court held that

[i]n Singletary, the court explained that the Hollandsworth presumption does not apply when the parents share joint custody of a child. In a joint-custody arrangement where both parents share equal time with the child, there is not one parent-child relationship to take preference over the other, and the Hollandsworth

8 rationale is inapplicable. The proper analysis for a change-in-custody request due to the relocation of one parent in a joint-custody situation is the same as that when relocation is not involved; the court must first determine whether a material change in circumstances has transpired since the initial custody order and then whether the change in custody is in the best interest of the child.

(Citations omitted.)

The circuit court did not specifically find that Beverly could not relocate with AM;

however, Beverly and Murphy shared joint custody with equal time to each parent, and the

court’s decision to change custody was in a context of parental relocation. The court

specifically relied on Singletary and Cooper—both cases involved parents who shared roughly

equal time with the child and the issue of parental relocation. To the extent Beverly argues

that the circuit court applied the incorrect standard for determining a change of custody, we

affirm the circuit court’s reliance on Singletary.

We now turn to Beverly’s remaining point on appeal regarding the court’s decision

that a material change of circumstances occurred. Arkansas law is well settled that the

primary consideration in child-custody cases is the welfare and best interest of the children;

all other considerations are secondary. Schreckhise v. Parry, 2019 Ark. App. 48, at 6, 568

S.W.3d 782, 786. Generally, courts impose more stringent standards for modifications in

custody than they do for initial determinations of custody. Id. The reason for requiring more

stringent standards for modifications than for initial custody determinations is to promote

stability and continuity in the life of the child and to discourage repeated litigation of the

same issues. Id.

The party seeking modification of the custody order has the burden of showing a

material change in circumstances. Schreckhise, supra. To change custody, the circuit court

9 must first determine that a material change in circumstances has occurred since the last order

of custody; if that threshold requirement is met, it must then determine who should have

custody with the sole consideration being the best interest of the children. Id. In reviewing

child-custody cases, we consider the evidence de novo, but will not reverse a circuit court’s

findings unless they are clearly erroneous or clearly against the preponderance of the

evidence. Because the question of whether the circuit court’s findings are clearly erroneous

turns largely on the credibility of witnesses, we give special deference to the superior

position of the circuit court to evaluate the witnesses, their testimony, and the child’s best

interest. Ford v. Ford, 347 Ark. 485, 65 S.W.3d 432 (2002). There are no cases in which the

superior position, ability, and opportunity of the circuit court to observe the parties carry as

great a weight as those involving minor children. See Vo v. Vo, 78 Ark. App. 134, 79 S.W.3d

388 (2002).

Beverly argues that the circuit court erred in finding a material change in

circumstances, claiming that “warring parents often have communication issues.” Beverly

contends that she is being singled out for her inability to coparent, and the court put an

“undue amount of merit on small communication issues” while ignoring Murphy’s failure

to notify her of a dermatology appointment. 3

Our case law holds that the mutual ability of the parties to cooperate in reaching

shared decisions in matters affecting the child’s welfare is a crucial factor bearing on the

propriety of joint custody. Doss v. Miller, 2010 Ark. App. 95, 377 S.W.3d 348. When the

3 Beverly does not propound any argument regarding the court’s best-interest determination.

10 parties have fallen into such discord that they are unable to cooperate in reaching shared

decisions in matters affecting their children, then a material change in circumstances affecting

the children’s best interest has occurred. See id. At the hearing, Beverly testified that she

could not coparent or communicate with Murphy, that she lied about a major life event,

and that she did nothing to promote the joint-custody arrangement. Contrastingly, the court

found that although Murphy failed to tell Beverly about a dermatological appointment he

made for AM, he tried to make joint custody work. We find no error in the circuit court’s

finding of a material change of circumstances.

Essentially, Beverly asks this court to reweigh the evidence, which we will not do.

Change-of-custody decisions must be based on the particular facts and circumstances of each

case in relation to the standard of the best interest of the child. Denarvaez v. Denarvaez, 2020

Ark. App. 550, at 14. And as we stated above, credibility determinations are left to the

circuit court, and we will not reweigh the evidence. Glisson v. Glisson, 2018 Ark. App. 21,

538 S.W.3d 864.

Affirmed.

GLADWIN and VAUGHT, JJ., agree.

Harrelson Law Firm, P.A., by: Steve Harrelson, for appellant.

Dodds, Kidd, Ryan & Rowan, by: Catherine A. Ryan, for appellee.