Shannon v. McJunkins

376 S.W.3d 489, 2010 Ark. App. 440, 2010 Ark. App. LEXIS 455
CourtCourt of Appeals of Arkansas
DecidedMay 19, 2010
DocketNo. CA 09-491
StatusPublished
Cited by14 cases

This text of 376 S.W.3d 489 (Shannon v. McJunkins) 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
Shannon v. McJunkins, 376 S.W.3d 489, 2010 Ark. App. 440, 2010 Ark. App. LEXIS 455 (Ark. Ct. App. 2010).

Opinion

KAREN R. BAKER, Judge.

| Appellant Tammie Shannon appeals from an order of the Craighead County Circuit Court granting appellee James McJunkins’s petition to modify custody; ordering appellant to pay child support in the amount of $140 beginning on December 19, 2008; and setting appellant’s visitation. On appeal, appellant asserts two points for reversal: (1) the trial court erred in ruling that Ms. Shannon and Mr. McJunkins were awarded joint custody in the original divorce decree; and (2) the trial court erred in changing custody from Ms. Shannon to Mr. McJunkins and thereby denying Ms. Shannon’s petition to relocate. In asserting her second point of error, she argues that the trial court erred in failing to follow a Hollcmdsworth analysis and that failure renders the trial court’s custody determination flawed and invalid, requiring reversal. While we agree with appellant that the trial court erred in finding that the | ^original decree awarded joint custody, we find no error that requires reversal. For the reasons stated herein, we affirm.

Procedural History

The parties married in February 2001, with appellant giving birth to their daughter, M.M., on August 10, 2001. On February 25, 2003, appellee filed for divorce, and on March 13, 2003, the parties filed a child custody and property settlement agreement. The agreement stated that “it would be in the best interest of [the child] for [appellant] to receive custody, and she [was] a fit and proper person to care for and maintain the [child], subject to the rights of visitation in [appellee] as set forth herein.”

Per the agreement and consistent with appellant’s role as custodian, appellant was authorized to claim M.M. as a dependent on her annual income taxes. The agreement also set out appellee’s visitation as follows: during the first week of an alternating schedule, appellee’s visitation was from 5:00 p.m. Monday through Wednesday morning; during the second week, appellee’s visitation was from 5:00 p.m. on Wednesday through Friday morning; and appellee would also receive weekend and holiday visitation, one week in the summer, and any other reasonable visitation as mutually agreed upon by both parties. The agreement provided that the parties consult with each other on all major decisions affecting M.M., including but not limited to, decisions involving education and major medical treatment. Furthermore, it acknowledged that appellee would provide health insurance for M.M. and should pay child support in the amount of $500 per month. Specifically, the | «agreement contained the provision that appellant would not remove the child on a permanent basis from Craighead County without either the prior consent of appellee or a court order prior to relocation. In addition to addressing the parenting arrangement, the agreement further set out the division of the parties’ assets, including real and personal property.

The parties’ divorce decree was filed on April 2, 2003. The decree provided that appellee was entitled to an absolute divorce from appellant on the grounds of general indignities; that there was one child born of the marriage; and that appellant would have custody of the child subject to reasonable visitation by appellee as set forth in the parties’ agreement, which was attached and incorporated therein.

Two years later, on February 4, 2005, appellant filed a petition for modification seeking an increase in child support based upon appellee’s increase in income. Several months later, appellee responded with a counterpetition in which he sought to modify the divorce decree to prohibit overnight guests of the opposite sex, unrelated by blood or marriage when M.M. was present. On November 14, 2005, the trial court entered an order pursuant to appellant’s petition to modify and appellee’s counter-petition, stating that there had been a material change in circumstances where appellee’s annual income had increased approximately $12,000 to $15,000 and appellant’s annual income had decreased approximately $8,000. The court found that appellee’s income, including bonuses, was estimated at $1,600 per week. The court deviated from the child-support chart and set child support at $800 per month, reasoning that the testimony of the parties reflected that they spent equal time with the child. 14Then, on January 30, 2006, an amendment to the November 14, 2005 order was entered, stating that the previous order was thereby amended to preclude both parties from having overnight guests of the opposite sex to whom they were not related by blood or marriage while the child was present.

On December 13, 2007, appellant filed a petition to relocate and modify the decree. In the petition, appellant indicated that a job change was the reason for relocation. She also alleged that there had been a material change in circumstances in that appellee’s income had increased substantially warranting an additional increase in his child-support obligation. Appellee filed a counterclaim alleging that a material change in circumstances had occurred, would warrant a change in custody to him, and requesting that the court require appellant to pay child support. Specifically, he alleged that appellant had overnight guests of the opposite sex while the child was present, which was a direct violation of the court’s January 30, 2006 amendment to the order. Appellee also filed a reply to the petition to relocate and modify the decree.

An eight-day trial on the matter was held in August and October 2008. At the trial’s conclusion, the trial court found that the parties had agreed to a de facto joint custody arrangement; therefore, Lewellyn v. Lewellyn, 351 Ark. 346, 93 S.W.3d 681 (2002), controlled and the court accordingly rejected the contention that a relocation analysis under Hollandsworth v. Knyzewski, 353 Ark. 470, 109 S.W.3d 653 (2003) was required. The trial court further found that a material change of circumstances existed that warranted a change |Bof custody to appellee.

I.Whether the Trial Court Erred in Finding That the Parties Had Joint Custody

Appellant first argues that the trial court erred in ruling that she and appellee were awarded joint custody in the original divorce decree. We agree that the trial judge erred as a matter of law. A trial court’s award of joint custody or equally divided custody of minor children is not favored in Arkansas unless circumstances clearly warrant such action. Thompson v. Thompson, 63 Ark.App. 89, 974 S.W.2d 494 (1998) (citing Drewry v. Drewry, 3 Ark.App. 97, 622 S.W.2d 206 (1981)). 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 an award of joint custody, and such an award is improper where cooperation between the parents is lacking. Thompson, supra (citing 24 Am.Jur.2d Divorce and Separation § 990 (1983)). We have reversed awards of joint custody where it was clear that the parties were not working in concert to raise the child. Thompson, supra (citing Hansen v. Hansen, 11 Ark.App. 104, 666 S.W.2d 726 (1984)).

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Bluebook (online)
376 S.W.3d 489, 2010 Ark. App. 440, 2010 Ark. App. LEXIS 455, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shannon-v-mcjunkins-arkctapp-2010.