Cite as 2026 Ark. App. 161 ARKANSAS COURT OF APPEALS DIVISION II No. CV-25-291
Opinion Delivered March 4, 2026 SHELBY ORTIZ APPELLANT APPEAL FROM THE SEVIER COUNTY CIRCUIT COURT [NO. 67DR-18-131] V. HONORABLE BRYAN CHESSHIR, JUDGE JOHNATHAN BAGLEY AFFIRMED APPELLEE
MIKE MURPHY, Judge
Appellant Shelby Ortiz appeals from the Sevier County Circuit Court order denying
her request to change custody of the parties’ two minor children, MC1 (DOB 07/31/12)
and MC2 (DOB 08/18/16). On appeal, Ortiz argues that the circuit court erred in finding
that she did not prove a material change in circumstances. Alternatively, she argues that the
court erred in applying the material-change-in-circumstances analysis. We affirm.
Ortiz and appellee Johnathan Bagley divorced by decree on October 26, 2018. The
court awarded them joint custody of their two minor daughters, ordered that no child
support be paid, and ordered that the parties equally split time with the minor children.
In January 2019, Bagley moved to change custody. Subsequently, an agreed order was
entered on October 31, 2019. In the order, the court noted material changes before
modifying custody and the visitation schedule. It maintained that the parties have “joint custody” but designated Bagley as the “primary parent” and his home as the “primary
residence” and gave him “the right to make decisions concerning the children’s education.”
Regarding visitation, it provided that the minor children were to spend the majority of time
with Bagley, and Ortiz had parenting time on alternating weekends, school breaks, and
holidays—essentially, a 65/35 split of time. In lieu of child support, Ortiz was ordered to pay
$400 more of the children’s monthly daycare expenses.
Ortiz reopened the case in June 2023, alleging, “There has been a material change of
circumstances of the parties and the subject children in that the time of possession of the
children awarded to [Ortiz] should be modified to awarding each party equal year-round
possession time with the children.” She also asked the circuit court to modify the financial
obligations to correspond with the possession change. Bagley moved for summary judgment,
arguing that Ortiz failed to plead any genuine material facts supporting a material change in
circumstances. In response, Ortiz filed a supplemental pleading alleging the following
“material and substantial changes of circumstances”:
a) The minor female children are older now and need additional time with their mother in order for her to be able to discuss with the children matters relating to feminine hygiene and other feminine matters;
b) Plaintiff, Jonathan Bagley, has remarried and been divorced causing emotional conflict in the minds of the children;
c) Movant has decreased her employment hours at St. Vincent Hospital in Hot Springs and has started working as the school nurse at Nashville Junior High School;
d) Movant and her husband have purchased a new home in a better environment;
2 e) Movant’s mother and sister have relocated to Nashville from Magnolia which allows the children more opportunity to interact with them and the children’s cousins;
f) Movant has birthed another girl child which would allow the subject children to interact with their half-sister;
g) The Arkansas law regarding custody of minor children now presumes it’s in the best interest of the children that each parent should have equal time with the children;
h) The Summer visitation schedule of alternating weeks between the parties with the children has shown to be beneficial to the children and should be extended to include the entire year; and
i) The Movant’s present income has changed and the calculations as to approximate child support to be paid by the parties has changed and should be utilized in determining present appropriate support to be paid.
A hearing was conducted on December 16, 2024, and established the following. On
July 24, 2019, Ortiz remarried Kolton Ortiz, and two daughters were born of that marriage:
one in 2020 and one in 2023. Ortiz wanted to encourage a sibling relationship with her two
sets of daughters. Ortiz was previously renting a home in Nashville, Arkansas, but moved to
Mineral Springs, Arkansas, with her new husband because “it was a better environment and
better neighborhood, and they purchased a larger house.” Ortiz estimated the children had
140 overnights with her in the past year. In May 2024, Ortiz resigned from her job as a
school nurse to work as a nurse at a hospital in Hot Springs and as a home hospice nurse.
At the time of the hearing, she was enrolled at UAMS earning her doctorate in family
nursing. Ortiz emphasized that the children are “older now and needed their mom.” Ortiz
testified that one of the minor children was “standoffish” after Bagley’s divorce from his
3 second wife. She acknowledged that Bagley does a good job with the children and gets them
to all their appointments and extracurriculars and that she could not find any fault in the
way he is raising the children.
Bagley and his current wife married in spring 2022 but then divorced in April 2023.
They remarried in November 2023. Bagley does not think Ortiz is a bad mother, but he
believes she is “a little irresponsible at times” and “could be there more for the minor
children than she has been.” When explaining his reasoning for his opposition to the
modification, he stated he does not “feel like when she does get extra time she uses it.” To
support this, Bagley said she takes the minor children to stay overnight at her mom’s or
sister’s home, sometimes two nights of the week she has the minor children. Additionally,
he referenced some problems with Ortiz occasionally being late taking the children to a
doctor’s appointment or a game.
Kolton Ortiz testified that he thinks both Ortiz and Bagley are good parents.
Ortiz’s mother and sister had moved closer and teach at the school the minor children
attend. Ortiz’s sister disagreed that Ortiz “pawned [the minor children] off” on anyone. Her
sister acknowledged that Ortiz does seek help, but the family does it because they are family,
and Ortiz is going through school.
At the conclusion of the testimony, Bagley moved for directed verdict, arguing that
there had been no evidence presented of a material change in circumstances. The court
agreed and entered its order on February 26. From that order, Ortiz timely appealed.
4 Here, our review is directed toward the circuit court’s grant of Bagley’s motion to
dismiss. When deciding a motion to dismiss made after the presentation of the plaintiff’s
case, it is the circuit court’s duty to determine whether, if the case were a jury trial, there
would be sufficient evidence to present to a jury. Hobby v. Walker, 2011 Ark. App. 494, 385
S.W.3d 331. The circuit court does not exercise its fact-finding powers, such as judging the
witnesses’ credibility, in making this determination. Id. On appeal, we view the evidence in
the light most favorable to the nonmoving party, giving the proof presented its highest
probative value and taking into account all reasonable inferences deducible therefrom. Id.
We affirm if there would be no substantial evidence to support a jury verdict. Id. In other
words, when “the evidence is such that fair-minded persons might reach different
conclusions, then a jury question is presented, and the directed verdict should be reversed.”
Wilson v. Powers, 2012 Ark. App. 351, at 3–4, 415 S.W.3d 599, 602.
First, it is important to determine what type of custody arrangement Ortiz and Bagley
share. This determination matters because if they do not have joint custody, then the circuit
court correctly dismissed Ortiz’s motion. Conversely, if Ortiz and Bagley share joint custody
of the children, then a “parenting time” analysis as contemplated by Nalley v. Adams, 2021
Ark. 191, 632 S.W.3d 297, might arguably apply. See id. (holding that the material-change-
in-circumstances analysis is not triggered when the parties maintain joint custody and neither
party seeks an actual change of custody); see also Sellew v. Davis, 2024 Ark. App. 390, 691
S.W.3d 285.
5 Notably, in Nalley the supreme court distinguished between visitation exercised by a
noncustodial parent and the allocation of time between joint custodians. When a parent
who lacks joint custody requests additional time beyond that provided in the decree, the
request constitutes a modification of custody or visitation and therefore requires proof of a
material change in circumstances. By contrast, when parties share true joint custody, a
reallocation of time between equal custodians does not alter the underlying custodial status
and therefore does not, by itself, trigger the material-change analysis.
Turning to the arrangement at hand, while it is true that the 2019 order did use the
phrase “joint custody,” it also designated Bagley the “primary parent,” with “visitation”
awarded to Ortiz. Our courts have consistently held that this type of language creates an
ambiguity that must be resolved; therefore, review the parties’ subsequent statements and
conduct. We resolve the ambiguity by looking to other parts of the order, to the parties’
testimony about what they intended, and to their conduct. Singletary v. Singletary, 2013 Ark.
506, at 10–11, 431 S.W.3d 234, 241; see also Cooper v. Kalkwarf, 2017 Ark. 331, at 16, 532
S.W.3d 58, 67 (also emphasizing that a joint-custody arrangement does not necessarily
involve a precise “50/50” division of time).
Here, after review, it is clear that the parties did not share joint custody of the
children. Bagley was granted rights that exceeded those of Ortiz under the agreed order; for
example, Bagley had the exclusive right to designate the primary residence of the children;
he had the “right to make decisions concerning the children’s education” while Ortiz had
the “right to [be] consulted” about the children’s education; and Bagley had the right to
6 “designate persons” to be notified in the event of an emergency, whereas Ortiz only had the
right to “be designated.” Concerning time with the children, the agreed order used the term
“visitation” rather than “timesharing” and did not contain language explicitly stating that
the goal of the arrangement was to share equal time. But see Sellew, 2024 Ark. App. 390, at
15, 691 S.W.3d at 294 (holding a true “joint custody” arrangement was established even
when the “parenting plan” did not mention the term “joint custody” but spoke of shared
parental responsibility and stated that the goal was to share time with the child as equitably
as possible).
Because the parties did not share joint custody, it was therefore appropriate for the
circuit court to treat the motion as one to change custody or visitation. See Baggett v. Benight,
2022 Ark. App. 153, at 9, 643 S.W.3d 836, 841 (“Because the requisite burden of proof is
the same for both a modification of custody and a modification of visitation, we need not
decide which one Sam requested.”).
The party seeking modification of the custody order has the burden of showing a
material change in circumstances. Ellington v. Ellington, 2019 Ark. App. 395, 587 S.W.3d
237. To change custody, the circuit court 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. Nguyen v. Yassin, 2025 Ark. App. 589, at 5, ___ S.W.3d ___,
___. The reasons for requiring more stringent standards for modifications than for initial
custody determinations are to promote stability and continuity in the life of the child, and
7 to discourage repeated litigation of the same issues. Hobby v. Walker, 2011 Ark. App. 494, at
7–8, 385 S.W.3d 331, 335. The party seeking modification has the burden of showing a
material change in circumstances. Id.
Ortiz argues that the circuit court clearly erred in finding that there had been no
material change in circumstances. She does not dispute the court’s finding that Bagley “is
doing a good job of raising the minor children.” Instead, she asserts that the circuit court
failed to consider several significant factors: the emotional impact of Bagley’s divorce and
subsequent remarriage; the birth of Ortiz’s two additional children, which required increased
bonding time; and changes in her work schedule, educational pursuits, and relocation to a
home in a more favorable environment. Ortiz further contends that, since the entry of the
2019 agreed order, statutory law has evolved to establish a rebuttable presumption in favor
of joint custody; she claims this is a development the court should have taken into account.
At a minimum, Ortiz maintains that the cumulative effect of these circumstances constitutes
a material change warranting modification. We disagree.
Concerning the emotional hardship following Bagley’s divorce and remarriage, Ortiz
relies on her testimony that the divorce caused one minor child to become “standoffish” and
prompted the other to remark that there was “a lot of fighting.” However, as Ortiz concedes
in her brief, the adverse impact described was minimal.
The next factors Ortiz asserts the court failed to consider—additional children with
her current husband, adjusting her work schedule, pursuing further education, and
relocating to a better environment—involve changes in her own circumstances. We have
8 consistently held that a change in the circumstances of the noncustodial parent alone is not
sufficient to justify a change of custody. Piker v. Piker, 2022 Ark. App. 480, at 6, 655 S.W.3d
754, 758.
Moreover, while Ortiz briefly worked in Nashville, she had returned to Hot Springs
by the time of the hearing. Concerning the half siblings, we held in Middleton v. Middleton,
83 Ark. App. 7, 15–16, 113 S.W.3d 625, 629–30 (2003), that remarriage and birth of a new
child does not constitute a material change. And while furthering one’s education is
commendable, we have held that voluntarily choosing a better life—standing alone—does not
constitute a material change. Jones v. Jones, 326 Ark. 481, 491, 931 S.W.2d 767, 772 (1996);
see also Orantes v. Orantes, 2011 Ark. 159, at 8, 381 S.W.3d 758, 764 (custody should not be
modified to punish or reward parents, and greater resources or income alone are
insufficient).
The last factor Ortiz relies on to support her contention of a material change in
circumstances is the change in law to Arkansas Code Annotated section 9-13-101 (Supp.
2025). Since the agreed order was entered, the statute now creates a rebuttable presumption
that joint custody is in a child’s best interest. It further provides that in the event a court
determines that the presumption has been rebutted and does not award joint custody, the
legislature provided that the noncustodial parent is still entitled to “reasonable parenting
time.” Ark. Code Ann. § 9-13-101(b)(1)(A)(vii). Although these laws apply specifically to
initial custody determinations, they have been considered and applied in other custody
determinations recognizing the preference for divorced parents to share equal time with their
9 children unless clear and convincing evidence demonstrates it is not in the best interest of
the child. See generally Wallis v. Holsing, 2023 Ark. App. 137, at 8, 661 S.W.3d 284, 289. That
said, as it stands, a change in the law alone does not constitute a material change in
circumstances. Our courts continue to require proof of a material change as a prerequisite
for modifying custody. See Stewart v. Stewart, 2025 Ark. App. 97, at 14 (“While we have
struggled with how to implement the legislative direction in favor of joint custody, Ark. Code
Ann. § 9-13-101(a)(1)(A)(iv)(a) (Supp. 2023), especially when it comes to modifications, we
have concluded that there is one constant. Any modification of an original determination
requires changed circumstances[.]”)
Even considering all the factors together, there has not been a material change
because Ortiz has presented only minor complaints and self-created conditions. The circuit
court did not err in finding that Ortiz failed to meet her burden of demonstrating the
existence of a material change in circumstances.
Alternatively, Ortiz contends that, even absent a material change in circumstances,
she is entitled to additional parenting time pursuant to Nalley, 2021 Ark. 191, 632 S.W.3d
297. However, as explained above, the parties did not share joint custody. Accordingly, the
circuit court did not err in declining to treat this case as a Nalley adjustment in parenting
time.
Affirmed.
KLAPPENBACH, C.J., agrees.
VIRDEN, J., concurs.
10 BART F. VIRDEN, Judge, concurring. I agree with the result of our decision today. I
agree that the trial court did not err in finding there was not a material change of
circumstances. However, I believe that such showing was required only because both parties
said it would be required in the last agreed order. I am not so sure that it would otherwise
be required after the Nalley decision. Is it Nalley or not? And if it is, what does that mean?
The case before us is yet another example of the tumult resulting from the supreme
court’s decision in Nalley v. Adams, 2021 Ark. 191, at 7, 632 S.W.3d 297, 301, and its
creation of “adjustment of parenting time.” Litigants, attorneys, and especially circuit courts
need to know what the rules are before they can attempt to comply with them. What is
“joint legal custody,” “joint custody with primary custody,” “joint custody with specific
visitation,” et cetera?
We know that joint custody is favored as a matter of public policy in the state and has
been codified by the legislature. Ark. Code Ann. § 9-13-101(a)(1)(A)(iii) (Supp. 2025). It has
been declared by our court and the supreme court. Young v. Tash, 2025 Ark. App. 582, ___
S.W.3d ___; Heileman v. Cahoon, 2024 Ark. 164, 699 S.W.3d 85. Joint custody has even
been defined by legislation as “the approximate and reasonable equal division of time with
the child by both parents individually as agreed to by the parents or as ordered by the court.”
Ark. Code Ann. § 9-13-101(a)(5). Yet we continually see hybrid or “alternative” definitions
used by trial courts. Post-Nalley, we see litigants asking for an adjustment of parenting time
instead of change of custody, as was the case here. Sometimes we declare in our opinions
that we can look beyond the language of the order that purports to establish joint custody to
11 the actual arrangement and practices of the parties. (Heileman, supra). And sometimes we
don’t (Nalley, supra; Szwedo v. Cyrus, 2020 Ark. App. 319, 602 S.W.3d 759).
As a result of this Gordian knot, all the stakeholders (a currently fashionable term)
previously mentioned are left on a rudderless ship hoping for favorable winds. It need not
be so. The requirement of magic words like “material change of circumstances” in some
instances no longer serves a purpose. The effect of language used is cautioned by the supreme
court in Heileman: “[W]hen circuit courts are adjusting parenting time, they should be
cognizant of the terminology they use and pay attention to whether an adjustment in
schedule might turn into a de facto change in custody.” 2024 Ark. 164, at 8, 699 S.W.3d at
90.
So what is a trial court to do? In Nalley, the order said it was “joint legal custody,” and
then went on to set out a specific visitation schedule for the father. 2021 Ark. 91, at 2, 632
S.W.3d at 299. True joint custody was not reasonable due to the distances between the
parties. (But what is that distance threshold? There is always some reason for not having true
joint custody.) So in Nalley the parties did not actually have joint custody, either by statutory
definition or in practice. Nonetheless, our supreme court decided that the parties did have
joint custody, and the change sought was not a change of custody or visitation despite the
assertions of the parties and the trial court treating it as such. The supreme court went on to
(rightly in my opinion) affirm the trial court’s grant of more time with the father to achieve
what would actually be joint custody by creating a new label of “adjustment of parenting
12 time.” Id. at 7, 632 S.W.3d at 301. The end result was the same as ordered by trial court and
only made sense given the change in residence of the father.
In the case before us, the same is true. The order says the parties shall have joint
custody but set out specific visitation that was clearly less than 50/50. Borrowing language
from Nalley, Ms. Ortiz didn’t petition for a change of custody but rather an adjustment to
“parenting time.” Thus, I am left with strong doubt that, on the operative facts, this case is
easily distinguishable from the Nalley decision. Even more interesting is the congruity with
Nalley in that here, Ms. Ortiz was seeking to move closer to true joint custody as was the case
in Nalley—a disposition presumed to be in the children’s best interest.
Again, I implore the supreme court, the legislature, or some other higher power to
clarify this area of the law. It can be done effectively and simply. There may be some rending
of garments or gnashing of teeth at such a sea change, but it is logical to do so at this time.
All the precedent that has led to this current state of linguistic gymnastics was premised on
the old notions of child custody: one parent has custody, and one parent gets visitation. As
our supreme court and legislature have plainly pointed out, that is no longer the case.
The simple solution I suggest is this: begin with the presumption that there should
be joint custody as defined by the statute. If, in the determination of the circuit court, that
cannot be achieved for whatever reason (geographic distance, abilities of the parties, needs
of children, etc.), the circuit court can order primary custody and visitation accordingly,
keeping in mind what we have always claimed was the polestar consideration, the best
interest of the child(ren). Grayson v. Anderson, 2023 Ark. App. 428, at 5, 675 S.W.3d 900,
13 903. The trial court should give the reasons for not ordering joint custody. Later, if those
reasons change or new considerations come into play, either party can return to court and
ask for change. It should not matter who created the change or if it is “material.” The only
thing the trial court should be concerned with is whether that change is enough to move the
best-interest needle.
As an appellate court, we would then abide by our standards of deferring to the trial
court on matters of credibility and findings of fact. In doing so, we would all actually be
considering the best interest of the children first rather than first determining which label
fits the proceeding. There are no cases in which the circuit court’s superior position, ability,
and opportunity to observe the parties carry as great a weight as those involving minor
children. Shrable v. Shrable, 2025 Ark. App. 454, 724 S.W.3d 605.
It seems that in child-custody cases, we can no longer see the forest because we have
become tasked with assigning specific labels and applying disparate burdens to its composite
trees. Here, regardless of label, the parties agreed—and the court accepted the agreement in
the last order—that a material change of circumstances must occur, and they should be held
to that agreement.
Accordingly, I concur.
Langdon*Davis, L.L.P., by: Brent M. Langdon and Colton R. Langford, for appellant.
Brasel Law Firm, PLLC, by; Aaron R. Brasel, for appellee.