Sill v. Sill

228 S.W.3d 538, 94 Ark. App. 211

• Court: Court of Appeals of Arkansas
• Decided: February 15, 2006
• Docket: CA 05-703
• Status: Published

Opinions

Wendell L. Griffen, Judge.

Tisha Sill appeals from an order denying her petition to relocate and requiring her to move back to Arkansas from Oklahoma. She argues that the trial court “denied” her the presumption favoring relocation, failed to properly apply the relocation factors, and denied her petition to relocate in order to punish her for failing to comply with its previous orders. We disagree, hold that the trial court’s decision is not clearly erroneous, and affirm.

I. Factual and Procedural History

Tisha and appellee Charles Sill were divorced in August 2003. Two children were born of their marriage: Mackenzie, d.o.b., October 4, 1996, and Keely, d.o.b., February 15, 2002. Tisha and Charles are both originally from Miami, Oklahoma. Tisha lived in Rogers, Arkansas when she filed her petition to relocate; Charles lived in nearby Bentonville, Arkansas (approximately thirty miles from Rogers). Miami, Oklahoma, is located approximately one hour and fifteen minutes from the Bentonville area by automobile. Both Tisha and Charles have extended family in the Miami area; neither has extended family in Arkansas.

On July 22, 2004, Charles and Tisha were arrested for domestic battery relating to an altercation between them that occurred at Tisha’s home, in front of the children. Charles thereafter filed a petition for an emergency hearing alleging that he had been denied part of his summer visitation with the children; this motion was apparently denied. Tisha countered with a petition to modify the visitation to provide for the exchange of the children to occur at a neutral site; her motion was granted on August 3, 2004.

Shortly thereafter, on August 13, 2004, Tisha filed a petition to relocate to Miami. She then relocated before the court ruled on her motion. Tisha alleged in her petition to relocate that she had obtained employment with the Miami Public School District beginning in August 2004; that she and Charles had extensive family in the Miami area; that the parties could arrange additional time for Charles’s visitation so that he would not lose any visitation as a result of the relocation; and that during those times when Charles’s work requires him to travel, his visitation could be exercised by his relatives, thus fostering a stronger relationship between the children and Charles’s extended family. For these reasons, Tisha asserted that it was in the children’s best interest for her to relocate to Miami.

In response, Charles filed a motion to modify custody and a motion for contempt, based on Tisha’s failure to pay marital debt and insurance premiums as ordered in the parties’ divorce decree. The trial court entered a temporary order modifying the visitation and transportation schedule in light of Tisha’s relocation. Because Charles could not exercise his mid-week visitation after the move, the trial court authorized his parents, who lived near Tisha, to exercise a mid-week visitation.

The hearing on the motions was held on January 11, 2005. Tisha testified that in May 2004, she began seeking a job closer to her family because she wanted her family’s moral and financial support for herself and her daughters. She also testified that she and the girls often spent weekends and holidays in Miami. She maintained that it was “easier” to be near her extended family.

Tisha is a teacher, who, at the time she filed the petition to relocate, was earning approximately $40,000 per year as a teacher in the Rogers School District; she admitted that the teachingjob in Oklahoma paid only $29,000 annually. However, she claimed that the cost of living in Miami was 30%-40% lower and cited as proof the fact that she paid approximately $200 per month less in rent in Miami than in Rogers and that she thought gasoline was cheaper in Miami.

Tisha also testified that she had not paid the marital debt as ordered because she did not have the money to do so. When asked why she accepted a job paying approximately $12,000 less per year when she could not pay her marital debts due to financial difficulties, she responded, “Because money is no option when it comes to my children.”

Because Charles does not cross-appeal from the trial court’s denial of his petition to modify custody, and because Tisha does not appeal from the trial court’s contempt findings, it is not necessary to recount in great detail the testimony or findings concerning custody or visitation. It is sufficient to recount that the trial court found that neither parent had acted in an exemplary manner, that Tisha’s testimony was not credible in some respects, and that she was in contempt because she had arbitrarily altered or denied visitation to Charles.

Finding that Charles had rebutted the presumption in favor of relocation, the trial court denied Tisha’s petition to relocate and ordered her to move back to Arkansas. The court concluded that Tisha

is not doing one thing to encourage or better the relationship with the children and their father and frankly, from watching her testify and watching the demeanor of the parties and witnesses on the stand, I am of the belief that she moved to Miami and changed jobs for the sole purpose of making it difficult for [Charles] to have contact with his children. She has not bettered her financial situation in the least. She gave up probably $12,000 a year in income to do it.

(Emphasis added.)

The court determined that Tisha relocated “for the sole purpose of thwarting [Charles’s] visitation with the minor children” and further determined that Charles had been “robbed” of any opportunity to have lunch with his daughters or participate in extracurricular activities. It stated: “I see absolutely no good reason why [Tisha] moved away from here except to impose that burden on him and attempt to alienate his children from him.”

With regard to the best interests of the children, the trial court stated:

Frankly, she is in contempt for interfering with visits. She has interfered with the relationship. The problem is trying to decide what is in the best interest of these two little girls, and that is where I am having the biggest problem is trying to decide if I can force [Tisha], because that is what it is going to take, to comply with the court orders without taking the kids out of the home.

The court concluded that the relocation would be more detrimental to MacKenzie than having her “remain” in Arkansas and found that relocation to Miami was not in the best interest of the children.

The trial court found Tisha in contempt for her failure to pay marital debt and insurance premiums. However, it denied Charles’s petition to modify custody, finding that although a material change of circumstances occurred because Tisha violated the trial court’s orders regarding visitation, it was in the children’s best interests for custody to remain with her. The court authorized Charles’s parents to continue mid-week visitation until Tisha moved back to Arkansas. Tisha has since moved back to Arkansas with her daughters.

II. Hollandsworth Factors

Tisha now challenges only the denial of her petition to relocate, arguing that the trial court denied her the presumption in favor of relocation, that it failed to apply all of the relocation factors, that it erred in determining that the presumption in favor of relocation had been rebutted, and that it denied her petition to relocate to punish her for failing to comply with its orders.

We review the denial of a petition to relocate de novo but will not reverse the trial court’s findings unless they are clearly erroneous. Parker v. Parker, 75 Ark. App. 90, 55 S.W.3d 773 (2001). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake was committed. Id. Because none of Tisha’s arguments leave us with a definite and firm conviction that the trial court made a mistake, we affirm.

The factors a trial court must consider when determining whether to grant a petition to relocate were set out in Hollandsworth v. Knyzewski, 353 Ark. 470, 190 S.W.3d 653 (2003). These factors include: (1) the reason for relocating; (2) the educational, health, and leisure opportunities available in the new location; (3) the effect of the move on the visitation and communication schedule of the noncustodial parent; (4) the effect of move on extended-family relationships in Arkansas and the new location; (5) the children’s preferences, considering the ages and maturity level of the children and the reasons given for the preference. Id. Even when these factors are considered, the polestar interest remains whether it has been established by a preponderance of the evidence that a proposed relocation would serve the child’s best interests. Id. A presumption exists in favor of relocation for custodial parents with primary custody, with the burden being on a noncustodial parent to rebut the presumption. Therefore, a custodial parent is not required to prove a real advantage to herself or himself and to the children in relocating. Id.

Before applying the Hollandsworth factors to the instant case, we first consider Tisha’s argument that she was “denied” the benefit of the presumption favoring relocation. She argues that she was denied the presumption because “the trial court summarily found that Mr. Sill had overcome the presumption in favor of relocation without applying the presumption standard in light of the factors to be considered.” In other words, she contends that she was denied the benefit of that presumption because the trial court found that Charles rebutted the presumption.

However, nothing in the record leads us to conclude that the trial court failed to apply the presumption in favor of relocation that was established by the holding in Hollandsworth. Granted, the trial court observed that Tisha “has not bettered her financial situation in the least;” yet when this comment is viewed alongside the court’s other findings and comments it is clear that the court did not fail to apply the presumption. Rather, the trial court determined that the presumption had been rebutted. In fact, the trial judge made a specific finding that the presumption had been rebutted in her written order.

Further, consideration of the Hollandsworth factors supports the trial court’s determination that the presumption favoring relocation was rebutted. We first address the factors on which the trial court relied to the greatest extent.

A. Effect of Relocation on the Non-Custodial Parent

Clearly, the predominant factor in the trial court’s decision was the effect of the relocation on Charles’s visitation and communication schedule. After Tisha moved, the visitation schedule was modified to allow Charles’s parents to exercise mid-week visitation because Charles was unable to exercise that visitation. Charles’s visitation was also expanded to allow for the additional driving time required to transport the children a greater distance. Charles and his parents testified regarding Tisha’s actions in thwarting visitation with him and them; Charles also testified regarding his inability to participate in mid-week activities, such as having lunch with the girls at school or at day care.

Tisha maintains that because the overall time that Charles would spend with the children would not be lessened by the relocation, the modification order adequately balanced Charles’s visitation rights with her right to relocate. Blivin v. Weber, 354 Ark. 483, 126 S.W.3d 351 (2003). She further asserts that the distance between Miami and Bentonville is minimal compared with the distances in other cases in which the appellate courts have approved of the noncustodial parent’s relocation. See, e.g., Hollandsworth, supra (approving relocation of a distance of 500 miles).

Her arguments are unpersuasive. First, Blivin is inapposite because there was no finding in that case that the custodial parent deliberately thwarted visitation with the noncustodial parent. By contrast, the issue for the trial court in the instant case was not the quantity of visitation that was feasible if the relocation petition was granted, but whether Tisha desired to move as part of her ongoing effort to interfere with Charles’s visitation. Pursuant to the modified visitation made necessary by the relocation, the court concluded that Charles had been “robbed” of any opportunity to see his daughters during the week and that the reason Tisha moved was “to impose that burden on him and attempt to alienate his children from him.” Accordingly, the court did not agree that the effect of the relocation on Charles’s visitation schedule was minimal and that his visitation rights would be adequately preserved. Based on our de novo review of the record, we agree with the trial court’s conclusion that the this Hollandsworth factor weighs in favor of rebutting the presumption in favor of relocation.

B. Reason for Relocation

Second, even though our courts have approved relocations of even greater distances than the distance involved in this case, the court determined that the reasons Tisha cited for relocating were, in essence, pretextual, and that the real reason she wanted to move was to further thwart Charles’s visitation. The reasons cited by Tisha were that: 1) she and Charles were from Miami, they both had extended family there, and the girls had spent a lot of time there; 2) Tisha desired the financial and moral support of her family; 3) the cost of living was 30-40% lower in Miami; 4) the girls were faring well in Miami; 5) Tisha’s parents have a good relationship with the girls and with Charles’s parents, and Charles’s parents exercised mid-week visitation when it was granted to them. Given that Tisha did not challenge the trial court’s finding that she deliberately thwarted Charles’s visitation, she has little ground to argue that this factor weighs in her favor.

Moreover, while Tisha was not required to present evidence that the relocation offered an advantage to the family unit in order to receive the benefit of the presumption in favor of relocation, we cannot ignore that her own testimony regarding her pay cut and the alleged cost of living weighs in favor of the trial court’s finding that the presumption had been rebutted. While Tisha paid $200 per month less for rent in Miami (a decrease of 25%), thus saving her $2400 per year in rent, she nonetheless exposed herself and her children to a net income loss of $9600 due to her pay cut (the net sum of the $12,000 pay cut minus $2400). Her assertion that money is not an option when it comes to her children is unpersuasive given her testimony that she did not have enough money while earning a greater income to pay debts that the court ordered her to pay before she petitioned to relocate. Logic dictates that a person does not move from one place to another citing the need for financial assistance when the move itself would increase the need for financial assistance.

Further, it is contradictory that Tisha would be unable to receive moral or financial support from her family if she lived in Arkansas when she asserted that she and the girls visited them often before they moved to Miami. The presumption in favor of relocating does not exist merely to make it easier for the custodial parent to receive moral or financial support from her family, irrespective of the actual effect of the move on the children. In any event, requiring Tisha and the girls to remain in Arkansas will not deprive them of any needed moral or financial support — Tisha’s family may assist them financially and morally wherever they may live.¹ These facts cited above, in addition to the trial court’s conclusion that Tisha deliberately thwarted visitation, support the trial court’s conclusion that Tisha’s true reason for relocating was to further thwart Charles’s. visitation. As such, we agree that appellant’s reason for relocating weighs in favor of rebutting the presumption favoring relocation.

C. Effect of Relocation on Extended Family Relationships

The remaining reasons for relocating cited by Tisha go to another factor, the effect of the relocation on extended-family relations. According to the testimony, no extended-family members reside in Arkansas, whereas in Miami the girls would have access to extended family on both sides of their family. Further, it appears that both the maternal and paternal grandparents were regularly involved with Mackenzie and Keely while the girls were in Miami. However, Tisha testified that she and the girls often visited relatives in Miami. Thus, relocation would not afford the girls the opportunity to become acquainted with family members they did not know; nor would remaining in Arkansas deprive the girls of the opportunity to continue their relationship with their extended families.

D.' Remaining Hollandsworth Factors

The remaining factors, the educational, he’alth, and leisure opportunities available in Miami and the preferences of the children, were not relied on by the trial court, presumably because little or no evidence was offered concerning those factors. The only evidence regarding the opportunities available in Miami seems to be that Mackenzie played soccer and was enrolled in school at Miami and that Keely was enrolled in day care, but there was no evidence that Mackenzie could not play soccer in Rogers, that the Miami school offered greater educational opportunities than the Rogers schools, or that Mackenzie or Keely otherwise fared better in Miami. The trial court made no specific finding regarding this factor and both parties concede that either Arkansas or Oklahoma would provide sufficient opportunities for the children. Thus, this factor does not weigh in favor or against rebuttal of the presumption. Finally, neither child testified, so no evidence was obtained regarding the last Hollandsworth factor, the children’s preference as to where they live.

It is true, as Tisha asserts, that the trial court did not discuss each of these factors in its oral findings or its written order. However, the trial court is not required to make specific findings with regard to each factor, unless specifically requested to do so. See Ark. R. Civ. P. 52(a). Tisha failed to make a request for specific findings; thus, she cannot now argue that the trial court somehow erred in failing to specifically discuss each Hollandsworth factor. For the foregoing reasons, we hold that the trial court properly applied the Hollandsworth factors and did not err when it determined that the presumption in favor of relocation had been rebutted.

III. Best Interests of the Children

We further hold that the trial court did not clearly err in determining that it was in the children’s best interests to live in Arkansas. Tisha asserts that the court did not explain why it found that it would not be in the children’s best interests to relocate. She maintains that there was no evidence that the children’s best interests were not satisfied by the relocation to Oklahoma and that, to the contrary, the relocation caused only a slight disruption in Charles’s visitation. She attempts to superimpose the presumption that relocation offers an advantage to the family unit atop the best-interest determination — that is, she seems to assert that because it is presumed that relocation offers a real advantage, it is also presumed that relocation is in the best interests of the children, regardless of the actual effect of the relocation on the children.

Rather, a trial court is to exercise all its powers of perception in viewing the witnesses and their testimony when determining the best interest of the children. Apel v. Cummings, 76 Ark. App. 93, 61 S.W.3d 214 (2001). Further, the court may consider the custodial parent’s interference with the noncustodial parent’s visitation when determining the best interests of the child. Turner v. Benson, 59 Ark. App. 108, 953 S.W.2d 596 (1997).

In this regard, the trial judge stated:

Frankly, [Tisha] is in contempt for interfering with visits. She has interfered with the relationship. The problem is trying to decide what is in the best interest of these two litde girls, and that is where I am having the biggest problem is trying to decide if I can force [Tisha], because that is what it is going to take, to comply with the court orders without taking the kids out of the home.

The judge further determined that the relocation would be more detrimental to MacKenzie than having her remain where she was and stated that relocation to Miami was not in the best interest of the children. Perhaps the trial judge’s findings regarding the best interests of the children might have been more clearly stated, but we find no error because the same facts that support holding that the relocation presumption was rebutted also support the conclusion that relocation was not in the best interest of the children.

It is true that the trial court could have granted Tisha’s request to relocate even though she violated prior visitation orders. Friedrich v. Bevies, 69 Ark. App. 56, 9 S.W.3d 556 (2000) (finding the custodial mother was entitled to move to another state, despite her prior failure to comply with visitation orders and the parties’ problems with visitation, where she obtained new employment in the other state, where her salary increased from $32,000 to $55,000 per year, where her new job did not require travel and work on Saturdays as her old job had, and where the trial court was convinced that she would cooperate with her former husband regarding visitation). However, unlike the situation in Friedrich, here, the financial effects of the move would be detrimental to the children. Further, the trial court in Friedrich was convinced that the custodial parent would cooperate regarding visitation. To the contrary, based on Tisha’s prior conduct, the trial court here was convinced that Tisha would continue to interfere with Charles’s visitation if the girls lived in Miami. Neither the trial court nor this court is required to afford her that opportunity. Moreover, on this record, we are not inclined to ignore, let alone dispute, the accuracy of the trial court’s observations and assessments concerning Tisha’s motives for relocating.

While Tisha relies heavily on the fact that the girls would see their extended families to a greater extent if they lived in Miami than if they lived in Rogers, spending time with one’s extended family is not a substitute for visitation with one’s parent. The girls were certainly not deprived of a relationship with Tisha’s extended family before they moved to Oklahoma and there was no evidence that they would be deprived of those relationships when they returned to Arkansas. However, they had been deprived of their relationship with their father while they lived in Oklahoma. On those facts, the trial court did not err in concluding that the relocation was not in the children’s best interest.

Unlike the dissent, we do not ignore the trial court’s prior finding that the custodial parent in the case relocated “for the sole purpose of thwarting [appellee’s] visitation with his children.” Nor do we ignore the weight of the testimony presented by the custodial parent in this case simply because she was not required to offer any evidence in order to obtain the benefit of the presumption favoring relocation.

Accordingly we hold that, in light of the court’s uncontested finding that Tisha thwarted her daughters’ visitation with Charles, in light of evidence rebutting the presumption in favor of relocation, and in the absence of persuasive evidence that the move was in the children’s best interests, the court correctly denied Tisha’s petition to relocate.

Affirmed.

Robbins, Roaf, and Crabtree, JJ., agree. Bird and Baker, JJ., dissent.

1 It is difficult to comprehend how the distance to Miami was not so great that it would not significantly disrupt Charles’s visitation with the girls, as Tisha asserts, yet, at the same time, could be significant enough to prevent Tisha from receiving the financial or moral support from her family that she desired, as she also asserts.