Armstrong v. Draper

2021 Ark. App. 211

624 S.W.3d 345

Emily ARMSTRONG, Appellant

v.Martel DRAPER, Appellee

No. CV-20-368

Court of Appeals of Arkansas, DIVISIONS III AND IV.

Opinion Delivered May 5, 2021

Skarda Law Firm, by: Cecily Patterson Skarda, for appellant.

LaCerra, Dickson, Hoover & Rogers, PLLC, by: Natalie Dickson and Lauren Hoover, Little Rock, for appellee.

N. MARK KLAPPENBACH, Judge

Appellant Emily Armstrong and appellee Martel Draper share one child, AAD, born in 2016.¹ Armstrong appeals from an order of the Pulaski County Circuit Court prohibiting her from relocating to Colorado with AAD. On appeal, she argues that the circuit court improperly shifted the burden to her and erroneously found that relocation was not in AAD's best interest. We affirm.

Pursuant to an order entered in April 2017, the parties were awarded joint legal custody of AAD with Armstrong being the primary custodian. Once AAD turned one year old, Draper was awarded visitation that amounted to two days a week and other times by agreement of the parties. In June 2017, Draper filed a petition seeking to prohibit Armstrong from relocating to Colorado Springs with AAD. A hearing was held in December 2017 after which the court entered an order prohibiting Armstrong's relocation. Armstrong appealed the order to this court and argued that the circuit court had erroneously analyzed the case as a joint-custody arrangement pursuant to the requirements set out in Singletary v. Singletary , 2013 Ark. 506, 431 S.W.3d 234. We agreed that the parties did not share joint custody and that the case should instead be analyzed pursuant to Hollandsworth v. Knyzewski , 353 Ark. 470, 109 S.W.3d 653 (2003), which sets forth a presumption in favor of relocation for custodial parents with primary custody. Accordingly, we reversed and remanded for the circuit court to apply the Hollandsworth presumption. Armstrong v. Draper , 2019 Ark. App. 114, 571 S.W.3d 60.

On remand, the court based its ruling on the record from the December 2017 hearing and letter briefs filed by the parties. The court found that Draper had rebutted the presumption in favor of relocation and that the relocation was not in AAD's best interest. Accordingly, the court again entered an order prohibiting Armstrong from relocating with AAD. Armstrong now appeals from this order.

The following relevant testimony was given at the December 2017 hearing. Armstrong testified that when she became pregnant with AAD, her mother moved from Colorado to live with her in Little Rock to help her during and after the pregnancy. Her mother now wanted to move back to Colorado Springs, and Armstrong wanted to move with her. She said that it was a fourteen-hour drive from Little Rock. Armstrong said that her mother had provided care for AAD, who was sixteen months old at the time of the hearing, while both Armstrong and Draper worked. Armstrong did not know if her mother would move in the event the court prohibited Armstrong from relocating with AAD.

In addition to the support of her mother, Armstrong said she would also have the support of an aunt, an uncle, and cousins who live in Colorado Springs, although they had not yet met AAD. Armstrong had full-time employment lined up in Colorado as a makeup artist with MAC Cosmetics starting in March 2018. She had recently started working part time for MAC Cosmetics in Little Rock and also worked part time at a restaurant. She was currently making sixteen dollars an hour with MAC and believed she would earn the same or more in Colorado. She agreed on cross-examination that the job she was planning to take in Colorado was essentially a job that was available to her in Arkansas. Armstrong had not yet made living arrangements or daycare arrangements, although she said that her family could at least initially provide childcare. She said that she had explored educational opportunities for AAD in Colorado, and there were "great" opportunities.

Armstrong said that she is not able to rely on Draper for financial assistance because he misses child-support payments and had not made a payment in the preceding four months. At the beginning of the hearing, the parties stipulated that there was a total arrearage of $2427.87. Armstrong said that she is the parent who primarily took AAD to doctor's appointments, and she planned his meals and activities for his time in Draper's care. She said there had been times when Draper had not exercised his full visitation, such as when he returned AAD to her care early because AAD was sick. Draper also requested that Armstrong pick up AAD early one night when he was having a hard time with him at bedtime. Armstrong said that AAD had been returned to her care smelling of smoke and with diaper rash that she believed was caused by leaving him in a dirty diaper for too long. She said that she had addressed these issues with Draper, but they still occurred and caused her concern about Draper's having extended periods of visitation. She said that Draper has spent time with AAD on nonvisitation days and that when AAD is in her care, Draper consistently checks in on him to make sure he is okay.

Regarding Draper's visitation if she is allowed to relocate to Colorado, Armstrong testified that she could commit to flying back to Arkansas with AAD once a year for two weeks and that Draper could fly to Colorado once a year for however long he would like. She said that they could agree to additional visitation and split the travel costs if child support was up to date. Armstrong felt that AAD was too young to have visitation over the whole summer and preferred the length of Draper's visitation to increase as AAD gets older. Armstrong said that she may fly back to Arkansas more than once a year, noting that she has family in Arkansas, but she could commit to only once a year at this time.

Draper testified that he objected to Armstrong's proposed relocation because Colorado Springs is too far away, and it is in AAD's best interest for his father to help raise him. Draper said that it is important for him to have a meaningful relationship with AAD, which the current visitation schedule allowed for, and that his visitation upon relocation would be significantly less. Draper said that Armstrong has not allowed him to have additional visitation beyond his forty-eight-hour period each week. He said that he has requested multiple times to pick up AAD for the day while Armstrong is working, but she has never allowed it. The reason Armstrong gave him for denying the request on one occasion was that her mother likes spending time with AAD. Draper said that Armstrong would tell him that he could come by her home and visit AAD, but he claimed that she does not communicate this offer until late in the day and it does not work out. Draper said that his parents, siblings, and other family members live in Arkansas, and AAD knows them all. He said that AAD is happy to see members of his family, who are often around during Draper's visitations, and that relocation would negatively affect those relationships.

Draper testified that he had been laid off in March 2017 and was not currently employed, but he anticipated starting a position soon. He said that he had been living off credit cards and had received help from his family. Draper said that he had provided AAD with everything he needs at his home and had managed to pay his child support for February through August 2017, although some payments were late. He was now asking the court to reduce his child-support obligation due to his unemployment.

Laquita Freeman, Draper's sister, testified that their family has a close relationship with AAD. She said that she tries to see AAD every time Draper has him for visitation. She denied that this is because Draper cannot care for him on his own; instead, she said that because they cannot drop by and see AAD whenever they want, Draper's visitation days are very valuable to the family. Freeman said that a relocation to Colorado would have an adverse effect on the family's relationships because it is too far for the family to drive to see him frequently, and some family members will not be able to afford the travel to Colorado.

In reviewing child-custody cases, we consider the evidence de novo, but we will not reverse the circuit court's findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Raymond v. Kuhns , 2018 Ark. App. 567, 566 S.W.3d 142. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been made. Id. We give due deference to the superior position of the circuit court to evaluate and judge the credibility of the witnesses, and this deference is even greater in cases involving child custody, as a heavier burden is placed on the circuit court to utilize to the fullest extent its powers of perception in evaluating the witnesses, their testimony, and the best interest of the children. Id. It is well settled that the primary consideration is the welfare and best interest of the child, while other considerations are merely secondary. Id.

In Hollandsworth v. Knyzewski , 353 Ark. 470, 109 S.W.3d 653 (2003), the supreme court announced a presumption in favor of relocation for custodial parents with sole or primary custody. The noncustodial parent has the burden to rebut this presumption, and the custodial parent no longer has the responsibility to prove a real advantage to herself or himself and to the children in relocating. Hollandsworth, supra. The polestar in making a relocation determination is the best interest of the child, and the court should take into consideration the following matters: (1) the reason for the relocation; (2) the educational, health, and leisure opportunities available in the location in which the custodial parent and children will relocate; (3) the visitation and communication schedule for the noncustodial parent; (4) the effect of...