Baggett v. Baggett

2022 Ark. App. 153

643 S.W.3d 836

Sam BAGGETT, Jr., Appellant

v.Angela Baggett (BENIGHT), Appellee

No. CV-21-64

Court of Appeals of Arkansas, DIVISION I.

Opinion Delivered April 6, 2022

Leah Lanford, for appellant.

Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for appellee.

RITA W. GRUBER, Judge

Sam Baggett, Jr., appeals from an order of the Lonoke County Circuit Court denying his petition to modify visitation and awarding his ex-wife, Angela Benight, attorney's fees. He brings two points on appeal: (1) the circuit court erred in requiring the same proof of a material change in circumstances for a modification of visitation as is required for a modification of custody; and (2) the circuit court abused its discretion in awarding attorney's fees. We affirm the circuit court's order denying Sam's petition and awarding attorney's fees to Angela.

The parties in this case were divorced by decree entered January 23, 2014, and were awarded joint custody of their children, EB and AB, now ages thirteen and eleven. On July 26, 2016, the parties entered into an agreed order awarding Angela legal and physical custody of the children, subject to Sam's visitation specified in the order. Sam was awarded every other weekend plus a midweek visit on Thursday after school until 7:00 p.m. during the school year and all day Thursday until 7:00 p.m. during the summer. He was also awarded an extended period of up to five consecutive days during the summer to take the children on a vacation, and the parties alternated holidays. Due to the acrimony between the parties, they were ordered to meet at the police department, park two spaces apart, and not exit their cars to exchange the children.

On September 18, 2019, Sam filed a motion for modification of orders, alleging that a material change in circumstances had occurred since the 2016 custody order and requesting joint custody with equal time and termination of child support. He contended that the changed circumstances included the following: the police had been called to Angela's home "multiple times over the last year due to domestic disturbances"; and the parties’ co-parenting had improved as demonstrated by their attending lunch together at the children's school, shopping together for athletic equipment for the children, and discussing the children regularly. Angela moved to dismiss, citing the following provision of the 2016 agreed order: "Should either party wish to pursue a change in either custody or visitation they must first attend mediation unless emergency circumstances exist."

Angela also filed a motion for contempt and motion to modify child support, citing Sam's failure to pay the court-ordered child support and arrearage from the 2016 order. She also alleged that he had failed to reimburse her for the children's health-insurance premiums as ordered. Sam moved to dismiss his motion for modification without prejudice in order to allow the parties to attend a scheduled mediation. There is nothing in the record indicating that the court entertained this motion.

In any event, the parties attended mediation, which failed, and Sam filed a second motion for modification on January 24, 2020, again contending that there had been a material change in circumstances, citing the following changes in support of his motion:

a. That the police have been called to Plaintiff's home multiple times over the last year due to domestic disturbances;

b. That the parties’ oldest child spoke to his school counselor regarding incidents that have occurred at his mother's home;

c. That the children have advised that Plaintiff's husband has cussed them and called them derogatory names.

d. That the children have advised that Plaintiff has told them to quit asking for more time with their dad because it won't happen.

e. Prior to Defendant's original filing in September 2019, the Plaintiff and Defendant's relationship had improved, and they discussed the children regularly, had attended lunch at the children's school together, had gone shopping together for athletic equipment for the children, and had generally provided a model example of co-parenting to the children;

f. That the Defendant's situation has changed and that additional visitation time with the children would be in the children's best interests.

Sam asked the court to award "equal time with the children" and order that neither party pay child support. He stated that he would consent to Angela's retaining "primary custody for decision making purposes" but wanted specific "co-parenting language" to ensure that he was allowed to have input on major decisions "in the areas of medical, educational, and extracurricular." Finally, he asked to court to appoint an attorney ad litem for the children.

Angela replied to Sam's motion, alleging that their initial joint-custody arrangement was changed in 2016 because joint custody had been an "absolute disaster." She contended that the parties had engaged in "highly contested litigation" lasting a year and resulting in the 2016 agreed order. She claimed that after "shirking his parental responsibilities for years by failing to pay his court ordered child support and health care expenses for the children," Sam now requests the court to award joint physical custody and eliminate child support. She argued that joint custody was not in the children's best interests and asked the court to deny Sam's motion.

The court appointed Chris Lacy as attorney ad litem. He had previously served in that capacity for the children in the 2016 custody battle. The circuit court held a hearing on September 3, 2020, at which Lacy recommended against modification stating, "I just can't trust the stories that [Sam has] told" because he had told so many different stories. Both parties testified about their interactions regarding the children since the 2016 order. The court entered an order on October 15, 2020, denying Sam's motion and specifically finding that while things appeared to be "a little better," there had been no material change warranting modification of custody or visitation. Finding no material change, the court stated it did not reach the best interest of the children. The court also found Sam to be in willful contempt for failing to pay child support and health-insurance premiums. He was found to be in arrears on child support in the amount of $7,549 and on health-insurance premiums in the amount of $4,691.96, amounts to which the parties had stipulated at the beginning of the hearing. Finally, the court ordered Sam to pay 10 percent of the arrearage, or $1,224, in attorney's fees, in addition to $5,000 in attorney's fees for Angela's defense of his motion.

We review child-visitation and child-custody cases de novo on the record, and we will not overturn them unless they are clearly erroneous. Goodman v. Goodman , 2019 Ark. App. 75, at 7, 2019 WL 455804. When the question of whether the circuit court's findings are clearly erroneous turns largely on the credibility of the 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. Id.

Because a circuit court maintains continuing jurisdiction over visitation, it may modify or vacate a prior visitation order upon proof of a change in circumstances since the previous order. Dare v. Frost , 2018 Ark. 83, at 3, 540 S.W.3d 281, 283. Although visitation is always modifiable, to promote stability and continuity for the children and to discourage repeated litigation of the same issues, courts require more rigid standards for modification than for initial determinations. Brown v. Brown , 2012 Ark. 89, at 7, 387 S.W.3d 159, 163. Thus, the party seeking a change in visitation has the burden of demonstrating a material change in circumstances that warrants such a change. Baber v. Baber , 2011 Ark. 40, at 10, 378 S.W.3d 699, 705. Similarly, a party seeking modification of custody has the burden of showing a material change in circumstances. Rice v. Rice , 2016 Ark. App. 575, at 5, 508 S.W.3d 80, 84.

For his first point on appeal, Sam argues that the circuit court applied the wrong burden of proof by requiring him to demonstrate a material change of circumstances. He contends that he requested more visitation, not a modification of custody; that framing the issue as one for a modification of visitation rather than as a change of custody is critical to our analysis on appeal; and that reframing the issue will require us to reverse the circuit court's decision.

In support of his argument, he first cites Act 604 of 2021,¹ pursuant to which the legislature recognized that joint custody and equal time with each parent is in a child's best interest. He argues that, given this presumption, it is difficult to justify a different policy for visitation. He claims that the evidence here demonstrated that the parties’ ability to co-parent went from non-existent in 2016 to effective co-parenting from which the children have benefited. He argues that because more time with fit parents is in the children's best interest, a circuit court must order it.

He also cites Kennedy v. Kennedy , 19 Ark. App. 1, 715 S.W.2d 460 (1986), claiming we distinguished a modification of custody and a modification of visitation and arguing that the case stands for the principle that a showing of a material change in circumstances is required only when the court modifies custody, not when it modifies visitation. In Kennedy , the noncustodial father petitioned for a change of custody. The then-existing order gave the father visitation every other weekend and six weeks in the summer. The circuit court found the father had not demonstrated a material change of circumstances, which was required to modify custody, but enlarged his visitation to approximately 60 percent of the children's time, finding it was in the children's best interest to do so. On appeal, we reversed because the modification was sufficiently material...