Cappelluzzo v. Cole

680 S.W.3d 754

2023 Ark. App. 571

Joseph CAPPELLUZZO, Appellant

v.Judith COLE, Appellee

No. CV-23-70

Court of Appeals of Arkansas, DIVISION I.

Opinion Delivered December 6, 2023

APPEAL FROM THE MARION COUNTY CIRCUIT COURT [NO. 45DR-14-76], HONORABLE ANDREW S. BAILEY, JUDGE

Emily C. Reed; and Blair & Stroud, Batesville, by: Barrett S. Moore, for appellant.

Benjamin Gibson, Yellville, for appellee.

MIKE MURPHY, Judge

₁Appellant Joseph Cappelluzzo appeals the decision of the Marion County Circuit Court changing custody of the three children he shares with his ex-wife, appellee Judith Cole. On appeal, he argues that no material change in circumstances occurred to warrant a change in custody, and further, the change of custody was not in the children’s best interest. We affirm.

The parties were married in November 2002 and divorced on September 29, 2014. Five children were born of the marriage. Prior to the immediate litigation, custody of the minor children was controlled by an order entered in October 2017. Of relevance, that order provided that Joseph would have primary custody of MC1, and the parties would share joint custody of MC2 and MC3. In February 2022, Joseph moved to hold Judith in contempt for withholding visitation of MC1 and MC2. On July 20, 2022, Judith petitioned to change ₂custody of the children and to relocate. She pleaded that she had two of the children in her exclusive custody for months, her home was listed for sale by the owner, and she sought to relocate to Michigan. At a hearing on the motions, the court heard testimony from Judith, Joseph, and four of the parties’ five children. At the conclusion of the hearing, the court changed custody to Judith, explaining that

[t]he children each testified that there was significant conflict between [MC1] and Mr. Cappelluzzo, which eventually led to his not returning to his father’s home for visitation. Mr. Cappelluzzo acknowledged the conflict while testifying that he believes [MC1]’s conduct is the same in both parties’ homes. While there was no single event leading to[MC1]’s cessation of visiting with his father, he has not had any visitation with him since January. [MC2] … also stopped going to visitation when [MC1] did. Each of the children testified at the hearing, and the Court has taken their testimony into serious consideration to determine that a material change of circumstances exists to modify the custody order in this case.

The court also found that the change in custody would be in the children’s best interest.

On appeal, Joseph argues that the circuit court erred in changing custody. He contends that there has been no material change since the entry of the last custody order and that changing custody to Judith is not in the children’s best interests because she has not supported their relationship with their father and has spoken poorly of Joseph in the children’s presence. He further explains that Judith, who has been held in contempt of court twice over her parenting decisions, has not demonstrated a history of behavior that indicates she would be the best custodian.

[1–4] 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. McNutt v. Yates, 2013 Ark. 427, at 8, 430 S.W.3d 91, 97. A ₃finding 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. Boudreau v. Pierce, 2011 Ark. App. 457, at 11, 384 S.W.3d 664, 671. It is well settled that the primary consideration is the welfare and best interest of the child, while other considerations are merely secondary. Raymond v. Kuhns, 2018 Ark. App. 567, at 1-3, 566 S.W.3d 142, 143-44. We give special deference to the superior position of the circuit court to evaluate and judge the credibility of the witnesses in child-custody cases, and this deference to the circuit court 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.

[5] The proper analysis for a change-in-custody request due to the relocation of one parent in a joint-custody situation is the same as that when relocation is not involved: the court must first determine whether a material change in circumstances has transpired since the last order on custody and then determine whether the change in custody is in the best interest of the child. Singletary v. Singletary, 2013 Ark. 506, 431 S.W.3d 234. Neither party disputes the application of a joint-custody relocation analysis under these facts.

Joseph first challenges the court’s material-change finding. He contends that neither the children’s preference nor Judith’s upcoming move constitutes a material change of circumstances. He cites Price v. Price, 2020 Ark. App. 281, at 9, 599 S.W.3d 403, 408, for the proposition that because Judith had not yet moved, there was no material change. However, in Price, this court chastised the circuit court for hear- ing the evidence of relocation at the ₄divorce hearing but then making a joint-custody finding in the divorce decree. Instead, we explained, it should have either reserved the final determination of custody or entered a temporary order. On the relocation petition, the circuit court changed custody but was silent regarding a material-change finding. On appeal, we were unable to ascertain any evidence that was different from that presented at the divorce hearing and held that no facts were presented to support a material-change finding, especially given the lack of a recited finding by the court. Id.

Here, the evidence presented was that Judith was remarried; her husband had good work in Michigan; the home she was renting in Arkansas was listed for sale, and she had to be out three days after the hearing; she and her husband had purchased a home in Michigan that was twice the size of the home they had in Arkansas; and she has family in Michigan. Judith said she did not have a home in Arkansas in three days’ time and was moving to Michigan with or without the children.

Regardless, the circuit court held that its decision that a material change had occurred was based on the children’s testimony, not necessarily the impending move.

Concerning the children’s testimony, Joseph argues that their recited preference is not a material change but merely a factor to be considered. In Hobby v. Walker, the circuit court found that there was no material change when the father had a strict parenting style and the fourteen-year-old daughter expressed a desire to live with her mother. 2011 Ark. App. 494, at 8, 385 S.W.3d 331, 336. On appeal, we affirmed because even the mother and the child conceded that...