Cline v. Simpson

1

2024 Ark.App. 611

KRISTEN MCGREGOR CLINE (FORMERLY SIMPSON) APPELLANT v. LEONARD ‘DALE' SIMPSON APPELLEE

No. CV-23-547

Court of Appeals of Arkansas, Division IV

December 11, 2024

Appeal from the Benton County Circuit Court [No. 04DR-20-289] Honorable Xollie Duncan, Judge Affirmed in Part; Modified in Part

Matt Kezhaya and Sonia Kezhaya, for appellant.

Tim Cullen, for appellee.

STEPHANIE POTTER BARRETT, JUDGE

Appellant Kristen McGregor Cline (formerly Simpson) appeals from the Benton County Circuit Court's order in favor of appellee Leonard "Dale" Simpson, finding that custody of their two minor children should be modified to joint custody with a week-on week-off visitation arrangement and finding Kristen in contempt. Kristen argues that the circuit court erred in finding a material change in circumstances to warrant a modification of custody, the circuit court erred in failing to make a best-interest finding, and the contempt finding was clearly erroneous. We affirm in part and modify in part.

The parties were married on October 17, 2013, and were separated on or about December 18, 2019. The children subject to the visitation schedule are MC1, born in 2013, and MC2, born in 2015. After the separation, the parties entered into a separation and property-settlement agreement filed of record on March 17, 2020, and incorporated it into the decree of divorce filed of record on March 25, 2020. Dale agreed for Kristen to have primary custody of the children and for him to have visitation as agreed upon or, if no agreement, by the standard visitation schedule in use by the Benton County courts. The relevant provisions in the Benton County visitation schedule provided for Dale to have visitation with the children every other weekend from Friday at 3:30 p.m. or when school recessed until the following Monday morning at 7:30 a.m. There was no provision for a midweek visit in the court-ordered visitation schedule, but testimony showed that Kristen had agreed to visitation on Tuesday nights. The agreement further provided that "if either party requires a sitter for the children overnight, the other party shall first be given the opportunity to care for the children on each such occasion," and "[f]urther, neither party shall make a derogatory remark about the other party or to a third party in the presence of the children." On March 28, 2022, the court appointed Charles Pearce as the attorney ad litem for the children. At the time of the hearing, MC1 was nine years old, and MC2 was seven years old.

After the divorce, both parties remarried. Dale admitted he had cohabitated with Te'Neyl prior to marriage but testified that Te'Neyl would sleep in the horse trailer when the children were visiting him. Kristen denied she had cohabitated with Caleb Cline, who she married after becoming pregnant. On October 1, 2021, Dale filed a petition for contempt and for modification of the custody to joint custody in which he alleged Kristen was in contempt for not allowing him overnight visitation when she worked the night shift as a dispatcher at the sheriff's office. He also alleged several reasons that custody be modified to joint custody including alienation of the children; unwillingness to comply with court orders; that she and her husband consumed alcohol in front of the children; that on exchanges of the children, her actions interfered with his visitation by making the children feel guilty to go with him allowing the children to stay with family members instead of him when she was working; and interfering with his visitation by calling the children excessively during his visitation. Kristen denied Dale's allegations and filed a contempt motion against him for cohabitation with a member of the opposite sex and for consuming alcohol in front of the children.

Dale testified that when the children were four and six, he felt he had been shorted in his time because Kristen came to his vehicle and hugged the children before they left on visitation with him, causing them to be upset and cry. Initially, Dale would pick up MC2 from preschool and pick up MC1 from his school, which released at a later time. Dale testified that Kristen changed that arrangement to require him to pick up MC2 from her home after he picked up MC1. Dale testified the children would be upset and crying when she would tell them, "It's just one day," and he believed it was her attempt to make him look bad or to make them feel guilty for going. Dale testified MC1 would act happy when he picked him up at school, but after Kristen came to the car, he would be upset and standoffish for thirty minutes and up to two hours after the exchange. Dale said he asked her not to do this, but she said she didn't feel like she was doing anything wrong. Dale agreed that he doesn't have that problem as much now since both children are in school where he picks them both up on Fridays.

Kristen testified she altered the exchange because Dale's visitation with MC2 did not begin until 3:30 p.m., so if he picked MC2 up, he was taking her time of possession. Kristen testified that, at times, MC2 would cry when it was time for the exchange, and she would go to the truck to comfort him, but she had never seen MC1 cry. Kristen testified she would give them a hug, tell them they are going to have a great time, talk about the four-wheelers, ponies, or whatever things they might do, and she would see them in a day. Kristen testified she never whispered anything negative about going on visitation or made any attempt to undermine Dale or to interfere with his visitation by comforting their child, and that she had done nothing wrong by saying goodbye to her children before they left with Dale.

Dale testified that Kristen denied him the right of first refusal to keep the children when she was working the 6:00 p.m. to 6:00 a.m. shift at the sheriff's office in violation of the court order. He stated she left the children with her mother and sometimes her brother when she worked nights.

Kristen did not deny that she had not given him visitation with the children on nights when she was working. Kristen testified that she and her mother live in the same residence, but her mother stays in the garage apartment adjacent to the actual residence. Kristen testified that during their marriage her mother would keep their children. For that reason, she said she thought the provision applied if someone were to go out of town, without the children, or on a business trip, and they needed to hire a babysitter to watch the kids. She based her belief, in part, on the fact that her mother had often kept the children when she and Dale were married, and she thought this would be the same because she is the grandmother and not a sitter. Kristen testified that her work schedule as dispatcher for the sheriff's office had been from 6:00 p.m. until 6:00 a.m., but that changed on April 13, 2021, more than a year before the hearing, when her schedule was changed to 6:00 a.m. to 6:00 p.m. on weeknights. Kristen testified that at the time of the hearing, she no longer worked the night shift on weekday nights but was on the day shift.

Dale complained that Kristen was interfering with his visitation by discouraging the children from participating in activities while he had them in his possession. Dale testified that he signed MC1 up for play days and shooting but that Kristen interfered with those activities. He testified that on one occasion, she took him to a movie rather than play day. He testified that this interfered with his visitation and was a manipulation of the children.

Kristen testified that she took MC1 to his play days, even when it was her Friday night. Kristen testified that MC1 missed one rodeo all summer, and she gave MC1 a choice that if he wanted to go to the rodeo, he needed to call his dad, and he could go with him but that she was going to go to the movie at the baseball field. She testified that MC1 chose to go to the movie instead of play day. She testified that at some point, MC1 did not want to go to play days any longer, and she texted Dale and told him.

Dale testified that Kristen does not discuss with him putting the children in activities prior to enrolling them. Dale testified there are problems with Kristen scheduling events during his scheduled time that interferes with things that he had scheduled to do with the boys. He testified that she scheduled MC1 for baseball on his midweek visitation when she had an option to schedule it another time. Dale admitted the option for MC1 to play baseball was either play with older kids during Kristen's time or play on Tuesday nights with his age group. Dale admitted that Kristen traded nights with him from Tuesday night to Monday night so MC1 was able to attend baseball practice on Tuesdays. He testified that after baseball season, they switched back to Tuesday night.

Kristen testified that MC1 was interested in playing baseball, so she signed him up for it. She stated that baseball practice was on Tuesday nights, but she didn't schedule practice or game times. She testified that Dale argued with her that she should have put him on a team of older boys so his visitation would not be impacted. Kristen testified she agreed to trade Tuesday-night visits to Monday nights. She stated that Dale attended some of the practices on Tuesday nights. Kristen stated she had signed the children up for other activities, but she and her husband paid for the activities, such as baseball, riding lessons, basketball, and football.

Dale testified to an incident when MC1 had been at War Eagle camp. He stated that Kristen picked MC1 up from the bus and made him wait in the parking lot until she brought MC1 to him for his weekend visit. Dale testified that this interfered...