Edmonds v. Miller

2022 Ark. App. 495

655 S.W.3d 908

Ashley Atkins EDMONDS, Appellant

v.Christopher MILLER, Appellee

No. CV-22-65

Court of Appeals of Arkansas, DIVISION II.

Opinion Delivered December 7, 2022

Gregory Thomas Attorney at Law PLC, by: Gregory M. Thomas, for appellant.

Stone & Sawyer, PLLC, by: Phillip A. Stone, for appellee.

ROBERT J. GLADWIN, Judge

Ashley Edmonds appeals the Ashley County Circuit Court's order granting appellee Christopher Miller's change-of-custody motion and changing the surname of the parties’ minor child. Ashley argues that (1) she was entitled to the presumption in favor of relocation; (2) even if the presumption did not apply, it was not in the child's best interest to change custody; and (3) the trial court erred by changing the child's surname. We affirm.

I. Facts

On May 2, 2012, the minor child was born, and on May 29, Christopher filed a paternity petition claiming to be the child's father and asking that the child's surname be changed to "Miller." Ashley agreed that Christopher is the child's father but resisted the name change. After a hearing, the trial court issued an order on January 7, 2013, establishing that Christopher is the child's father and awarding "joint custody of the minor child with [Ashley] to have physical custody." Christopher was ordered to pay child support, specific visitation was established, and the request for a name change was denied.

On February 11, 2021, Christopher moved to change custody, enjoin Ashley from relocating, and change the child's surname. He alleged that since the paternity order, the parties have shared "roughly equal physical" custody of the child and that Ashley's intention to move to Crossett from El Dorado would frustrate their joint-custodial arrangement. He alleged a material change in circumstances in that Ashley had failed to appropriately address the medical, dental, and educational needs of the child. He claimed that Ashley had subjected the child to a sometimes violent relationship between her and her husband, had moved many times, and had failed to participate in or attend the child's school functions and events. He asked that the child be given his surname, "Miller"; that his child-support obligation be terminated; and that Ashley be ordered to pay child support.

A hearing was held on September 20, and in its "Findings of Fact and Conclusions of Law," the trial court summarized the facts and testimony. The court found in pertinent part as follows:

[Christopher] enjoyed between 50% to 60% of the time with [the child] between the first grade through the first semester of the third grade. This continued until Ashley unilaterally cut him off in January of 2021 and forced a return to the 2013 order.... Ashley's return to the 2013 order by her own testimony was detrimental to [the child]. In addition, the time sharing could not be duplicated when [Ashley] moved over an hour away in May 2021 ... to Ashley County.

While Ashley testified that [the child] did not spend as much time with [Christopher] as [he] claimed, her own testimony was inconsistent and controverted by most of the evidence. Ashley admits that [the child] became accustomed to his time with his father and enjoyed it.

In March, [Ashley] pulled [the child] out of regular JCCS [Junction City Charter School] where he was beginning his third nine weeks of third grade, and placed him in JCCS virtual school. When school concluded in May, [Ashley] left Union County and moved [the child] to Ashley County, mooting [Christopher's] request for an injunction. By the time of trial, she had enrolled [the child] in Anderson Elementary in Crossett.

During the years in El Dorado, the Court finds that Ashley not only relied upon, but completely defaulted to Christopher's wife, Carrie, to handle all of [the child's] educational needs....

In spite of overwhelming evidence to the contrary, Ashley denies that she ever knew that [the child] tested positive with indicators for dyslexia or that a 504 Plan was implemented for [the child] in the first grade. It is incredulous to this Court, in view of the testimony of Carrie Miller, School Counselor Belva Cannon, and Second Grade Teacher Connie Hammett, that by the time [the child] finished the third grade, [Ashley] still did not know about her child had tested positive for dyslexia.... Part of the 504 Plan included assistance for [the child] by going to a resources class while in school where he received help with his class room work, 30–45 minutes a day, five days a week. [Ashley] knew nothing about this.

... The record proves [Ashley's] aversion to driving [the child] to school and the Court can only conclude that [Ashley's] motive for virtual school, in light of her fallout with the Millers, was based on the best interest of [Ashley] not [the child].

... As [the child] begins fourth grade, he now has all Cs and one A [as opposed to his A/B average at JCCS]. No evidence was shown to the Court that the Crossett schools have a clue that [the child] has any learning difficulties or that he qualifies for classroom modifications under any 504 Plan. The Court has no confidence that [Ashley] will be able to ‘work with him’ as she claims to pull these grades up.

....

... [Ashley] seems to see nothing wrong with counseling [the child] to punch other kids in the mouth if he thinks he is being bullied at school.... There seems to be no thought process as to the ramifications to [the child] if he acts on these impulses in a school setting.

... [Ashley] lied to this Court about her disciplinary practices with [the child].... [T]he Court must wonder about the credibility of [Ashley's] other testimony.

Further, it is noted that Christopher and [the child] lost their extra time together for no good reason well before [Ashley] moved to Crossett because of [Ashley's] anger....

While her reasons for stopping the extra days were very clear, Ashley's reasons for moving were not....

Ashley said her main reason for the move is to get out from under a $1,000 rent payment in El Dorado even though the trailer payment is $1,423 per month. ...

Ashley also did not work in El Dorado; she does not work now .... On the other hand, her husband still works some 60 hours per week in El Dorado and commutes between El Dorado and Crossett to his job ....

....

[Ashley] further opposes changing [the child's] last name to "Miller." In 2013, [Ashley's] last name was "Atkins." Since that time, her last name has changed to "Edmonds." Her daughter's last name is "Edmonds." [The child] is the only one in the household with the last name of "Atkins." [Christopher's] argument for a name change is that in his household, [the child's] half-brother's last name is "Miller." The only person with substantial ties to the name of "Atkins" is the minor child's grandfather who has just been released on early parole from federal prison after conviction of embezzlement of approximately $400,000 from Georgia Pacific and right now, resides with [Ashley]. [Christopher] argues that the name of "Atkins" now has a negative association because of his grandfather's conviction involving the largest employer in Ashley County, that no one in the child's immediate family is named "Atkins," and that if he is living with [Christopher], it would make more sense and be less confusing for [the child] if he has the same name as his father and his brother, who attends the same school.

[Ashley] argues that [the child's] identity is already established as "Atkins," that only about fifty per cent of the people in Ashley County believe the conviction of her father and the other fifty per cent believe he is innocent, and that the name "Miller" doesn't have such a sterling reputation, although she did not elaborate.

In its conclusions of law, the trial court discussed whether the presumption in favor of allowing Ashley to relocate as stated in Hollandsworth v. Knyzewski , 353 Ark. 470, 109 S.W.3d 653 (2003), applies or whether this is a joint-custody case controlled by Singletary v. Singletary , 2013 Ark. 506, 431 S.W.3d 234. The trial court concluded that Christopher proved that the child spent more time with him than with Ashley between 2018 and 2021 and that the child did not spend significantly more time with Ashley than with Christopher. The court applied Singletary rather than Hollandsworth , found that Ashley's move to Crossett is a material change in circumstances, and found that it is in the child's best interest to change custody to Christopher. The trial court held that even if Hollandsworth did apply, Christopher overcame the presumption and proved that Ashley's relocation with the child is detrimental to the child. The court awarded joint custody with Christopher having primary physical custody, and Ashley was awarded specific visitation. Ashley was ordered to pay $263 a month in child support, and the trial court partially granted the request to change the child's name. The court found,

While the Court does find that the minor child has somewhat of an identity linked to "Atkins," he is only nine years old. The older he gets, the more confusing his surname can be when no one in either household retains that last name. In addition, due to this ruling, [the child] will be going to school full time with his half-brother whose last name is "Miller," as well as living in a household full time where everyone's last name is "Miller." "Atkins," at this time, understandably has special meaning for [Ashley] and her family and has meaning for [the child] as well. The Court thinks the better course is not to eliminate the name "Atkins" altogether. The minor child's name should retain something of both his parents. Therefore, the Court finds that the best interest of [the child] is served by adding the surname of "Miller[.]"

On October 12, Ashley moved for reconsideration and a new trial, and on October 29, she filed a notice of appeal. On November 9, the trial court filed an order granting Christopher's motion to change custody and incorporated the ...