Heileman v. Cahoon

1

2024 Ark.App. 72

DAVID HEILEMAN APPELLANT v. ARIEL CAHOON APPELLEE

No. CV-22-495

Court of Appeals of Arkansas, Divisions I, II and IV

February 7, 2024

APPEAL FROM THE POINSETT COUNTY CIRCUIT COURT [NO. 56DR-17-53] HONORABLE MARY LILE BROADAWAY, JUDGE AFFIRMED

Streit & Streit, by: Jonathan R. Streit and Elizabeth James Streit, for appellant.

Emerson Law Firm, by: Scott Emerson, for appellee.

BRANDON J. HARRISON, CHIEF JUDGE

David Heileman appeals the circuit court's order that modified his custodial time with his children and found him in contempt for failing to pay alimony and child support. He argues that the custodial-time modification amounts to a loss of joint custody and that the court erred in finding him in contempt for failing to pay alimony. We affirm the circuit court's order.

In August 2017, the Poinsett County Circuit Court entered a divorce decree that incorporated the parties' property child custody, and support agreement. Pertinent to this appeal, the agreement provided that the parties would share joint custody of their two children, MC1 (two years old) and MC2 (one year old), with Cahoon having primary custody and Heileman having secondary custody. Heileman would have the children every other weekend (6:00 p.m. Friday until 6:00 p.m. Sunday) as well as "overnight visitation every Tuesday and Wednesday from 5:00 p.m. until the children are returned to school, or 1 9:00 a.m." As to summer visitation, the parties agreed to alternate weekly throughout the entire summer.

The agreement also provided that Heileman would pay $1000 a month in child support, that he would maintain health insurance for the children, and that the parties would each pay one-half of all medical expenses not covered by insurance. Finally Heileman would pay alimony in the amount of $500 a month for 216 months; however, the alimony obligation would immediately terminate "without the necessity of a court order" if Cahoon remarried, cohabitated with a romantic partner, or moved outside Poinsett or Craighead County.

In August 2021, Cahoon petitioned for a modification of the custodial arrangement and argued that there had been a substantial and material change in circumstances since the entry of the divorce decree. Specifically, Heileman is working and living primarily out of state, which prevents him from exercising the custodial time that he was awarded; the "back and forth" required when he is in the area has been and will continue to be detrimental to the children; and Heileman is unable to support the children as evidenced by his failure to pay child support as ordered. Cahoon also alleged that Heileman was in contempt of court for failing to pay child support, failing to pay the required amount of alimony, and failing to provide health insurance for the children as ordered. She requested that the court modify the prior order and grant her full custody of the children and a judgment for all arrearages owed.

The circuit court held a hearing on 4 April 2022, at which Cahoon explained that the children are now seven and five years old and that things had gotten more difficult with consistency and stability for them. In July or August 2020, Heileman, who is a surgical technician, started traveling for work, and Cahoon agreed to work with him on scheduling. Heileman works primarily in Lexington, Kentucky, which is approximately six and a half hours from Jonesboro. His work contract changes every three months, and the "always changing" schedule caused difficulty for Cahoon and her current husband because they "could not make plans."^[1] Cahoon told him that the situation "wasn't working" and worried that the inconsistency was "chaotic" for the children, especially during the school year. The children do not know who is picking them up from school or how long they are going to stay at one home or the other. Heileman's absences also cause problems or delays with parent-teacher conferences and making appointments for the children. She asked that she be given full custody during the school year but agreed that a "week on/week off" schedule could be used over the summer. Cahoon did not believe that a "week-on/week-off" schedule during the school year would be best for the children because it takes the children several days to get back into the routine of each household.

Cahoon also explained that she had married her current husband, Michael Cahoon, in June 2018. Heileman had not paid any alimony as ordered, and under the terms of the parties' agreement, she was owed nine months' worth of alimony, or $4500. As to child support, Cahoon knew that Heileman had struggled financially at times and agreed to give him more time to pay if needed, but she had not ever said that he did not have to pay child support. He paid the full $1000 a few times at first but later sporadically gave her random checks for random amounts. Cahoon estimated that Heileman owed $36,835 in child support and alimony. Heileman had also paid for a few months of the children's activities (dance, gymnastics), but Cahoon and her husband primarily pay for all of the activities. Heileman had also not paid for the children's health insurance past the first month or two after the divorce. He did have the children enrolled in ARKids First.

After Cahoon's testimony, Heileman moved for a directed verdict^[2] on the change in custody and argued that there was "no evidence that some change in circumstances has occurred, that has detrimentally affected the children." Cahoon responded that Heileman lives half the time in Kentucky, which is "not within the concept of . . . joint custody." The motion was denied.

Christina Thomas, the operating-room manager at the hospital where Heileman works, explained that he typically works seven days on, five days off, or eight days on, six days off. The hospital is aware of his custodial schedule and is willing to accommodate the schedule and any special requests he may have. However, Thomas was not aware that Heileman's custody schedule included Tuesday and Wednesday nights.

Heileman testified that he lives in Jonesboro with his current wife and their two children. At the time of the divorce, he was not in a good financial position because the cattle company that he and Cahoon owned was in the middle of bankruptcy. He took over the company through the divorce and attempted to save it, but he was unsuccessful. He was also attending school. He worked construction and waited tables to have an income but ultimately filed for bankruptcy in 2020 or 2021. In September 2020, he began working as a traveling surgical technician. He said he was "doing everything [he] could" to pay toward his child-support obligation in the years after the divorce. He explained that he "was under the impression that her and I had an understanding, that we would assist each other, that when she needed help, I would help her." He claimed to have paid Cahoon $24,000 over the years as well as $21,250 in the week before the hearing. He did not pay the majority of the required alimony because he thought Cahoon and her now husband were living together. He also explained that he had insurance coverage available for the children through his employment.

According to Heileman, he and Cahoon had never followed the custody schedule prescribed in their divorce decree because "[it] was hard on the children." His work schedule "was tailored to" Cahoon and they "just kind of worked around each other." Exercising his custodial time has been "seamless" for the children, and he and Cahoon have worked "really well" together. On cross-examination, he agreed that it would be a "hardship" to exercise the court order as it currently stands, specifically the Tuesday/Wednesday custodial time, and that he "[didn't] want to."

The circuit court took the matter under advisement, and on April 11 issued a written order with the following findings:

2. The Court finds that there has not been sufficient evidence to overcome the presumption of joint custody and therefore the joint custodial arrangement shall remain as is with the Defendant, Ariel Cahoon, remaining the primary physical custodian and the Plaintiff, David Heileman being the secondary custodian.

3. The Court does find that there has been a change in circumstances sufficient to modify the parties' custodial schedule due to the Defendant's out of town work schedule and the fact that the children are now of school age. Due to the children's need for stability and consistency the parties' physical custodial schedule shall be as follows:

During the school year, the Plaintiff shall have his custodial periods with the minor children from Thursday afternoon when school recesses until Monday morning when school resumes on the second and fourth weekends of the month.

After school recesses for the summer, the parties shall alternate weeks on a seven (7) days on, seven (7) days off basis.

Holiday visitation shall be exercised in accordance with the visitation schedule promulgated in the second judicial district, a copy of which is attached to this Order.

4. The Court wants to promote cooperation between the parties but strongly encourages both of them to adhere to the schedule as much as possible.

5. The court finds that the Plaintiff is in contempt of this Court's previous order for his failure to pay the Defendant alimony. The Court notes that he unilaterally made the decision not to pay alimony and actually testified that he did not intend to pay it before he entered into the Property Settlement Agreement. The Court further finds that the Plaintiff is in contempt for his failure to pay child support in accordance with the Order of the Court. The parties must realize that once their agreements are reduced to a court order, then they are

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