Nalley v. Adams

2021 Ark. 191

632 S.W.3d 297

Margaret E. NALLEY, Appellant

v.Michael ADAMS, Appellee

No. CV-20-550

Supreme Court of Arkansas.

Opinion Delivered: October 28, 2021

Mann & Kemp, PLLC, by: Harrison Kemp, for appellant.

LaCerra, Dickson, Hoover & Rogers, PLLC, by: Traci LaCerra, North Little Rock, for appellee.

KAREN R. BAKER, Associate Justice

Appellant Margaret E. Nalley appeals from the Pulaski County Circuit Court's order granting appellee Michael Adams's motion for modification of custody of their daughter, M.A. The court of appeals reversed and remanded the circuit court's order. Nalley v. Adams , 2021 Ark. App. 167, 625 S.W.3d 336. Adams petitioned this court for review, which we granted on June 24, 2021. When we grant a petition for review, we treat the appeal as if it had been originally filed in this court. Russell v. Russell , 2013 Ark. 372, 430 S.W.3d 15. Nalley's sole point on appeal is that the circuit court erred in modifying the previous custody order after finding that Adams's change in employment and move to Little Rock constituted a material change in circumstances. We affirm.

On May 10, 2017, M.A. was born out of wedlock to Nalley. Nalley, Adams, and M.A. lived together in Jonesboro until October 3, 2018, when Nalley and Adams separated. Nalley moved to Little Rock, and on October 5, Nalley filed a complaint for paternity adjudication and child support in the Pulaski County Circuit Court. In her complaint, Nalley requested that the circuit court declare Adams to be the father of M.A. Nalley also asserted that it is in M.A.’s best interest that Nalley remain the primary caretaker and hold legal custody of M.A.

On July 17, 2019, the circuit court entered its written order finding that both parties acknowledge that Adams is M.A.’s father. The circuit court found that "[t]he parties stipulate that they shall have joint legal custody of [M.A.] with the mother serving as the primary caregiver." The order further provided:

3. Shared time. The mother lives in Little Rock, Arkansas and the father lives in Jonesboro, Arkansas, a travel time of slightly over two hours. The parties lived together in Jonesboro until October 3, 2018 when they separated and the mother moved to Little Rock in search of employment.

4. ... The mother has now obtained employment at Baptist Hospital[.] The father is an anesthesiologist in Jonesboro and, up to the present date, worked not only his shifts at a hospital but also moonlighted in Siloam Springs, Arkansas and worked other doctors’ shifts in Jonesboro for additional compensation. The father states that he has now decided to only work his required shifts so that he will have more time available to visit with their daughter.

5. The Court finds that both parties are suitable to provide the care, love and nurture for the minor child. Both are medical professionals, well-educated and capable of making good decisions for their daughter. It is a compliment to both parties that they understood and agreed that there should be joint custody of the child recognizing that the shortfalls of either party were insufficient to prevent a joint custodial relationship. To say it another way, both parties recognize that the other party is, and can be, a proper parent for the child.

6. Unfortunately, the parties live two hours away from each other which makes it difficult to fashion a schedule so that both parties will have adequate time with the minor child. To complicate matters, the mother indicated that she works three 12-hour shifts.... The father submitted a schedule for days he is off from his work, but the schedule provides little flexibility.

7. The Court has considered the desires of both parties, the recommendation of the attorney ad litem and the work schedules of both parties in trying to fashion a shared visitation schedule for the parties and their two-year-old child. The parties are encouraged to offer flexibility to the other party as much as possible.

....

10. Both parties are free to request additional visitation with the minor child at any reasonable time. Particularly, if the father elects to visit the child in Little Rock for an overnight, he must give the mother reasonable notice. Reasonable notice is at least 24 hours in advance. If the mother has plans for that night, additional time for visitation is to be arranged.

The circuit court also provided a specific visitation schedule.

On December 30, 2019, Adams filed a motion for contempt alleging that Nalley has systematically refused to let him have additional time with M.A. On January 22, 2020, Nalley filed an amended response stating that she has allowed, and continues to allow, additional visitation.

On February 24, 2020, Adams filed an amended motion for contempt and for modification. Adams again asserted his contempt allegations against Nalley. Further, Adams stated that he was relocating to Little Rock due to his employment in Hot Springs beginning in July 2020. Therefore, because the circuit court's previous order awarded joint custody, Adams was entitled to equal time with M.A.

On February 25, Nalley filed a response to the amended motion for contempt and for modification. Nalley asserted that in order to promote stability, predictability, and continuity in M.A.’s life, the parties’ custody order should not be modified.

On June 29, 2020, the circuit court held a hearing on Adams's motions. On July 8, 2020, the circuit court entered its written order finding that after the visitation schedule was set in the July 2019 order, Adams immediately began requesting additional time with M.A. After considering the evidence provided by Adams, the circuit court found that Nalley was not in contempt of court, and it made the following findings regarding custody:

7. Custody. The Plaintiff remains living in Little Rock, Arkansas with the minor child and the Defendant has now relocated to Little Rock, Arkansas but works in Hot Springs, Arkansas at a pain clinic.

8. The Defendant alleges a material change in circumstances since he is now in Little Rock, Arkansas and has a favorable work schedule of 8:00 a.m. to 4:00 p.m. Monday through Thursday. The Defendant points out that the Court found that both parties are "suitable to provide care, love and nurture for the minor child," both are "well-educated and capable of making good decisions for their daughter" and both "agree that there should be joint custody of the child recognizing that the shortfalls of either party were insufficient to prevent a joint custodial relationship." The Defendant requests that the parties share equal time with the minor child.

9. The Defendant's material change of circumstances is that he now lives in Little Rock, Arkansas, has a set schedule favorable to taking care of the minor child and that he would like to spend more time with the child.

10. Normally, the material change of circumstances has to do with the opposing party. In this case, the Plaintiff's circumstances have not changed. The Plaintiff still works at Baptist Hospital and provides the everyday nurture and care for the child other than when the Defendant has visitation with the child.

11. However, the Court has already ordered, and the parties agreed, that they shall have joint legal custody of the child. The only reason in the initial Order that the parties did not share equal time with the child was that the Defendant lived in Jonesboro, Arkansas and the Plaintiff and child lived in Little Rock, Arkansas. Since the Defendant has moved to Little Rock, there is no discernable reason why each party could not share equal time with the parties’ three-year-old child. The law is clear in Arkansas that joint custody with equal time is favored.

12. The Court orders that the parties shall share joint custody with the minor child with the Plaintiff and the Defendant alternating weeks with an exchange on Friday after school. The Court, however, continues the order that Plaintiff shall be the final decision maker regarding all medical and educational decisions for the child but only after the Defendant has provided his input in all decisions.

(Emphasis added.) Nalley appeals.

I. Standard of Review

In reviewing domestic-relations cases, appellate courts consider the evidence de novo. Baber v. Baber , 2011 Ark. 40, 378 S.W.3d 699. We will not reverse the circuit court's findings unless they are clearly erroneous. Id. A finding is clearly erroneous when the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been made. Stehle v. Zimmerebner , 375 Ark. 446, 291 S.W.3d 573 (2009). When the question 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 and their testimony. Baber , supra.

II. Point on Appeal

For her sole point on appeal, Nalley argues that the circuit court erred in finding that Adams's change in employment and move to Little Rock constituted a material change in circumstances that warranted modification of child custody to grant Adams equal time with M.A. To support her position, Nalley relies on our statement acknowledging "the majority view that a change of circumstances of the noncustodial parent, including a claim of an improved life because of a recent marriage, is not sufficient to justify modifying custody." Jones v. Jones , 326 Ark. 481, 490, 931 S.W.2d 767, 771 (1996) (citing Jeff Atkinson, Modern Child Custody Practice § 9.07, at 462–63 (1986)). Nalley also relies on our statement in Jones that the noncustodial parent "cannot use the circumstances he created as grounds to modify custody." Jones , 326 Ark. at 491, 931 S.W.2d at 772.

Adams responds that the circuit court correctly found that his move to Little Rock was a material change in circumstances sufficient to modify custody. Adams further responds that due to circumstances beyond the control of either party, he was able to secure...