Price v. Price

2020 Ark. App. 74

595 S.W.3d 32

Lache PRICE, Appellant

v.Christopher D. PRICE, Appellee

No. CV-19-589

Court of Appeals of Arkansas, DIVISION III.

Opinion Delivered: February 5, 2020

WH Law, North Little Rock, by: Charlie Cunningham, for appellant.

Knollmeyer Law Office, P.A., Jacksonville, by: Michael Knollmeyer, for appellee.

ROBERT J. GLADWIN, Judge

Appellant Lache Price appeals the April 26, 2019 order from the Pulaski County Circuit Court. She argues that the circuit court erred as a matter of law in considering evidence that was barred by collateral estoppel and res judicata and that the circuit court erred in its application of Singletary v. Singletary , 2013 Ark. 506, 431 S.W.3d 234, allowing appellee Christopher Price to relocate with the parties’ minor child to Indiana. Because the circuit court failed to make a requisite finding as to whether there had been a material change of circumstances, we reverse and dismiss.

I. Facts

Prior to the parties’ separation, they resided together with their minor child, H.P., in South Dakota, where Christopher served in the military. In August 2017, Lache traveled to Arkansas to look for places for the family to move after Christopher fulfilled his military obligations. Shortly thereafter, Lache informed Christopher that she wanted a divorce and would not be returning to South Dakota. Christopher eventually moved to Arkansas in early 2018 after learning that Lache was living with Jeff Ingram, a convicted felon,¹ and was pregnant with Ingram’s child.²

Christopher filed a complaint for divorce on March 21, 2018, on the basis of the general-indignities ground, and on April 19, Lache timely responded and counterclaimed for divorce on the same ground. At the final divorce hearing on November 1, evidence was presented to the circuit court concerning, among other things, Lache’s boyfriend, Ingram; Christopher’s anticipated move to Indiana and the town where he wished to relocate; issues relating to Lache’s vehicle;³ and Lache’s residential moves since coming to Arkansas. Christopher specifically notified the circuit court that he intended to move to Indiana and that he thought he and H.P. would have a better life in Indiana for both economic and family-support reasons.

The circuit court ruled that because no motion to relocate had been filed in the case, it would not consider the issue of Christopher’s relocation to Indiana but would take it up later, after Christopher filed a formal motion to relocate. The circuit court informed Lache that "there is a possibility that (Christopher will) get to move with the child to Indiana.... But I'm going to at least make him go through the legal procedures to do so." At the end of the hearing, the circuit court noted that both parties were "good parents" and granted true joint custody while reserving in the divorce decree entered on November 30 Christopher’s ability to petition for relocation.

On December 11, Christopher filed a motion for modification and relocation. In his motion, Christopher pleaded, "Based upon all the factors that were evident during the divorce proceedings, it would be in the best interests of the child that he be allowed to relocate to Indiana" and "that [Christopher’s] relocation constitutes a material change in circumstance for which modification should be based." Lache retained counsel and filed an answer to the motion on January 30, 2019.

At the April 12 hearing on Christopher’s motion for modification and relocation, Lache’s counsel argued that Christopher had not pled a sufficient material change in circumstances and that the already litigated issues were barred by collateral estoppel or should have been previously litigated per res judicata. Over Lache’s objections, the circuit court heard testimony as to why Christopher wanted to relocate to Indiana; details on two jobs and daycare for H.P. that he had secured since the last hearing; issues concerning Ingram; Lache’s residential moves since coming to Arkansas; problems with Lache’s vehicle; and the parties’ reasons for moving to Arkansas.

In closing statements, counsel for Lache argued that Christopher did not argue a sufficient material change under Singletary, supra. The circuit court disagreed and also found that it had not tried the issue of relocation but had instead specifically reserved that issue. Accordingly, the circuit court found that the issue of relocation was not res judicata and that the related evidence would be allowed.

On April 26, the circuit court granted Christopher’s motion for modification and relocation. In its order, the circuit court noted Christopher’s two job offers in Indiana; the substantial help available from his siblings in Indiana; Lache’s lack of income; Lache’s duties to her disabled daughter by her adulterous relationship with Ingram; Lache’s cohabitation with Ingram, a convicted felon; and Lache’s lack of secure transportation. Nothing in the order, however, analyzes or constitutes a finding with respect to the material-change-of-circumstances issue. The circuit court merely stated that Singletary , was the appropriate case to apply and found that it was in H.P.’s best interest to relocate to Indiana with Christopher. On May 8, Lache filed her notice of appeal of the circuit court’s order.

II. Standard of Review and Applicable Law

This court recently reiterated its well-settled de novo standard of review in cases involving child custody that it will not reverse a circuit court’s findings unless they are clearly erroneous. Williams v. Williams , 2019 Ark. App. 186, at 19–20, 575 S.W.3d 156, 163–64. "A finding is clearly erroneous when the reviewing court, on the entire evidence, is left with a definite and firm conviction that a mistake has been committed." Id. Special deference is given to the superior position of the circuit court to evaluate witnesses, their testimony, and the child’s best interests. Id. However, a circuit court’s conclusions of law are given no deference on appeal. Fischer v. Smith , 2012 Ark. App. 342, at 1–2, 415 S.W.3d 40, 40–41.

III. Discussion

We initially dispose of Lache’s argument that the circuit court erred as a matter of law in reconsidering evidence that was barred by collateral estoppel and res judicata. At the hearing on the motion to relocate, Lache objected to any evidence that had been introduced in the divorce hearing being reintroduced at the hearing on the motion to modify and relocate, stating that the issue had been litigated before and that the evidence was barred by collateral estoppel or res judicata. The circuit court responded, clearly stating the following:

Well, I think he wanted to get into the relocation the last time, it wasn't pled so I wouldn't let him do it. I mean, it’s not that he didn't attempt to, but I thought he should have to file a motion to give your client a chance to respond—you know, know [sic] that what she’s responding to, because she wouldn't have known.

This court has held that

[t]he doctrine of res judicata is not strictly applicable in child-custody matters. Our supreme court favors a more flexible approach to res judicata in these settings to allow a trial court to respond to asserted changes in circumstances and the best interest of the child. The trial court’s retention of jurisdiction over child-custody and visitation matters, and the requirement of a showing of materially changed circumstances, support the logic behind a more flexible approach in child-custody and visitation cases.

Bamburg v. Bamburg , 2014 Ark. App. 269, at 9, 435 S.W.3d 6, 12 (internal citations omitted). Paragraph 8 of the divorce decree provides:

That [Christopher] has indicated a strong desire to relocate from central Arkansas to Indiana. [Christopher] is hereby directed to petition the Court before leaving the state with the parties’ minor child on a permanent basis. Until said time, [Christopher] is allowed to take his child to visit with [Christopher’s] family in Indiana for up to a week at a time. [Christopher] shall give [Lache] notice of his intent to take the child to Indiana for visits no less than seven (7) days in advance.

Having considered the rationale set forth in Bamburg , supra , accompanied by the clear language of the divorce...