Reynolds v. Reynolds

687 S.W.3d 584

2024 Ark. App. 229

Jason REYNOLDS, Appellant

v.Mary "Katie" REYNOLDS, Appellee

No. CV-23-344

Court of Appeals of Arkansas, DIVISION I.

Opinion Delivered April 3, 2024

APPEAL FROM THE PRAIRIE COUNTY CIRCUIT COURT, SOUTHERN DISTRICT [NO. 59SDR-17-41], HONORABLE CRAIG HANNAH, JUDGE

Robert S. Tschiemer, Mayflower, for appellant.

Taylor & Taylor Law Firm, P.A., by: Tory H. Lewis, Andrew M. Taylor, and Tasha C. Taylor, for appellee.

WENDY SCHOLTENS WOOD, Judge

₁Jason Reynolds appeals the Prairie County Circuit Court’s September 29, 2022 order denying his petition for modification of custody of his minor children (MC1 and MC2). Jason argues that the circuit court erred in finding that he failed to prove a material change in circumstances to warrant a modification of custody and that the circuit court’s initial custody decision no longer meets the children’s best interest. We affirm.

Jason and Kati¹ married on March 30, 2010. On October 26, 2017, Jason filed a complaint for divorce in which he sought custody of MC1 and MC2. Kati also sought custody of the children. The parties were divorced by an order entered on March 28, 2019, which awarded primary custody of the children to Kati. Jason was awarded visitation every ₂other weekend from after school Thursday to Monday morning; half of the summer divided as the first two weeks of June and July and the first week of August; and alternating years for spring break and other holidays, except Christmas, which was divided in two alternating time frames. In awarding custody to Kati, the court found that she was "credible, honest, and the most likely to facilitate a relationship between the noncustodial parent and the children," The decree contained a provision prohibiting either party from having "overnight guests of a romantic nature when the minor children are in his or her care and custody."²

On November 12, 2019, Jason filed a petition for contempt and for modification of visitation and child support in which he also sought a modification of custody, alleging that a material change of circumstances had occurred because Kati was "cohabiting" with a man to whom she was not married in violation of the circuit court’s order. Jason specifically alleged that she was living in a house trailer "owned by her boyfriend … with whom she frequently co-habits." In addition, Jason made allegations that Kati was not allowing him reasonable time with the children on their birthdays, was not providing telephone communication outside of the times required by the divorce decree, and was intending not to allow him one-half of the Christmas vacation. He further asserted that Kati did not have suitable housing and that she was overmedicating MC1.

₃At the June 25, 2020 hearing, Kati admitted that she was in a relationship with Kenny Williamson, who was married, and that she had moved into a house trailer on property owned by her and Williamson. Kati testified that Williamson did not live with her, but she acknowledged going with the children to Williamson’s deer camp, including on a state youth-hunt weekend, and on a trip to Tennessee, but she said that Williamson slept in his truck. In its oral ruling, the circuit court stated that it was concerned about Kati’s relationship with a married man but that it was not enough by itself to change custody. In an "amended final order" entered on August 17, 2020, the circuit court denied Jason’s petition for contempt and modification of custody, finding there had been no material change in circumstances to support a modification. However, the circuit court ordered that Jason’s summer visits were to begin at 5:00 p.m. instead of 6:00 p.m., Jason be allowed two hours of visitation with each minor child on the day before each child’s birthday, and Jason have twenty-four hours of visitation for any state youth hunt that does not fall on his weekend. The circuit court also ordered the parties to keep each other informed as to the children’s health, education, and extracurricular activities.

Two months later, on October 21, Jason filed a second petition for change of custody and contempt alleging that subsequent to the June 25 hearing, Kati and Williamson had shared a bedroom while on a beach vacation with the children. Jason also alleged that at the time of divorce, of this opinion, then, we will refer to the appellee as Kati.

Kati was living in Hazen near the school but had since moved to a trailer home outside Hazen, making it harder for the children to participate in school functions, ₄Kati continued to interfere with telephone visitations, Kati continued to overmedicate MC1, and MC2 was failing in his first-grade schoolwork.

An attorney ad litem was appointed, and a hearing took place on September 22, 2022, at which time MC1 and MC2 were in seventh and second grades, respectively. Kati and Williamson both testified that they were no longer dating and were not living together, yet they jointly owned the land where Kati’s mobile home was located, which was also where she lived at the time of the previous hearing. In regard to the 2020 beach trip, Kati testified that she took the children to the beach at the same time Williamson was there on a fishing trip with his friends. Although Williamson spent time with Kati and the children, Kati and Williamson denied that Williamson stayed overnight on the beach trip or at home when the children were present. Kati testified that neither of the children took any different medications than they did at the time of the June 2020 hearing and that the children attend the same school where she continues to work.

Jason testified that he has telephone visitation on Monday and Wednesday but is "lucky" to talk to the children any other time. He acknowledged that MC1 and MC2 have cell phones. Jason said that when MC1 does not answer his phone, he will call the number he has for MC2, explaining that "it’s either dead or they’re not answering" and that sometimes MC2 likes to talk and sometimes he does not. Jason said he was not told that one of the children was having a tooth pulled. Jason also testified about his name being listed after Williamson’s on the emergency-contact and school-pickup lists. Jason testified that Kati was supposed to provide him all school information but did not. He claimed that he was not ₅aware the school district had a website, but when asked why he did not get online to check the children’s grades or school calendar, Jason responded that he was not provided "access" to MC2’s online information. Jason admitted that he had never called the school to express any concerns about the children or ask for a calendar of events. Jason also said that he knew about the children’s grades.

In a September 29 order, the circuit court did not find Kati’s or Williamson’s testimony credible about their "not having intimate relations" while the children were present. The court found Kati in contempt for willfully violating the order prohibiting overnight guests of a romantic nature when the children are present and ordered her to pay $500 in attorney’s fees to Jason’s counsel. The court recognized that the attorney ad litem recommended that custody remain with Kati and that Jason be afforded more visitation. Consistent with the ad litem’s recommendation, the court awarded Jason visitation on Thursday nights when he does not have weekend visitation and alternating weeks in the summer.

In regard to custody, the circuit court did not find that a material change of circumstances existed to support a modification of custody. The circuit court found that both Kati and Jason are good parents who care about their children and want what is best for them. The circuit court found that Kati had engaged in proscribed behavior with Williamson, which the court addressed in the contempt finding. The circuit court further found that no other circumstances existed to warrant a finding of a material change of circumstances. Regarding the children’s school records, the court ordered Kati to list Jason ₆ahead of Williamson on the emergency-contact and school-pickup lists and to add Jason’s wife to those lists. The circuit court further found that Kati has an affirmative obligation to ensure that Jason receives school reports and records, which she may discharge by providing him with school-login information or by providing written information directly to him. Jason timely appealed.

[1–4] This court performs a de novo review of child-custody matters, but we will not reverse a circuit court’s findings unless they are clearly erroneous. Pace v. Pace, 2020 Ark. 108, at 9, 595 S.W.3d 347, 352. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been made. Williams v. Williams, 2019 Ark. App. 186, at 14, 575 S.W.3d 156, 163. Whether the circuit court’s findings are clearly erroneous turns largely on the credibility of the witnesses, and this court gives special deference to the superior position of the circuit court to evaluate the witnesses, their testimony, and the child’s best interest. Id., 575 S.W.3d at 163. There are no cases in which the superior position, ability, and opportunity of the circuit court to observe the parties carry as great a weight as those involving minor children. Dodd v. Gore, 2013 Ark. App. 547, at 5, 2013 WL 5509137.

[5–8] While a circuit court retains jurisdiction to modify an initial custody award, the standard for modification is more stringent than it is for the initial determination. Powell v. Marshall, 88 Ark. App. 257, 265, 197 S.W.3d 24, 28-29 (2004). A party seeking to modify custody must prove that a material change of circumstances has occurred since the last order of custody or that material facts were unknown to the court when the decree was entered. ₇Id., 197 S.W.3d at 28. If that threshold requirement is met, the court must then determine who should have custody with the sole...