Schnick v. Russell

2022 Ark. App. 212

645 S.W.3d 345

Crissy SCHNICK, Appellant

v.Gary RUSSELL, Appellee

No. CV-21-160

Court of Appeals of Arkansas, DIVISION II.

Opinion Delivered May 11, 2022

Richard E. Worsham, Little Rock, for appellant.

Owens, Mixon, Heller & Smith, P.A., by: Aaron D. Heller and W. Lance Owens, Jonesboro, for appellee.

STEPHANIE POTTER BARRETT, Judge

Appellant Crissy Schnick appeals the Craighead County Circuit Court's order denying her request to relocate with the parties’ minor children, V.O.R. and C.R.R., and awarding appellee, her ex-husband, Gary Russell, primary physical custody of the children. On appeal, she contends that the circuit court erroneously relied on and misapplied Singletary v. Singletary , 2013 Ark. 506, 431 S.W.3d 234 ; when Hollandsworth v. Knyzewski , 353 Ark. 470, 109 S.W.3d 653 (2003), was the appropriate case law for this situation. We find no error and affirm the circuit court.

The parties were divorced on March 12, 2012, and were awarded "joint legal and physical custody, care, and control" of their two minor children, V.O.R. (born January 27, 2007) and C.R.R. (born December 18, 2008). On September 25, 2019, Crissy filed a petition for modification and request to relocate children wherein she sought the circuit court's permission to relocate to Omaha, Nebraska, where she had obtained a new job. Specifically, she requested that C.R.R. be allowed to go to Omaha on December 21, 2019, and that V.O.R. be allowed to go to Omaha in May 2020 at the end of the school year, and she requested that the current custody arrangement be modified and she be named the primary custodian of the children. Gary filed an answer to Crissy's petition and a counterclaim seeking sole custody of the children.

On August 26, 2020, a hearing was held on Crissy's relocation-and-custody petition. Crissy testified that she and Gary agreed to "true joint custody" at the time of their 2012 divorce; however, that was not what had transpired since then, although they tried to keep it a 50/50 division of time "to best we could." She stated that she and Gary had always worked together for the kids until this job opportunity arose. Crissy created a calendar chart showing how many days she had spent with the children since the divorce. She testified that she believed the children spent 74 percent of their time with her in 2012, 61 percent in 2013, 58 percent in 2014, 57.8 percent in 2015, 64 percent in 2016, and 65 percent in 2017. Crissy testified that V.O.R. switched from the Walnut Ridge School District to the Valley View School District for more educational opportunities in 2017. Crissy stated that in 2018, V.O.R. primarily lived with Gary during the week, and C.R.R. primarily lived with her. They split custody evenly on the weekends and tried to keep the children together. Crissy also stated that she and Gary would try and schedule mid-week visits for the children. Crissy estimated that she had the children 66 percent of the time in 2018 but had not split this time up by child. She estimated that she had the children 57 percent of the time in 2019, even after her move to Omaha. She stated that in 2020, she had the children about 57 percent of the time and that they had evenly shared custody. She said she was doing a lot of weekend trips to Arkansas. Crissy testified that she believed she would be able to divide her and Gary's time with the children "pretty close" to what they had been doing if she was allowed to relocate.

Crissy testified that she wanted to move to Omaha because she had a better job opportunity and that was where the family of her husband, Joel Schnick, lives. She said that she had been employed as a radiology leadership director at Lawrence County Health Systems. She said that Lawrence County had been under a wage freeze for the past four years, and she attempted to find other local employment. Crissy stated she was unable to find a position in the surrounding area of northeast Arkansas or Memphis. Her new job in Omaha was paying her two dollars an hour than her job at Lawrence County. She admitted that this was the only job application she submitted in her job search. She stated she needed a leadership position to maintain her level of pay.

Crissy testified that she had remarried in 2013 and that she and Joel had separated in 2018. They sold their home and moved into separate residences but have since reconciled. Crissy denied that her and Joel's relationship was ever really bad. Crissy explained that she moved to Omaha at the end of October in 2019, and Joel remained in her home in Walnut Ridge. She left C.R.R. in Joel's care except when it was Gary's night or weekend during this time. She tried to come home on weekends to keep things normal. Crissy admitted she had called 911 on Gary on November 4, 2019, when he attempted to pick up C.R.R. from Joel's custody, and she and Joel refused to allow Gary to take C.R.R. with him. After this incident, Gary retained physical custody of C.R.R. and moved her to the Valley View School District after the fall semester ended.

Crissy testified that she did not believe the parties could keep up the joint-custody arrangement anymore. She stated that her and Gary's communication had been poor since he moved C.R.R. to Valley View schools. Crissy testified that she would allow V.O.R. to stay with Gary if that was what he wanted to do. She said that she and Gary had tried really hard to keep V.O.R. and C.R.R. close since they were living in separate houses and had no intention of splitting them up. Crissy said that prior to her relocation to Omaha, she and Gary had always shared personal information with each other, including her relationship issues with her current husband and other major life events.

When asked by the circuit court what exactly her plan for the children was if she was allowed to relocate, Crissy said she would utilize long weekends and one-way flights to speed up travel time, and she would be more giving with summer visitation. She believed that the children's school schedules would be different, so C.R.R. would be able to go to Arkansas and see Gary and V.O.R. and vice versa. She explained that the drive to Omaha was about nine and a half hours, so she proposed they share the costs of flying the children to and from Omaha.

V.O.R. testified that he wanted to remain in Arkansas. He said that he has a good relationship with both parents and their spouses, and that he and C.R.R. are close with their three-year-old stepsister. V.O.R. said that if C.R.R. was allowed to move to Omaha, he would want to see her as much as possible. V.O.R. concluded his testimony by saying that his parents had always gotten along great until "this Nebraska thing" came up, but they had tried to keep the conflict away from him and C.R.R.

C.R.R. testified that she did not feel like either parent was making her choose a side and did not feel torn between the two of them. She told the circuit court that she would like to live with her mom because she was a little closer to her than her father and that she would prefer if her mom just stayed in Arkansas so she could see everyone.

Gary testified that he understood the initial divorce decree to be a true joint custody arrangement and that they would equally share the responsibilities of the children. Gary disagreed with some of Crissy's estimations of how much time each party spent with the children, specifically the 2012 estimate of 74 percent with her, and he thought 2016 would have been closer to a 57/43 split. He and his wife had a baby in February 2017, and he said he would have tried to keep the custody at 50 percent. He testified he thought 2017 would have been more of a 60/40 split for C.R.R. and 40/60 split for V.O.R. Gary said that from the fall of 2017 until Crissy left for Omaha, he would typically have V.O.R. on Sunday, Monday, Tuesday, and Thursday with Crissy having C.R.R. on those days. He would have C.R.R. on Wednesday, Friday, and Saturday, and Crissy would have V.O.R. on those days. He said they tried to split the weekends so that would each get equal time, but it was not always possible. Gary said that he has a close relationship with C.R.R.

Gary testified that when Crissy told him about the move to Omaha, he said he would not agree because it would not be feasible to keep their joint-custody arrangement due to the distance. He believed the only connection Crissy had in Omaha was that was where Joel's parents lived. He did not believe that the children could have a normal social life and a relationship with both parents in separate states. Gary said that V.O.R. plays soccer and has tournaments every other weekend, and if C.R.R. made friends in Omaha, she would not be able to have sleepovers because she would have to go see her dad in Arkansas. He was concerned about the children spending entire days flying back and forth to Omaha and about them flying alone. Gary testified that he did not see this move benefit anyone other than Crissy, and he did not believe it was in the children's best interest for the circuit court to allow it. Gary believed the children needed to be around both parents.

The circuit court issued its ruling from the bench, and a written order was entered on December 7, 2020. In the order, the circuit court found that because of the parties’ decree and their practice to share joint custody with equal time, appellant's relocation was controlled by Singletary , 2013 Ark. 506, 431 S.W.3d 234, not Hollandsworth , 353 Ark. 470, 109 S.W.3d 653.

The circuit court found that there had been a substantial change in circumstances since the entry of the decree due to Crissy's relocation to Omaha. The circuit court further found a material change of circumstances by the failure of the parties to communicate after Crissy's move to Omaha. Under the best-interest analysis, the circuit court found that the marginal benefit of Crissy's move to Omaha did not outweigh the cost to the relationships between the children and...