Wadley v. Wadley

2019 Ark. App. 549

590 S.W.3d 754

Cody WADLEY, Appellant

v.Katie WADLEY, Appellee

No. CV-19-406

Court of Appeals of Arkansas, DIVISIONS III & IV.

Opinion Delivered November 20, 2019

Rehearing Denied January 15, 2020

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

Brown Law Firm, Rebecca Brown, P.A., by: Rebecca Brown, Benton, for appellee.

LARRY D. VAUGHT, Judge

The divorce decree entered by the Pulaski County Circuit Court awarded Cody Wadley and Katie Wadley joint legal custody of their child AW (born October 17, 2016). The decree further gave Katie primary physical custody and gave Cody visitation, with the parties spending approximately equal time with AW, and ordered Cody to pay child support. Five months after the decree was entered, Katie moved to reduce Cody's visitation and to request that Cody be ordered to pay back child support. On March 28, 2019, the circuit court entered an order maintaining the parties' joint legal custody of AW with Katie serving as primary physical custodian, but the court reduced Cody's visitation to every other weekend and one weeknight a week. The court also found Cody in contempt for failing to pay child support. Cody appeals the order, arguing that there was no material change of circumstances warranting the modification in visitation, the modification is not in AW's best interest, and the court erred in finding him in contempt. We affirm in part and reverse and dismiss in part.

In reviewing domestic-relations cases, appellate courts consider the evidence de novo. Baber v. Baber , 2011 Ark. 40, at 9, 378 S.W.3d 699, 705. We will not reverse the circuit court's findings unless they are clearly erroneous. Id. , 378 S.W.3d at 705. Whether the circuit court's findings are clearly erroneous turns largely on the credibility of the witnesses, and we give special deference to the superior position of the circuit court to evaluate the witnesses, their testimony, and the child's best interest. Id. , 378 S.W.3d at 705.

A circuit court maintains continuing jurisdiction over visitation and may modify or vacate those orders at any time when it becomes aware of a change in circumstances or facts not known to it at the time of the initial order. Id. , 378 S.W.3d at 705. Although visitation is always modifiable, to promote stability and continuity for the children and to discourage repeated litigation of the same issues, courts require more rigid standards for modification than for initial determinations. Id. , 378 S.W.3d at 705. Thus, the party seeking a change in visitation has the burden to demonstrate a material change in circumstances that warrants such a change. Id. , 378 S.W.3d at 705. The primary consideration regarding visitation is the best interest of the child. Id. , 378 S.W.3d at 705. Fixing visitation rights is a matter that lies within the sound discretion of the circuit court. Id. at 10, 378 S.W.3d at 705.

Cody's first point on appeal is that the circuit court clearly erred in finding a material change in circumstances to support the order reducing his visitation. The circuit court first found that

the parties, who at the time of the divorce were able to agree on seemingly everything (the divorce was uncontested and the parties agreed on property distribution, debt allocation, custody-and-visitation schedule, and child support), are no longer able to communicate effectively, causing their ability to coparent to bog down.

The court then found that since the decree had been entered, the following circumstances had changed: (1) the parties had been unable to get along; (2) both parties had moved; (3) Cody had at least two girlfriends either live with him or stay the night a considerable amount of time, and he was allowing these women to step into a "quasi-step-parenting role rather quickly and without discussion with Katie"; (4) Cody allowed his ex-girlfriend, Whitney Sims, to watch AW "the majority of the time" during his visitation; (5) Cody allowed his new girlfriend, Allison Lester, whom he had not been dating long, to pick up AW at exchanges; (6) Cody was smoking marijuana while AW was in his care, and while Cody claimed he had stopped smoking marijuana in December 2018, he tested positive for marijuana the day of the hearing, which was forty-five days later, and there was evidence that the specimen had been diluted; (7) Cody had changed jobs; and (8) Cody had been diagnosed with cancer and is undergoing treatment. The court found that while these circumstances considered alone may seem "minor," "the culmination of the changes is significant and is sufficient to convince the Court that there has been a material change in circumstances affecting the child's best interest sufficient to warrant a modification in [Cody's] visitation." We cannot say that the circuit court clearly erred in finding a material change in circumstances.

At the hearing, Katie stated that since the divorce, she and Cody no longer communicate well and that they do not get along. She testified about disputes that arose (1) over a custody exchange during the Thanksgiving holiday; (2) when Katie confronted Cody about his marijuana use and voiced her opposition to it; he admitted his marijuana use but told her he would not give it up and that they would "settle it in court"; (3) when Katie asked Cody if she could keep AW while Cody was in the hospital for cancer treatment, he refused; (4) when Katie asked Cody who was keeping AW when Cody was not caring for him, Cody refused to tell her; and (5) when Katie asked Cody about Allison and how much time she was spending with AW, Cody refused to answer.

Significantly, Cody admitted that he and Katie "have a lot of communication faults between" them. He testified about another dispute that arose between the parties—which was cited in the circuit court's order—over whether to apply the day-care or school-district schedule for the custody exchange during the Christmas holiday. This dispute required the involvement of the parties' attorneys. While the circuit court cited only one example of the parties' inability to get along in its order, under our de novo review we consider all the examples.

Katie also testified that Cody has had "numerous" girlfriends since the divorce decree was entered and that he had been letting his girlfriends take care of AW. Whitney corroborated Katie's testimony. Whitney stated that she took care of AW 90 to 95 percent of the time Cody had custody of AW. Whitney testified that Cody "would pick [AW] up from daycare or pick him up from Katie and just give him to me. And then he would go to the gym or go hang out with friends or disappear. So I had [AW] alone most of the time."

Katie stated that Cody lists the women he dates as people authorized to pick up AW from day care. Katie stated that Cody had been dating Allison only a month or a month and a half when he placed her name on the day care pickup list.¹ This evidence was not disputed by Cody, and it was not disputed by Allison, who attended the hearing but did not testify. Katie said Allison is nineteen years old, barely knew AW or Cody at that time, and should not have been allowed to pick up AW from daycare.

Katie testified that after the divorce, Cody had overnight romantic guests while AW was in his care, which is prohibited in the divorce decree.² Cody testified that he had not had any overnight romantic guests after the divorce decree was entered. However, Katie's testimony was supported by Whitney, who testified that after Cody's divorce, she and Cody spent the night together when Cody had custody of AW. She said, "He stayed at my house and I stayed at his house as well." Whitney further stated that Cody would lie to Katie when Whitney was staying the night and "act like [Whitney] wasn't there."

Arkansas appellate courts have held that extramarital cohabitation in the presence of children "has never been condoned in Arkansas, is contrary to the public policy of promoting a stable environment for children, and may of itself constitute a material change of circumstances warranting a change of custody." Alphin v. Alphin , 364 Ark. 332, 341, 219 S.W.3d 160, 165–66 (2005) (citing Word v. Remick , 75 Ark. App. 390, 396, 58 S.W.3d 422, 427 (2001) ; Hamilton v. Barrett , 337 Ark. 460, 989 S.W.2d 520 (1999) ; Taylor v. Taylor , 353 Ark. 69, 80, 110 S.W.3d 731, 737 (2003) (noting that the supreme court has held that "a parent's unmarried cohabitation with a romantic partner, or a parent's promiscuous conduct or lifestyle, in the presence of a child cannot be abided"); Taylor v. Taylor , 345 Ark. 300, 47 S.W.3d 222 (2001) ).

Finally, Katie testified that Cody smokes marijuana while AW is in Cody's care. Whitney confirmed this when she testified that Cody smoked marijuana on a regular basis while AW was in the home. Cody admitted smoking marijuana. In direct response to questioning by the circuit court, Cody said that he had not smoked marijuana since December 2018 or the beginning of 2019 and would "most likely be clean," he had "never failed a drug test," and if he was tested that day, "[he] should be fine." However, Cody tested positive for THC the day of the hearing—more than forty-five days after he allegedly last smoked marijuana—and there was evidence that the specimen Cody provided had been diluted. See Stone v. Steed , 54 Ark. App. 11, 15–16, 923 S.W.2d 282, 284–85 (1996) (affirming material-change-of-circumstances finding where there was evidence of drug use by the appellant and individuals in her home while appellant had custody of her child).

In this case, the circuit court did not believe Cody when he testified that he had quit smoking marijuana or that he had no overnight guests after the divorce decree was entered. The court also rejected Cody's primary argument asserted at trial and on appeal that Katie's only motive for filing to modify his visitation was to retaliate against him for dating Allison. Instead, the court believed Katie and Whitney when they testified that Cody was...