Baber v. Baber
2011 Ark. 40
| Ark. | 2011Background
- Divorce decree entered Sept 19, 2008; child support set at $2700/month; appellee custody of two children; appellant visitation; decree prohibited alcohol/drug use during visitation and allowed denial of visitation if suspected intoxication.
- Appellee filed a motion (April 27, 2009) to modify visitation, alleging material changes including appellant’s alleged drug/alcohol use and irregular visitation.
- Appellant disputed material changes and claimed appellee’s motive was to harass/punish him; he sought unqualified visitation.
- Evidence at the hearing showed appellant’s recent alcohol use, treatment follow-up issues, and he admitted drinking during a visitation weekend, along with accompanying testimony and photographs.
- Circuit court issued a letter opinion (Nov 9, 2009) suspending unsupervised visitation, ordering supervised visitation, no driving with children, and later ordered modification of visitation; also addressed child support and fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Modification of visitation standard | Baber contends no material change or best interests support modification | Baber argues modification was harassment, not best interests | Court affirmed modification; material change shown and best interests served |
| Best interests labeling | Court should explicitly state best interests | Explicit wording unnecessary when clearly considered | Not error to omit explicit phrase; court considered best interests |
| Denial of child-support reduction | Tax returns show reduced income warranting lower support | Income not clearly changed; order followed AO No. 10 | No clear change; court did not abuse discretion in denying reduction |
| Attorney’s fees award | Fees should go to Baber if he prevailed on most issues | Appellee prevailed on visitation and supports; discretion to award | Affirmed award of attorney’s fees; no abuse of discretion |
| Material change in circumstances (drug/alcohol use) | Evidence failed to show sustained change justifying modification | Evidence showed ongoing alcohol use; material change established | Material change found; visitation modified accordingly |
Key Cases Cited
- Hass v. Hass, 97 S.W.3d 424 (Ark. App. 2003) (standard for modification and best interests of child in visitation decisions)
- Guest v. San Pedro, 19 S.W.3d 62 (Ark. App. 2000) (courts not require magic words; focus on substantive best interests)
- Meins v. Meins, 218 S.W.3d 366 (Ark. App. 2005) (rigid standards for modification to promote stability)
- Martin v. Scharbor, 233 S.W.3d 689 (Ark. App. 2006) (continuing jurisdiction; changed circumstances standard)
- McGee v. McGee, 262 S.W.3d 622 (Ark. App. 2007) (credibility and weight of testimony in child-support determinations)