559 S.W.3d 285
Ark. Ct. App.2018Background
- Jason and December divorced in 2013; December received primary custody of daughter L.B.; Jason had standard visitation.
- December later married Howard Melton; in 2016 law enforcement executed a search warrant at their home while Howard was investigated for child pornography; he was arrested and pled guilty in 2017.
- Jason filed to modify custody after learning of the indictment; the court granted Jason temporary custody in April 2017 and appointed an attorney ad litem for L.B.
- After additional hearings, the circuit court in September 2017 found material changes in circumstances and reinstated primary custody of L.B. to December.
- Jason appealed, arguing (1) the trial court misapplied the burden of proof by treating the temporary order as final and (2) the court’s findings did not support that a custody change served L.B.’s best interest.
Issues
| Issue | Plaintiff's Argument (Jason) | Defendant's Argument (December) | Held |
|---|---|---|---|
| Whether the trial court misapplied the burden of proof for custody modification | The April 2017 temporary custody order was effectively final, so December should have borne burden to show material change; Jason was required to prove his case twice | Issue was not raised/ruled on below and is therefore not preserved for appeal | Not preserved for review; appellate court refused to reach the merits |
| Whether the court’s findings supported a determination that material change occurred | The court failed to properly weigh undisputed facts and relied on irrelevant matters; evidence favored continuing Jason's custody | Trial court heard testimony, reviewed transcripts, and identified several material changes (stepfather’s conduct, December’s failure to inform, child-safety concerns, behavioral issues with Jason’s son) | Trial court’s findings were not clearly erroneous; they sufficed to show material change |
| Whether the court properly decided custody based solely on L.B.’s best interest | Evidence showed L.B. thrived with Jason and that December had past lapses in judgment regarding exposure to stepfather | Trial court considered best-interest factors (stability, relationships, safety), distance preventing joint custody, and therapy evidence; it observed witnesses and weighed credibility | Appellate court deferred to trial court’s credibility assessments and held the custody decision was not clearly erroneous |
| Whether the trial court impermissibly considered irrelevant evidence (e.g., behavior of Jason’s son) | Court improperly weighed D.B.’s conduct and other collateral matters that were not directly probative of L.B.’s best interest | Trial court found D.B.’s serious behavioral incidents (suicide attempt, assaults, punching L.B.) relevant to household safety and materially changed circumstances | Appellate court found those facts were properly considered and material; decision affirmed |
Key Cases Cited
- Hodge v. Hodge, 97 Ark. App. 217 (de novo review on appeal of custody; findings not reversed unless clearly erroneous)
- Taylor v. Taylor, 345 Ark. 300 (best interest is the polestar in custody cases)
- Rector v. Rector, 58 Ark. App. 132 (lists factors for child’s best interest)
- Geren Williams v. Geren, 458 S.W.3d 759 (custody-modification requires showing of material change; then decide custody based on best interest)
- Rice v. Rice, 508 S.W.3d 80 (issues not raised and ruled on below are not preserved for appeal)
- Lowder v. Gregory, 451 S.W.3d 220 (deference to trial court’s credibility determinations in custody cases)
- K.C. v. Ark. Dep’t of Human Servs., 374 S.W.3d 884 (appellate court will not substitute its credibility determinations for the trial court)
- Hewett v. Hewett, 547 S.W.3d 138 (custody modification requires showing of changed conditions bearing on child’s best interest)
- Jones v. Jones, 931 S.W.2d 767 (modification allowed where changed conditions affect child’s best interest)
- Westin v. Hays, 513 S.W.3d 900 (trial court not required to weight evidence the way a party desires)