Chester v. Pilcher
430 S.W.3d 130
Ark. Ct. App.2013Background
- Parents (never married) have two children: J.P. (b. 2008) and D.C. (b. 2010). Custody was with Catherine; Kevin was granted graduated visitation and his Social Security disability benefits were applied to child support in a December 2010 order.
- Catherine suspended visitation after a June 2012 visit and reported suspected sexual abuse; DHS investigated and later found the allegations unsubstantiated for both children.
- Catherine moved in August 2012 to modify/suspend Kevin’s visitation, alleging unsafe home conditions, drug use, refusal to follow medical advice, failure to use car seats, exposure to inappropriate adults, filthy living conditions, and children returning ill or exhibiting inappropriate/sexualized behavior.
- Kevin denied allegations, filed a contempt counterclaim for Catherine’s suspension of visits, and sought combined visitation for both children and restoration of the prior schedule; he introduced DHS/Crimes Against Children notices finding the sexual-abuse reports unsubstantiated.
- After a November 27, 2012 hearing, the circuit court denied Catherine’s motion, found her in contempt (without punishment), ordered resumed visitation per the original graduated schedule (including weekend 5 p.m. Fri–5 p.m. Sun every other weekend), enjoined negative talk about the other parent to the children, and changed D.C.’s surname to Pilcher.
- Catherine appealed; the Court of Appeals reviewed the visitation decision de novo but gave deference to the trial court’s credibility findings and affirmed.
Issues
| Issue | Plaintiff's Argument (Catherine) | Defendant's Argument (Pilcher) | Held |
|---|---|---|---|
| Whether Kevin showed a material change in circumstances to justify modification of visitation | Kevin failed to show a material change; Catherine asserted changed facts (abuse, unsafe home, drug use) justifying suspension/decrease | Visitation should resume under the original graduated schedule; DHS findings exonerated Kevin on abuse allegations | Court: No modification was made beyond resuming the prior schedule; trial court did not clearly err — Kevin met burden to resume scheduled visitation given evidence and credibility findings |
| Whether increasing/resuming visitation was in the children’s best interest | Even if a change favored Kevin, increasing visitation was not in the children’s best interest given alleged harms and behaviors | Resumption of original schedule is consistent with children’s best interest; DHS unsubstantiated findings and credibility determinations support resumption | Court: Trial court considered best-interest factors, credited non-substantiation and witness credibility, and did not abuse discretion; affirmed |
| Whether extra weekend visits (Dec 2012–May 2013) required review | Those extra visits were improper or unsafe and should be reversed | Extra weekends already ordered and implemented; not a live controversy | Court: Issue moot because extra visits had already occurred; no exception to mootness applied |
Key Cases Cited
- Brown v. Brown, 387 S.W.3d 159 (Ark. 2012) (standard of review and requirements for modification of visitation)
- Baber v. Baber, 378 S.W.3d 699 (Ark. 2011) (factors and deference in domestic-relations review)
- Terry v. White, 288 S.W.3d 199 (Ark. 2008) (mootness doctrine and exceptions)
- Magness v. McEntire, 808 S.W.2d 783 (Ark. 1991) (judgment construction and determining court intent)