565 S.W.3d 500
Ark. Ct. App.2018Background
- Parties divorced in 2015; Ashley awarded custody of three children (HC1, AC, HC2). PSA required Joshua to pay Ashley $12,500 (half of cashed retirement) within 90 days; Joshua also obligated to pay child support.
- Joshua petitioned to modify custody in 2016 alleging changed circumstances after Ashley moved and began new relationships; temporary orders adjusted visitation and required a paternity test for a fourth child (HC3) born after the divorce.
- Multiple hearings: children and parents testified about living arrangements, school performance, supervision (four-wheeler accident), lice, and parental relationships; evidence indicated Ashley moved twice and was involved with a married man (Kelly) and had asked children to conceal that relationship.
- Circuit court found a material change in circumstances (including Ashley’s “openly immoral conduct” in presence of children), changed custody to Joshua, and imposed safety/visitation conditions (helmets, supervision, prohibited driver).
- Court found Joshua in contempt for failing to pay the $12,500 from the PSA and in arrears on child support; court ordered an offset: Ashley would pay half of the guideline child-support amount and the other half would be credited against Joshua’s arrearage and the PSA amount until paid.
- Ashley appealed, arguing the custody change was erroneous and that the court lacked authority to permit offsets/modification of arrearages and the PSA-based lump-sum obligation.
Issues
| Issue | Plaintiff's Argument (Ashley) | Defendant's Argument (Joshua) | Held |
|---|---|---|---|
| Whether there was a material change in circumstances warranting custody modification | No; children’s academics not worse, Ashley primary caretaker, immoral conduct (dating a married man) not a new or decisive change; separation of siblings harms best interest | Yes; parties’ new homes/families, children uprooted, Ashley’s dishonest concealment and allowing a married man to stay overnight constituted material change and harmed children’s stability | Custody change to father affirmed: court’s factual findings not clearly erroneous and change served children’s best interest |
| Whether children’s preferences and sibling separation barred change | Children’s preferences and separation argued to favor mother or prevent separation | Joshua argued stability, supervision, and better environment with him outweighed preferences | Court permissively considered children’s wishes; best-interest analysis favored father despite mixed preferences |
| Whether circuit court properly held Joshua in contempt for nonpayment of PSA retirement share | Ashley: court should require lump-sum payment and reduce arrearages to judgment; court had no authority to permit offset or modify prior arrearages | Joshua acknowledged nonpayment but argued setoff/credit approach appropriate in fashioning relief | Court found contempt but allowed offset: Ashley’s future child-support obligation partially credited against Joshua’s arrearage and PSA amount; Ashley failed to preserve objections to setoff on appeal, so order affirmed |
| Whether court could modify/offset child-support arrearages and lump-sum PSA obligation | Ashley: child-support arrearages are judgments when due and cannot be modified; PSA required lump-sum payment—court lacked authority to convert to installments | Joshua: offsetting arrears against future support/payments was permissible relief to effectuate justice | Ashley did not object at trial, so appellate review is forfeited; offset/partial-credit arrangement upheld |
Key Cases Cited
- Hodge v. Hodge, 97 Ark. App. 217 (discussing deference to trial court credibility findings in custody appeals)
- Taylor v. Taylor, 345 Ark. 300 (best interest of the child is the polestar in custody cases)
- Buskirk v. Buskirk, 559 S.W.3d 285 (standard for custody-modification: material change then best-interest analysis)
- Alphin v. Alphin, 219 S.W.3d 160 (immoral conduct and cohabitation considered in modification analysis)
- Tiner v. Tiner, 422 S.W.3d 178 (limitations on modifying property-settlement obligations and lump-sum orders)