Emis v. Emis
2017 Ark. App. 372
| Ark. Ct. App. | 2017Background
- Robin and Keith Emis divorced in 2011; Robin was originally awarded full legal and physical custody of twin boys.
- In September 2014 the parties executed an agreed order (drafted by Robin, an Arkansas attorney) stating they had "joint physical custody" but that legal custody was "vested in [Robin]," while still referring to "visitation" and awarding substantial child support.
- The parties later separated; both sought primary custody and Robin sought to relocate to Florida.
- A three-day bench trial was held; the circuit court concluded the 2014 agreed order was ambiguous and treated it as creating joint custody, found a material change of circumstances, and awarded primary custody to Keith; Robin’s relocation request was denied.
- Posttrial, the court denied Robin’s recusal motion, struck an affidavit, and awarded attorney’s fees to opposing counsel and the attorney ad litem; Robin appealed those rulings as well.
Issues
| Issue | Plaintiff's Argument (Robin) | Defendant's Argument (Keith) | Held |
|---|---|---|---|
| Characterization of Sept. 2014 order (ambiguity / joint custody) | The order unambiguously left legal custody with Robin and was not a joint-custody grant. | The order was ambiguous in language and practice and should be treated as establishing joint custody. | Court: order ambiguous; extrinsic evidence supports treating it as joint custody. |
| Material change of circumstances to permit custody modification | No material change existed; Robin claimed persistent hostility arose from Keith’s actions, but insisted she retained sole legal custody. | Parties’ post-order romantic separation and ensuing hostility made cooperation impossible, constituting a material change. | Court: there was a material change (inability to co-parent); modification threshold met. |
| Best-interest determination awarding primary custody to Keith | Robin emphasized her role as primary caretaker since birth and argued Keith lacked day-to-day involvement. | Keith presented parenting philosophy, involvement, and better stability; ad litem recommended Keith. | Court: after deference to trial factfinding and credibility, awarding custody to Keith was not clearly erroneous. |
| Posttrial procedural rulings (recusal, striking affidavit, attorney’s fees, vacating ad litem) | Judge was biased; recusal should have been granted or led to relief; challenges to affidavit strike, fee awards, and ad litem appointment. | Posttrial motions were properly decided; Robin failed to preserve or adequately brief many issues on appeal. | Court: recusal claim moot as Robin did not seek vacatur of custody; other posttrial claims inadequately briefed or procedurally barred, so not reached. |
Key Cases Cited
- Nichols v. Teer, 432 S.W.3d 151 (Ark. Ct. App.) (material-change threshold required before custody modification)
- Singletary v. Singletary, 431 S.W.3d 234 (Ark. 2013) (contract interpretation: give words their plain meaning and consider entire context)
- Rockefeller v. Rockefeller, 980 S.W.2d 255 (Ark. 1998) (when contract is ambiguous, courts may consider extrinsic evidence of intent)
- Delgado v. Delgado, 389 S.W.3d 52 (Ark. Ct. App.) (appellate court may affirm on any correct theory even if trial court cited a wrong reason)
- Riddick v. Harris, 501 S.W.3d 859 (Ark. Ct. App.) (give deference to trial court’s credibility determinations in custody cases)