Evans v. McKinney
2014 Ark. App. 440
| Ark. Ct. App. | 2014Background
- Divorce decree (Missouri, Feb 2011) awarded primary custody of son H.M. to Angie Evans; Devin McKinney granted liberal visitation and reasonable telephone access (no calls after 10:00 p.m.).
- Missouri modified visitation in Nov 2011 (denying custody change) but ordered every-other-weekend, alternating holidays, weekly Wednesdays, and two summer months; telephone access requirement remained.
- Devin filed in Benton County (Oct 2012) for contempt and change of custody, alleging Angie repeatedly denied visitation and phone contact and intentionally alienated H.M. from him.
- Psychological evaluations and attorney ad litem report were admitted; both parents found capable of providing stable homes, but concerns about Angie’s need for medication compliance and fostering the child’s relationship with Devin; the ad litem recommended custody to Devin.
- Trial court found material change in circumstances (parental alienation, remarriages, Devin’s relocation) and that exchanges traumatized the child; it changed custody to Devin and ordered child support. Angie appealed.
Issues
| Issue | Plaintiff's Argument (Evans) | Defendant's Argument (McKinney) | Held |
|---|---|---|---|
| Whether a material change in circumstances occurred to justify custody modification | No; visitation denials were exaggerated or improved, Devin sometimes chose not to exercise visits, and incidents were isolated | Yes; persistent alienation (denied phone calls, disparaging remarks, difficult exchanges, excluding Devin from school forms, hospital restrictions) amounted to material change | Trial court did not clearly err — material change found (alienation, intensified visitation problems, remarriages, relocation) |
| Whether changing custody was in child’s best interest | Custody with mother remained appropriate; Angie argued court misweighed evidence and credibility | Child’s welfare favored placement with father due to harm at exchanges and mother’s failure to foster relationship | Court’s best-interest finding not clearly erroneous; deference to trial judge’s credibility determinations affirmed |
| Whether court was required to first use contempt powers or warnings before changing custody | Court should have used contempt/warnings before the drastic remedy of custody change (per Carter) | No mandatory requirement to use contempt first; court may change custody when justified | No reversible error; court not required to hold contempt before changing custody |
Key Cases Cited
- Carver v. May, 81 Ark. App. 292, 101 S.W.3d 256 (Ark. Ct. App. 2003) (parental alienation is an important factor in custody modifications)
- Byrd v. Vanderpool, 104 Ark. App. 239, 290 S.W.3d 610 (Ark. Ct. App. 2009) (isolated petty complaints do not amount to significant failure to foster)
- Delgado v. Delgado, 389 S.W.3d 52 (Ark. Ct. App. 2012) (trial court's credibility determinations in custody cases are afforded great weight)
- Boudreau v. Pierce, 384 S.W.3d 664 (Ark. Ct. App. 2011) (deference to trial court's observations and credibility in custody matters)
- Carter v. Carter, 19 Ark. App. 242, 719 S.W.2d 704 (Ark. Ct. App. 1986) (contempt powers should ordinarily be used before changing custody, but not a mandatory prerequisite)
- Turner v. Benson, 59 Ark. App. 108, 953 S.W.2d 596 (Ark. Ct. App. 1997) (a healthy relationship with both parents is essential and alienation is a relevant factor)