McNutt v. Yates, 2013 Ark. 427

Background

Parties divorced September 9, 2011; joint legal custody awarded, McNutt had primary physical custody; Yates ordered to pay $152/week child support.
Both parties filed motions alleging the other violated the decree; Yates later moved (March 2, 2012) to modify custody to him, alleging McNutt interfered with his relationship with the children and had the children in an unaccredited private school and an associated church.
McNutt’s counsel moved to withdraw March 16, 2012; the court granted withdrawal. McNutt filed a pro se continuance request April 11, 2012 (one day before trial); the court denied it and proceeded to hearing April 12.
The circuit court found a material change in circumstances (noting changes in school/church, reduced extracurricular activities, and negative change in the children’s demeanor), awarded custody to Yates, ordered first refusal for childcare, and set child support at $301 biweekly while retroactively modifying past support to April 2011.
On appeal the court of appeals partly affirmed and partly reversed; the Arkansas Supreme Court granted review and assessed three issues: withdrawal/continuance, material change/best interest, and retroactive child-support modification.

Issues

Issue	McNutt's Argument	Yates's Argument	Held
Did court abuse discretion by allowing counsel to withdraw and denying continuance?	Withdrawal lacked factual support and court should have inquired; denial prejudiced her because she was not versed in law.	McNutt waived challenge to withdrawal by not objecting; she had 27 days to obtain counsel and filed for continuance one day before trial.	Withdrawal challenge not preserved; denial of continuance not an abuse of discretion (no showing of prejudice).
Did a material change in circumstances occur to justify custody modification?	No; school, church, and extracurricular facts existed before the divorce and demeanor claims insufficient.	Yes; children's demeanor deteriorated post-divorce and McNutt interfered with father–child relationship; changes harmed children.	Court’s de novo review found sufficient evidence (demeanor plus other evidence) to support a material change; custody change to Yates affirmed.
Was change of custody in children’s best interest?	Argued the circuit court erred in weighing evidence; custody should remain with McNutt.	Change was warranted given stability, moral fitness, and observed harm under McNutt’s care.	Court found, giving deference to circuit court observations, that awarding custody to Yates was not clearly erroneous and was in children’s best interest.
Was retroactive modification of child support to April 2011 permissible?	Court erred in retroactively modifying support beyond the filing date.	Yates conceded error on retroactive modification for purposes of appeal.	Reversed and remanded: retroactive modification may only run from the date the modification petition was filed absent fraud; circuit court’s retroactive April 2011 modification was erroneous.

Key Cases Cited

Payne v. Arkansas Department of Human Services, 2013 Ark. 284 (Ark. 2013) (treatment of appeals after grant of review)
Henry v. Eberhard, 309 Ark. 336 (1992) (timely objection to circuit-court action is required to preserve error)
Jacobs v. Yates, 342 Ark. 243 (2000) (standard for reviewing continuance rulings)
Hamilton v. Barrett, 337 Ark. 460 (1999) (deference to circuit court on credibility in custody cases)
Stehle v. Zimmerebner, 375 Ark. 446 (2009) (de novo review framework and limitation of evidence to post-decree changes)
Campbell v. Campbell, 336 Ark. 379 (1999) (appellate review requires definite and firm conviction before reversing factual findings)
Alphin v. Alphin, 364 Ark. 332 (2005) (best-interest standard and stricter standards for modifying custody)
Guffey v. Counts, 2009 Ark. 410 (2009) (retroactive modification of court-ordered support limited to petition date absent fraud)
Orantes v. Orantes, 2011 Ark. 159 (2011) (circumstances known at time of decree generally cannot later support modification)
Brown v. Brown, 2012 Ark. 89 (2012) (discussion of de novo review in custody context)
Jones v. Jones, 326 Ark. 481 (1996) (known circumstances at custody agreement cannot later serve as basis for modification)
Hudson v. Kyle, 365 Ark. 341 (2006) (appellate court must give due regard to trial court’s opportunity to judge witness credibility)