480 S.W.3d 197
Ark. Ct. App.2016Background
- Lloyd Smith and Alicia Neumann divorced in 2008; original decree gave Smith sole custody of twins (b. 2001), ordered sale of marital residence only if Smith ceased living there with the children, and split sale proceeds equally.
- In 2009 the parties entered a settlement/modification: joint custody effective Feb. 1, 2009; reduced child support from Neumann; provision that if Smith moved to Florida Neumann would become sole custodian and the house would be listed for sale upon his physical relocation.
- Smith never moved to Florida; beginning ~2012–13 the twins used Neumann’s Texas address for school and Neumann’s parenting time expanded beyond the standard visitation schedule.
- Neumann filed a 2014 motion to modify custody and a petition to force sale of the marital residence; at the Sept. 11, 2014 hearing the twins testified they wanted to live with their mother and the judge interviewed them in chambers (with counsel’s prior acknowledgment).
- The court found material change, concluded the children needed stability, awarded “true joint custody” (seven days on/seven days off), denied forced sale of the house (finding Smith had not abandoned it), and left child-support unresolved pending income review but ultimately ended Neumann’s child-support obligation effective Sept. 11, 2014.
- Neumann’s post-judgment motion for reconsideration raised new incidents (alleged physical contact between brothers, access to clothes, threats); the court denied reconsideration but entered a temporary order barring roughhousing between O.S. and his half-brother while criminal proceedings were pending.
Issues
| Issue | Neumann's Argument | Smith's Argument | Held |
|---|---|---|---|
| Whether in-chambers interview of children was improper | Judge improperly initiated and failed to record a private conference that pressured children | Conference was requested by Neumann and parties waived objection; trial judge may question witnesses | No abuse of discretion; conference was requested and not objected to, and statement of evidence not part of record on appeal |
| Whether court erred in awarding true joint custody instead of sole custody to Neumann | Neumann was primary caregiver for years and children preferred mother; court should award sole or primary custody to her | Parties had expanded visitation voluntarily; court found children needed stability and parents could cooperate | No clear error; award of true joint custody affirmed after de novo review with deference to trial judge’s credibility findings |
| Whether court should have ordered sale of the marital residence | Settlement required sale when Smith ceased living there with children; children lived mostly with Neumann so sale should be ordered | Smith never ceased living there with children; condition precedent to sale not satisfied | Denial of forced sale affirmed; court found Smith had not abandoned the residence |
| Child-support order (whether Smith should pay support) | Neumann sought support consistent with Administrative Order No. 10 when she became primary custodian | Smith sought an increase in Neumann’s support or, alternatively, equal custody with no support | No abuse; court adopted parties’ alternate request for no child support under equal custody, so absence of support order is not appealable by Neumann |
| Whether trial judge’s conduct showed judicial bias | Judge’s questioning, in-chambers remarks, and alleged pressure on children demonstrated bias requiring recusal/reversal | Neumann failed to timely object or move to recuse; many complained-of remarks were not preserved | Issue waived for appeal because Neumann did not timely seek recusal or object; no reversible bias found |
| Whether reconsideration hearing required modification of visitation/times based on post-hearing events | New emergency events (assault allegations, threats, clothing-access conflicts) warranted modification of shared schedule | The court considered emergency aspects and issued temporary protections; broader modification requires formal motion with discovery | Denial of reconsideration affirmed except for temporary emergency order to prevent roughhousing pending criminal proceedings |
Key Cases Cited
- Dorrell v. Dorrell, 441 S.W.3d 925 (Ark. Ct. App.) (welfare and best interest of children is primary consideration)
- Taylor v. Taylor, 110 S.W.3d 731 (Ark.) (de novo review of custody with deference to trial judge; reverse only if clearly erroneous)
- Sharp v. Keeler, 256 S.W.3d 528 (Ark. Ct. App.) (trial judge’s superior position to assess witness credibility in custody cases)
- Baker v. Baker, 429 S.W.3d 389 (Ark. Ct. App.) (party who receives requested relief cannot complain on appeal)
- Grunwald v. McCall, 446 S.W.3d 217 (Ark. Ct. App.) (requirement to timely move for recusal to preserve bias claim)
- Schwarz v. Moody, 928 S.W.2d 800 (Ark. Ct. App.) (standard for finding significant change in circumstances for custody modification)
- Mattocks v. Mattocks, 986 S.W.2d 890 (Ark. Ct. App.) (requirements for verbatim record and waiver)