642 S.W.3d 235
Ark. Ct. App.2022Background
- Parties divorced in 2011; Arizona court awarded primary custody to Evans in 2016 and Arkansas circuit court later adopted that Arizona order. The parenting plan required frequent Skype calls, mutual access to educational/medical information via releases, and use of the Our Family Wizard app for communications.
- Communication between parents deteriorated; multiple motions and orders followed in Arkansas modifying the Arizona plan and directing use of Our Family Wizard.
- Carpenter filed contempt and custody-change petitions alleging Evans failed to provide valid releases, interfered with scheduled Skype visits, and did not pay court-ordered fees; hearings were held in 2020.
- The circuit court (March 23 and December 30, 2020 orders) found Evans in contempt for failing to provide releases, for interfering with Skype calls, and for failing to pay expenses and attorney fees; the court granted primary custody to Carpenter on December 30, 2020.
- Evans appealed the custody modification, contempt findings, and the circuit court’s denial of his venue-transfer motion under Ark. Code § 9-12-320.
Issues
| Issue | Plaintiff's Argument (Evans) | Defendant's Argument (Carpenter) | Held |
|---|---|---|---|
| Denial of motion to transfer venue under Ark. Code § 9-12-320 | Statute creates an initial presumption favoring transfer to county where parent resides, so transfer to Garland County was warranted | Court has discretion; Arkansas court had familiarity with the case, transfer would delay resolution (COVID), and venue denial was appropriate | Presumption argument not preserved on appeal; trial court’s discretionary denial affirmed |
| Custody modification: whether a material change in circumstances justified transferring primary custody to Carpenter | Violations and facts did not constitute a material change affecting children’s welfare; custody change was error | Repeated order violations (Skype, releases), plus household discord and abuse incidents, materially affected children’s welfare and supported change | Circuit court’s finding of material change and award of custody to Carpenter affirmed |
| Contempt findings for failing to provide releases, interfering with Skype sessions, and not paying ordered fees | Orders were not unclear and alleged violations were not willful | Orders were definite and clear; Evans willfully disobeyed (missed/impeded Skype, failed to provide valid releases timely, failed to pay) | Contempt findings were supported by substantial evidence and are affirmed |
Key Cases Cited
- Harris v. Harris, 379 S.W.3d 8 (Ark. App. 2012) (the children’s welfare and best interest is the primary consideration in custody decisions)
- Baber v. Baber, 378 S.W.3d 699 (Ark. 2012) (court need not use specific "magic words" like "best interest" when it is clear the court considered them)
- Grindstaff v. Strickland, 535 S.W.3d 661 (Ark. App. 2017) (repeated violations of court orders that negatively affect children can support custody change)
- Doss v. Miller, 377 S.W.3d 348 (Ark. App. 2010) (contempt requires a definite order and substantial-evidence support)
- Holifield v. Mullenax Fin. & Tax Advisory Grp., Inc., 307 S.W.3d 608 (Ark. App. 2009) (contempt requires willful disobedience of a valid court order)
- Miller v. Arkansas Department of Finance & Administration, 401 S.W.3d 466 (Ark. 2012) (issues must be raised and ruled on in the trial court to be preserved for appeal)
- Johnson v. Arledge, 527 S.W.2d 917 (Ark. 1975) (domestic discord can constitute a material change affecting children’s welfare)