595 S.W.3d 15
Ark. Ct. App.2020Background
- Parties divorced in 2014; they share two children (daughter, 15; son, 9). The divorce decree awarded joint custody on a three-day/two-day/two-day rotating schedule.
- Stacy (appellant) sought a new alternating full-week joint schedule in May 2017; Kendra (appellee) moved for primary custody in July 2017, alleging material changes and that primary custody was in the children's best interest.
- Evidence at the August 2018 hearing included accusations of poor communication, name-calling via a custody website, a 100-foot no-contact order between the parties, and domestic incidents at Stacy’s home involving his new wife (police were called and an assault charge was at one point lodged then dismissed).
- The trial court found a material change in circumstances (Stacy’s remarriage creating instability, Stacy’s anger issues, and escalating discord between the parents) and awarded primary custody to Kendra while preserving weekend visitation for Stacy.
- The court also found each party in contempt of prior orders but imposed no sanctions; those contempt findings were not challenged on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a material change in circumstances occurred since the prior joint-custody order | Stacy: No material change; remarriage cannot be used as a basis; nothing affecting the children changed | Kendra: Yes; remarriage produced a tumultuous, unstable home (domestic incidents), plus escalating, uncivil communication between parents | Court: Affirmed trial court — material change found (remarriage-related instability, anger, and increased parental discord) |
| Whether custody should change to primary custody with Kendra (children's best interest) | Stacy: Joint custody is favored by statute; insufficient evidence children were harmed or that joint custody was untenable | Kendra: Instability at Stacy’s home and inability of parents to communicate civilly harm the children and weigh in favor of primary custody with mother | Court: Affirmed — best-interest finding for mother was supported; trial court properly awarded primary custody to Kendra and is owed deference |
Key Cases Cited
- Nichols v. Teer, 432 S.W.3d 151 (Ark. Ct. App. 2014) (two-step test for modifying custody: material change then best-interest analysis)
- Hoover v. Hoover, 498 S.W.3d 297 (Ark. Ct. App. 2016) (remarriage may be considered as a factor in change-of-circumstances analysis)
- Acklin v. Acklin, 521 S.W.3d 538 (Ark. Ct. App. 2017) (mutual ability to make decisions is crucial to the propriety of joint custody)
- Sharp v. Keeler, 256 S.W.3d 528 (Ark. Ct. App. 2007) (appellate courts defer to trial court’s assessment of witnesses and children’s best interest)
- Jones v. Jones, 931 S.W.3d 767 (Ark. 1996) (a party cannot rely on changed circumstances that he or she created to obtain modification)