Vest v. Vest
2017 Ark. App. 530
| Ark. Ct. App. | 2017Background
- Alicia (Vest) and Cory Vest divorced in 2008; Alicia was awarded custody of two children, K.V. (then 5) and C.V. (then 3). Cory had earlier alcohol problems but later achieved sobriety and increased visitation.
- Cory filed a motion to modify custody on March 11, 2015; after a hearing the trial court transferred custody to Cory by order entered August 18, 2016 (amended Sept. 19, 2016). Alicia appealed.
- K.V., diagnosed with type 1 diabetes after the divorce, testified she preferred living with her father because he helps calmly manage her diabetes and she feels less stressed there; she would have to change schools if custody changed.
- Alicia, a long‑time teacher and remarried, denied panicking about K.V.’s diabetes and argued K.V. had been coached to prefer her father; Alicia had moved multiple times since the divorce (causing school changes).
- The trial court found material changes since 2008 (passage of time, parental remarriages, Cory’s sobriety and increased involvement, K.V.’s diabetes impact, Alicia’s hostility toward Cory) and concluded a custody change was in the children’s best interests.
Issues
| Issue | Plaintiff's Argument (Alicia) | Defendant's Argument (Vest) | Held |
|---|---|---|---|
| Whether a material change in circumstances occurred since the 2008 custody decree | No; custody was last meaningfully litigated recently and no new material, adverse change existed | Yes; multiple changes (passage of time, remarriages, Cory’s sobriety and involvement, K.V.’s diabetes effects) are material | Court: Material changes occurred since 2008; not limited by intervening visitation orders |
| Whether K.V.’s diabetes (diagnosed five years earlier) constitutes a material change | No; diagnosis was remote and both parents were trained; Alicia had managed care for years | Yes; diabetes required ongoing lifestyle changes and daily monitoring and affected child’s welfare and preferences | Court: Diabetes and its impact on K.V. supported finding of material change |
| Whether K.V.’s preference alone can support custody change | No; child preference alone insufficient and may have been coached/bribed | Preference is relevant and given weight along with other evidence showing better management and child comfort with father | Court: K.V.’s clear, mature preference was a significant factor among others in best‑interest decision |
| Whether change of custody is in the children’s best interests | No; Alicia’s home is stable, children do well academically, and moves are defensible | Yes; father provides calmer diabetes management, fosters parental relationships, children happier there; C.V. wants to stay with sister | Court: Change to Cory was in children’s best interests; trial court’s findings not clearly erroneous |
Key Cases Cited
- Earl v. Earl, 476 S.W.3d 206 (Ark. Ct. App. 2015) (best interest is primary consideration; material‐change threshold for modification)
- Montez v. Montez, 518 S.W.3d 751 (Ark. Ct. App. 2017) (appellate review de novo but defer to trial court’s superior position in custody matters)
- Acre v. Tullis, 520 S.W.3d 316 (Ark. Ct. App. 2017) (trial court’s advantage in observing witnesses carries special weight in child cases)
- Harral v. McGaha, 427 S.W.3d 769 (Ark. Ct. App. 2013) (improvement in a noncustodial parent’s condition is relevant though not dispositive alone)
- Valentine v. Valentine, 377 S.W.3d 387 (Ark. Ct. App. 2010) (adverse impact on a child can render a circumstance material)
- Westin v. Hays, 513 S.W.3d 900 (Ark. Ct. App. 2017) (factors for best interest include psychological relationship, stability, past conduct, and reasonable child preference)