Wymer v. Hutto
2014 Ark. App. 497
Ark. Ct. App.2014Background
- Wymer appeals a Pulaski County Circuit Court custody modification order awarding primary physical custody of L.W. to Hutto.
- Wymer and Hutto were divorced in December 2009 with joint physical and legal custody and an equal-time schedule.
- Relocation to Shirley, Arkansas by Hutto (with her new husband and stepchildren) was identified as a material change in circumstances.
- Hutto remarried and moved to Shirley, but kept a Little Rock apartment for about two years to maintain joint-custody continuity.
- In February 2013, Hutto petitioned to modify custody to relocate with the children; Wymer agreed there was a material change but sought primary custody for L.W., with C.W. remaining with Wymer for her senior year.
- The trial court found a material change in circumstances and, after trial, awarded Hutto primary custody of L.W. with liberal visitation to Wymer; the court also noted both parents are loving and capable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court improperly limited Wymer's evidence. | Wymer argues the case is a relocation case and excludes relevant best-interest evidence. | Wymer did not proffer the excluded evidence for appellate review. | No reversible error; failure to proffer testimony precludes review. |
| Whether relocation with remarriage supports a change in custody as in the child’s best interest. | Wymer contends best interests favor keeping custody with him. | Hutto's relocation and blending of families support best-interest for L.W. with Hutto. | The court did not commit clear error; relocation supported by best-interest finding. |
| What standard governs appellate review of child-custody findings? | Wymer asserts standard should be de novo review of all factual findings. | Appellate review is de novo but with deference to the circuit court’s credibility determinations. | Review is de novo but deferential to the circuit court; findings not clearly against the preponderance. |
| Did the trial court properly weigh the best interests of L.W. in light of both parents’ positions? | Wymer argues better interests favor L.W. remaining with him. | Hutto’s move provided enhanced opportunities and family integration for L.W. | No clear error; custody in best interests of L.W. with Hutto. |
Key Cases Cited
- Singletary v. Singletary, 2013 Ark. 506 (Ark. 2013) (material change and best interests framework for custody)
- Anderson v. Thomas, 2013 Ark. App. 653 (Ark. App. 2013) (primary consideration is the welfare and best interest of the children)
- Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d 520 (Ark. 1999) (deference to circuit court in custody determinations)
- Swadley v. Krugler, 67 Ark. App. 297, 999 S.W.2d 209 (Ark. App. 1999) (evidence exclusion review requires a proffer or apparent substance)