This сhild-custody appeal raises two issues. The first issue is whether the trial court erred in determining that a material change in circumstances occurred authorizing it to revisit the issue of child custody. The second is whether the trial court erred in determining that a joint-custody arrangement was in the best interest of the parties’ minor children. Because the record does not support the initial-material-change-of-circumstances finding, we do not аddress the secondary question of joint custody. This appeal also contains a cross appeal alleging that the trial court erred in its refusal to find appellant in contempt of court. We hold that the triаl court did not abuse its discretion and affirm.
Appellant Paula Vanderpool Byrd and appellee Clifford Vanderpool were married in 1988. They were granted an absolute divorce by the Circuit Court of Benton County, Arkansаs, on September 22, 2004. The divorce decree was filed on October 12, 2004. Appellant was granted primary custody of the parties’ two minor children.
On June 6, 2005, appellant filed a petition for contempt and modification of child support. Specifically, appellant requested that the trial court increase appellee’s child-support payments and hold him in contempt for failure to make certain payments required by the decree, including payments for health and dental insurance premiums for the children. Appellee denied the allegation and filed a counter petition for contempt, alleging that appеllant violated the terms of the divorce decree by making derogatory comments about him in front of the children.
The court heard the parties’ respective petitions on September 22, 2005. It granted appellant’s petition for an increase in child support. The court also found both parties in willful contempt — appellant for making derogatory statements about ap-pellee in the presence of the childrеn and appellee for failing to pay insurance premiums. A review and sentencing hearing was set for November 7, 2005. After the hearing on November 7 (and by order entered November 9), the court directed each to serve specified weekends in the Benton County Jail. The court also ordered the parties to communicate by telephone every Monday at 9:00 p.m.
On July 31, 2006, appellee filed a petition for contempt аnd for modification of custody, alleging that appellant had violated the court’s November 9, 2005, order by continuing to make derogatory comments about him in front of the children and failing to “participate apрropriately” in the parties’ mandated telephone calls. Appel-lee claimed that this conduct constituted a material change in circumstances and asked the court to award him primary custody of the minor children. Appellant denied those allegations and further denied that appellee should be awarded custody. Appellant also filed a counterclaim for contempt and modification, asserting that appellee failed to communicate with her and made derogatory remarks about her in the presence of the children.
The parties’ claims were heard on March 7, 2007. The trial court found that there had been a material change in circumstances and by order entered July 31, 2007, ruled that the parties should have joint custody of the children. The order set forth a series of rules and procedures for the parties tо follow regarding visitation and communication that would minimize the length and number of contacts the parties would have with each other, especially in the presence of the children. The court also ordered counseling for both the children and the parties. It declined to hold either party in contempt, but warned that — based on the parties’ history in this case — any future willful violations
On July 31, 2007, appellee filed a motion for reconsideration wherein he asked the court to amend its initial order to address certain issues that had not been previously resolved. The court entered an аmended order on August 30, 2007, and it is from that amended order that appellant appeals and appellee cross appeals.
Our supreme court has noted that “the primary consideration in child-custody сases is the welfare and best interest of the children; all other considerations are secondary.” Hamilton v. Barrett,
First we address the court’s changеd-cireumstances finding. It is essential that a material change in circumstances affecting the best interests of a child must be shown before a court may modify an order regarding child custody. Thompson v. Thompson,
The Court finds from the testimony, the credibility of the witnesses, the exhibits and other matters considered by the Court, that it appears that Susan Mon-son [the children’s counselor] and this Court are concerned about the impact the two parents’ behavior is having on the minor children, Joshua Vanderpool and Ethan Vanderpool, and are concerned enough to want to do something about it. However, the Court is concerned that both parents are more concerned with harboring their anger and resentment toward the othеr parent and seizing every opportunity to point out the other’s faults than with how sad [sic] and the impact they are having on the minor children.
Because the trial judge in this case did not make specific findings of fact to support her conclusion that a material change in circumstances had occurred, we are required to review the evidence in the record regarding allegedly changed circumstances de novo. Hamilton v. Barrett,
After conducting a de novo review of the record, we conclude that as a matter of law the trial court’s changed circumstances finding cannot stand. First, according to both the children’s counselor and attorney ad litem, the children of this turbulent couple have escaped from their parents’ child-like gamesmanship relatively unscathed. The professionals both noted that it is the parents, not the children, who аre in need of assistance and counseling. Second, the specific incidents that appellee argues support a changed circumstance are trivial, at best. The highlights include: 1) an alleged “stomping arоund” and “ranting and raving” about missing coats following an exchange of custody; 2) a disagreement about which of the two bags of laundry that the children brought home from a ski trip were clean versus dirty; 3) the appropriateness of attending a Super Bowl party with the children in tow; 4) a shoulder slap, followed by a “thank you,”
Appellee seems tо concede that any of these “incidents,” taken separately would not justify changed circumstances, but he contends that “when taken as a whole, the evidence supports [the] conclusion that appellant was not fostering his relationship with the children.” Appellee then directs this court’s attention to Sharp v. Keeler,
In this ease, we are convinсed that the scattering of petty complaints does not amount to a “failure to foster” of a significant degree to support a finding of changed circumstances. However, we would be remiss if we failed to notе that it is apparent from the final order that the trial court made a valiant effort to navigate a tumultuous situation with a creative solution that would best serve the needs of the parties’ children. Unfortunately, because the solution was premised on a clearly erroneous foundation, we are forced to order reversal. Further, because we conclude as a matter of law that no changed circumstances еxist, there is no need to examine the merit (or lack thereof as the case may be) of the trial court’s joint-custody award.
Finally, we turn our attention to the cross appeal challenging the trial court’s refusal tо find appellant in contempt of court. We review a trial court’s refusal to punish an alleged contemnor using an abuse-of-discretion standard. Page v. Anderson,
Reversed on direct appeal; affirmed on cross appeal.