*1 58 stаtutes, Ark. R. Evid. it is admissible. 331 2017 Ark. 201, 9, State, at
401; Holly 2017 v. Ark.. COOPER, Appellant Nathan 677, 520 S.W.3d v. photo has
This court held testimony are graphs helpful explain (Cooper), Shannon KALKWARF State, 2015 ordinarily Green v. admissible. 359, 200, 2, 202. Photo Ark. at 471 S.W.3d No. CV-17-298 if may they admissible assist graphs ways: following any of fact in trier Supreme Court Arkansas. (2) (1) issue; by shedding light some case; proving necessary element of the 30, Opinion 2017 Delivered: November 113testify (3) by enabling a witness to (4) effectively; by corroborating testimo (5) jurors enabling to better
ny; State, testimony. Evans v.
understand the 916, 240, 4, Ark. 464 918-
2015 at
The shells were relevant because evidence served corroborate testimony jury
officer’s and aided the
understanding testimony. The bases proposes objections
that Lee to the photo- shells
admission of the go
graphs types are the issues weight the credi- of the evidence and
bility present- than the witnesses rather question of law the court. See State, 17, 23, Ark.
Isbell v. 326 931 S.W.2d
74, (1996) State, Suggs (citing v. 322 (1995));
Ark. see also 907 S.W.2d State, at
Laswell (holding that minor uncer- chain proof
tainties are argued by
matters counsel and
weighed by jury, but do not ren- matter
der evidence inadmissible as a law). to offer a meritorious Lee failed objection any for an evi-
basis at
dence issue.
Lee did demonstrate error postconviction
trial court’s denial relief.
Accordingly, affirm.
Affirmed; motion moot.
LaCerra, Dickson, Roger, Hoover & PLLC, Rock, by: Little Lauren White Hoover, for appellant. Petty,
D. Paul Searcy, appellee. GOODSON, COURTNEY HUDSON Associate.Justice Cooper appeals Nathan County Pulaski Circuit Court’s order granting appellee pe- Shannon KalkwarPs tition to minor relocate with the reversal, appellant argues For December remarried in son. peti- on January she filed a applying circuit court erred custody. Appellee modification of relocation as set *3 accepted alleged her husband had Knyzewski, that a Hollandsworth v. in out fеllowship surgery in in Houston trauma (2003). We vacate it in that be B.C.’s best interest would appeals’ re opinion, the court and we of permitted to for to be relocate with her remand. verse and a response to the Appellant child. filed on parties July The were married 23, 2016, February asserting petition on July on 2006. At the time of their divorce decree, language of the despite that -son, they one minor B.C. had of parties joint had shared 5/31/09). (DOB a parties The executed not enti- B.C. that should be visitation, custody, and property- written to reloca- tled a presumption agreement incorporat- was settlement that Appellant that there had tion. admitted ed, into divоrce merged, but de- change a in circumstances been material B.C., custody of regard to relocate, cree. With appellee’s but caused desire to to agreement parties stated that were it B.C.’s he that was best interest denied legal custody” appel- but “joint that granted. to for the “primary ^physical custo- lee would |sOn 3, 2016, appellant mo- June filed a child, subject of the minor to rea- dy custody, tion for there alleging that of appellant. sonable liberal visitation” a circum- had been material to' agreement The define either failed entry since the divorce stances de- agreement provided further term. warranting cree of thе a modification cus- that would have visitation with arrangement visitation todial schedule. nights “a minimum of three out B.C. parties spent He that the equal asserted days being every seven with two that time he had with almost B.C. Holiday visitation alternated consecutive." Thus, daily contact he indi- child. parties year, each between both for cated in B.C.’s that was parties granted “two non-con- were to parents remain Little his visitation weeks of vacation dur- joint-custodial continue with the Rock and secutive. summer,” addition, enjoyed parent that the had the other He agreed requested to contact divorce. since the parties’ to reflect he decree be before or she modified overnight childcare practice, appellee’s petition, reloca- that a sought child from third care non-relative denied, joint-custody and that a agreement that party. The stated neither re- Appellee award a be entered. filed to remove the child party was allowed generally sponse appellant’s motion de- to express from the state written without allegations. nying the or- party or a court consent other authorizing, der removal. the. hearing A relocation-and-custody was pay month support a $470 July Appellee testified held $2,600. income monthly based on petition requesting that filed her she had Appellee required continue son because relocate coverage for husband, health insurance Kyle, Kalkwarf, maintain ac- her had new B.C., equally were di- cepted fellowship surgery and.the trauma noncpvered double, medical, dental, or-, any vide Houston that would him enable thodontic, $200,000 $400,000. Ap- prescription-drug expenses. salary his. from that, following pellee fellowship, tody approximately sixty percent B.C. - family possibility there was a the time. return to Rock. Little She testified Appellee had a indicated rental home had ..found a within good relationship to copar- came walking elementary school distance of аn enting, although there had. been few top as one was ranked ten instance, appellant issues. For not re- had public schools Texas. imbursed his half of B.C.’s practitioner nurse she expenses medical were covered taught College Nursing she had at the insurance, he never contributed *4 at the University of Medical Arkansas private-schqol B.C.’s Appellee tuition. fur- May 2016. She School stated that she , until. ther testified responsi- that she had been position had been a offered. similar for buying clothing ble B.C.’s and school higher salary with a and that she uniforms, although Houston that ap- she admitted pursue also to
would a able doctoral bought pellant had recently sets of several that, degree. although Appellee testified Appellee uniforms. appellant that stated Texas, family B.C. had no extended gone to rarely had B.C.’s medical appoint- Antonio, Kyle’s parents lived in San and specifically ments unless she requested relationship a close them. B.C. had with he accompany that them. Appellee also Kyle’s also that parents indicated Appellee testified that appellant very been had con- for college had started a fund B.C. and descending prior had and rude some of their communications, promised |4any to match future contribu- Appellee tions Kyle. made her and ad- ¡Appelleе that, despite testified her is- I majority B.C.’s mitted extended father, sues with >he appellant, good is a Arkansas, family including lived for very important to contin- B.C. sets of grandparents, with whom B.C. had to have pro- ue his life. appellant She very relationship. a close whereby appellant posed a schedule to come one weekend each month Houston Appellee that she testified was named pay-for B.C., to visit and she would herself in the physical custodian di- Rock fly B.C. to to one weekend Little parties’ vorce that decree and conduct also per month. that indicated - Appellee since then had consistent with been one appellant week with at could B.C. .have Although custody decree. appellee had Christmas weeks summer. and six nights appel- B.C. for four week while appel- would reduce She admitted nights lant custody had for three under 156 days year a to visitation lant’s from decree, appellee terms stated However, appellee testified B.C. arrangement had modified exceptional relation- Kyle also an have provide to 5-5-1-3 to more schedule ship B.C.’s best interest to and that is in stability during the school week. relocate with them. schedule, testified this revised very loving he has a eight days Kyle she still B.C. for custody of testified that had fourteen-day they partic- every period, relationship B.C. and out while together. appellant days. many six Accord- ipate had for Howev- activities er, Kyle, appellee presents several appellant stated that had the relocation B.C., advantages such better asked he keep her B.C. sports custody. According opportunities school more supposed to that, kept Kyle testified the calendar since June and other af- she had hobbies. fellowship, he two-year, she ter his would most indicated cus- likely trauma-surgeon appellee. if B.C. were to relocate He position choose a Rock, Antonio, trying that he custo- Little Houston. take San Instead, away from dy appellee. he wanted Thompson, appel- Jeannie mother deny appellee’s request the circuit court to ap- girlfriend, lant’s testified on behalf and for to relocate with B.C. Thompson stated that pellant. custody arrange- their current continue Jessica, dating daughter, her had been Appellant ment. further stated that B.C. con- year one that she than parents has a close with his Ac- grandchildren. B.C. of her siders uncle, aunt, his and cousins who and with cording Thompson, appellant very Although appellant live in Little Rock. ad- supportive of B.C. and affectionate that he had become more involved mitted top Thompson him at of his “puts list.” filed father since thir- further stated that B.C. Jessica’s relocate, he that this because teen-year-old daughter each other. adore opportunities he wanted maximize well testified B.C. does the circuit ques- with B.C. When with the current 5-5-1-3 visitation *5 appellant to how it tioned would affect that, schedule. Appellant indicated |7appellee’s peti- if the denied B.C. court decree, the terms of the divorce he relocate, appellant tion to testified that only days with allowed consecutive two that appellee had she not indicated would week, typically B.C. each so he had the choose to move in that event. child each weekend оne additional 16and cross-examination, appellant On However, stated night during the week. parties agreed in had that divorce parties stated altered the visita- joint legal custody, decree with tion after B.C. school schedule started being primary appellee physical custo- provide consistency. Appellant testi- more Appellant dian. testified that he under- good relationship that with he has fied joint legal custody stood to mean though that that he appellee, even he he admitted rights to legal appel- had the same that B.C. as things regretted said he had some He lee. indicated that he was named that had “nickel and dimed” her that, primary physical custodian in the right de- He past. especially custody for divorce, cree because she had one he after had day Appellant week than he did. further open policy” spent “an door and had often appellee’s having that However, ap- primary testified holidays together with B.C. that physical custody meant if there was a pellant their communication stated parties disagreement could appel- with each other had decreased since settle, then she have the last vote. petition lee filed her relocate. had However, he not in- stated did Appellant that he next worked clude the issue оf relocation. door B.C.’s school this afforded and that Following hearing, opportunities him his son. the circuit see additional 4, 2016, August grant calendar in he an on He introduced a had entered order B.C., ing appellee’s modify custody days marked that he had seen calculations, and, B.C. according appellant’s denying relocate with joint spent appellant’s custody. he on 60%- motion for time with son The August primary 65% of the 2014 and between stated that issues May parties 2016. testified that he to be was whether the resolved being joint custody, able to shared very concerned about such the reloca request B.C. type by Single maintain this would be controlled tary v. 2013 Ark. Agreement 28. The provides further 234, or one of parties pay Defendant will child support of or primary custody had sole per was enti month to the Plaintiff. $470.00 tled to the forth in set Hol 29. The Defendant testified that landsworth, supra. The circuit court made phrase “primary physical custody” following findings in its order: meant the Plaintiff say had the final such as matters medical The decisions. above, 23. As Agree- noted Defendant also testified that 'Plaintiff ment primary states “wife will have primary physical was the custodian be- child, physical custody of the minor sub- cause she day per had B.C. one more
ject to the reasonable and liberal visita-
week than he did.
tion with husband as set out below in
30. The Plaintiff
testified
she en-
Agreement.
The
will share
private
B.C. in
school
rolled
and bore
joint,
legal custody.”
Agreement
same,
bought
the cost of the
that she
fails, however, to
meaning
define the
clothes,
majority of B.C.’s
paid for B.C.’s
physical custody.
haircuts,
took
B.C. to all of his
Singletary
and Jones
appointments.
doctor’s
courts were
confronted
similar situ-
Agreement
Given
its entire-
language
ations where
ambiguous.
intent,
ty, the
of the parties, and the
Singletary,
Despite findings, typical postdivorce ar- its the circuit custodial rangement from a concluded was nonethe has evolved traditional situation, parent less the custodian and where re- entitled primary custody relocation based ceives sole or and the on the fact that the custodial ar noncustodial receives visi- weekend *9 tation, rangement This disagree shared-custody was “not to a situation. We 50/50.” "primary physical testified he custo- While understood define terms such as "primary physical custody” ap- to mean that dy” "joint legal custody” so pellee the final vote the event the meaning phrase is clear to intent and issue, parties disagreed on an this misunder- both the the courts that must decrees, standing highlights the need or- interpret language. ders, agreements regarding custody
67
evolution is
reflected
the 2013
just
amend
relocate is not
“primary”
labeled the
statute,
custody
ment to our
Ark. Code
custodian
the divorce decree but also
9—13—101(a)(1)(A)(iii),
§
pro
Ann.
which
spends significantly more timе with the
joint custody
vides that
awards
are now child than the
parent.
other
This standard
11,
in Arkansas. See Act of April
favored
preserves
rights
of primáry
a
custodi-
1-3,
§§
No.
Acts
Ark.
an when he
she has shouldered the vast
.or
4706-07.
majority of
responsibility
of caring for
However,
or
shared-custody
co-parent-
making
decisions on behalf of the
ing arrangements,
here,
child,
such as the one
also more accurately reflects
have also
it difficult for
made
circuit courts
child,
the best interest of the
analysis
to determine which
to a
apply
polestar
any
consideration in
custody deci-
request.
relocation
difficulty
This
evi-
Zimmerebner,
sion.
v.
Stehle
by
denced
frustration in
court’s
(2009).
fhe
disruptive impact that a relocation reiterate the our in equity of review matters sound relationship is on minimized. respect novo on to is the de record Here, responsi- parties shared the questions legal questions. and both factual making.decisions B.C.’s be- bility for on 506, Singletary v. Singletary , 2013 Ark. half, significant has and However, it 234. well settled the Un- meaningful relationship with child. of finding will not fact that we reverse above, we the test discussed der revised clearly circuit court errone unless analysis forth Sin- set conclude that In legions of cases this court has ous. Id. reloca- gletary, supra, governs appellee’s to opined clearly that for court a trial than rather erroneous, despite supporting evidence supra. Accordingly, we reverse the circuit record, reviewing court must court firm court’s decision remand conviction left with definite and a mistake has been committed. Id. Fur analysis the facts apply this ther, give superior deference due case. of position court view remanded; ap- Reversed and credibility Id. judge witnesses. This opinion peals’ vacated. even.greater cases involv deference -is custody, -as a heavier burden C.J., Kemp, concurs. on or placed judge use his her trial evaluating perception wit powers Baker, JJ., Hart, and Wynne, dissent.' nesses, testimony, and the best inter Yates, of the v. est McNutt children. 2013. Justice, Kemp, Dan Chief John 427, 430 concurring. applying- of review When this standard Still, I join majority opinion. h7I us, it from to the case before clear inter question “it ... serves that the circuit court’s record decision justice of the [or] ests children ends thoughtful after made delibera careful through cases view relocation | hearing on tion. conclusion isAt f prisms o threshold presumptions stated, July “There’s analysis in skew the artificially today tests talked that we about cases three Tropea give outcome another.” direction Court some what on rule, going Tropea, to rule—-or how to and I’m v. N.Y.2d N.Y.S.2d look at the (1996), take a little time and decisions 665 N.E.2d Accord decision,” facts, Til make a then ingly, opportunity to consid I welcome the 4, 2016, August the court entered On an er presumption whether-to abandon the eleven-page its explicitly explaining order altogether. why each of its- had reached decision findings. The order indicate details Hart, Justice, Josephine Linker careful de that- circuit court exerсised dissenting. evaluating all four witnesses’ liberation After of our standard consideration reaching testimony the conclusion review, say I .court’s cannot circuit- the Hollandsworth ap Therefore, I finding clearly erroneous. was in plied and that relocation .. the child.1 Hollandsworth must dissent. concurring place Contrary the assertions than burden the noncustodial nothing opinion, does *11 Knyzewski, 353 Ark. lyzed the five determining factors before (2003). the relocation was in best interest of B.C. It important to note Hol-
Although appellant argues landsworth and Singletary both lead in applying circuit court erred the Hol- the same analysis; the best-interest-of- presumption, application оf landsworth analysis. if, the-child Even majority as the Singletary only is correct a change “when suggest, would of custody sought joint-custody Singletary applied, was in a arrangement.” no Singletary, supra.2 there is evidence in the Howev- record that er, noted, weighs the court “it is against unclear wheth- finding circuit court’s ‘joint er the custody’ con- that relocation is in the best interest of the templated Singletary or child. ór party enjoys primary custody’ ‘sole Additionally, the court’s final statement as contemplated under It Hollandsworth.” of “frustration” should be considered only vigilant was' after consideration our review for reversible error. While the wording original agreement, the tes- court indicаted “the area law timony from the about their inten- clear, there, is not and that appears tions, testimony |19of and the lengthy all bright no test line as to when Hollands- four regarding witnesses conduct applies worth or Singletary parties, the court reached Jones apply,” stat- followed decision that the not enjoy did true ing, present case, “As in the other
joint custody proposed in Singletary. .as heard, cases this Court has dic- facts decision, In support of the court laid its tate which test to may use.” While there findings out multiple factual that made this perceived precedent confusion over from Singletary. n distinguishable case cases, like clearly circuit court articu- short, 50/50, of time division its understanding lated of the law and original agreement provides appel- applied the facts the law. Its written pay lant to support, appellant child opinion evidences that is no need lathere “primary testified that the phrase physical controlling for further on the clarification custody” appellee meant the had the final law, equation and neither a mathematical matters, say on phrase cho- nor a set of dictatorial rules can should appellee sen because had B.C. one more an easy Ultimately, become solution. do day a Additionally, week than he did. testi- analy- so eliminаte the best interest mony showed enrolled B.C. sis, long polestar which has been the in private paid for entirety school and custody, involving issues and reloca- tuition, bought his majority clothes, supra. matters. paid haircuts, Fur- all of his . thermore, findings by took all clear him to of his appoint- doctor’s only findings, ments. Based these court in case can lead to the applied carefully reviewing ana- that á court cannot conclusion establish move not in child.” best interest child. Both original change filings that a material applying Singletary, When "the trial court i.e, plac.e, appel- circumstances had taken change must first determine that material Houston, Texas, relocating lee with their transpired circumstances has from the time child; 'however, minor circuit court did and, then, the divorce decree determine that expressly finding. make that is in *12 firm left with “a definite
possibly has been made.” a mistake
conviction respectfully
I dissent. JJ., Wynne, join.
Baker
Douglas David Arkansas, Appellee
STATE
No. CR-16-983
Supreme Court of Arkansas.
Opinion Delivered November