*1 W. Shelton.” interest favor Virgil . . the noted . subject to amend on motion the admitted at hearing appellee’s Appellant it and that was superior a first lien on the that property appellee that, the because argued simply that Appellant appellant. to amend the no under Rule 60 circuit court had jurisdiction decree, caused by bear the cost of ambiguity must appellee decree, which the circuit court’s foreclosure O of Paragraph of all of lien with the liens his first along extinguish purported various defendants in the properties. the other to subor then appellee agreed argued Appellant it evidence offered no his lien to that of although dinate appellant, Arkansas Cemetery of this alleged agreement. attorney Board, and had been involved who at the was present hearing it was his understanding testified that the foreclosure proceedings, had no lien and that he had a first property appellee lien. subordinating light knowledge any agreement appellee’s itself, law, the circuit before the decree testimony court, of its cannot that the circuit court’s we say interpretation own decree was erroneous. clearly foreclosure
Affirmed. JJ., agree. Griffen,
Hart RAWE, v. RAWE Christa S. John Jr. S.W.3d549 CA 06-1063 of Arkansas Court Appeals 3, 2007 delivered October Opinion *2 Moak, D. for DeeNita appellant.
TeresaL. Hughes, appellee. in this met over David M. case Judge. Glover, Rawe, Arkansas internet. Appellant, Rawe, is from Australia. The were appellee, became November Arkansas. Christa preg- married on nant, her and David traveled Australia visit family. and she *3 Australia David so that he could enter Christa was to required sponsor had a conviction. because he thirteen-year-old felony Complications from in arose in Australia that Christa her while prevented pregnancy Australia, son, in was born Jake, Bendigo, traveling, couple’s 19, on 2003. is a dual citizen of Australia and United October Jake moved to Arkansas in 2004 and February States. The returned Paso, in David’s in El Arkansas. Christa with parents sought perma- States, in nent status the United which'was in granted July residency 2004. 20, 2004, David she was that
On July telling going shopping, to no returned home. David searched Christa took and never Jake 22, son, and and he then filed for divorce on avail for his wife July in located Christa and Australia 2004. David eventually Jake talk and he was able to to finally September Jake Australian an November After legal proceedings, protracted States; be returned to the United Christa court ordered Jake visitation on returned with Jake, began exercising 15, 2005. December 6, 2006, she Christa testified that
At the on hearing January his and his left of his alcohol David because problems, temper, Arkansas, friends, from Australia and violence. of her both Several with alcohol and his testified David’s temper. regarding problem David, his testified David was and two of friends parents, she not Christa testified that sober and did have a problem. temper have did because she did not go left in the manner she place In defense of actions felt safe in the United States. her where she son’s for almost two not David of his whereabouts notifying months, son she she had her from what she stated that removed that she be an environment. She also testified considered to unsafe life; home for the rest her never intended to make Arkansas her in the United to make filed for States residency she only permanent Christa it easier travel customs. through custody requested as well to return to Australia. as permission Jake The trial court the decree of divorce awarded granted after Christa but custody January hearing, Jake relocation, visitation, and reserved the issues of child On support. on these an in-chambers conference was held February issues. trial court outstanding granted permission schedule, with return to Australia set forth a visitation Jake, child to be ordered at a reduced rate of support paid seventy-seven dollars week 2006. The trial court also per beginning February denied Christa’s for child to the date retroactive request David filed for divorce.
The trial court’s of Christa’s to relocate with grant petition to Australia allowed them to leave immediately but the trial court David visitation 5:00 granted to 8:00 a.m. on 8. The p.m. trial court also February February noted Christa and been Arkansas for sixty-two days and that David had received The trial visitation. court ordered that neither to travel for visitation party required but that David could travel to Australia for as visitation with set forth visitation, in the visitation order. The terms forth in set decree to establish visitation and supplemental provided: support, *4 has testified that she will receive two weeks vacation paid [Christa] a once she obtains in year In employment Australia. 2007 and will come to Arkansas her vaca- withjake during [Christa] tion. shall a minimum give of sixty days [Christa] [David] notice of her and in anticipated arrival departure dates Arkansas. will entided to be visit a minimum of four withjake hours [David] a with day through returned to Monday Thursday being Jake care of at will be night. further entided to [Christa] [David] weekend visitation 6:00 until withjake from 6:00 p.m. Friday p.m. with Sunday other reasonable which along any visitation can be mutual arranged by agreement between the parties. In 2007 and shall travel to Australia visit to withjake [David]
for a minimum of two weeks. shall a mini- give [David] [Christa] mum of notice sixty days of arrival and anticipated depar- ture in Euchua. bewill entided to visitation with [Christa] [sic] each is not in school from 8:00 until day a.m. 6:00 Jake Jake and for two hours p.m. per when is in day school. will [David] Jake from 6:00 withjake p.m.
further be entitled to weekend visitation other reasonable until with Sunday any 6:00 Friday p.m. along between the mutual arranged by agreement visitation which can be Euchua, weeks in If should than six stay longer parties. [David] visitation on alternate weekends then weekend shall be the sixth after week. in in thereaf- continuing years 2009 and odd numbered
Beginning ter, from to travel to shall be released her obligation [Christa] to annual for shall be entitled visita- Arkansas two weeks. [David] from (Christmas break). tion break school during long in his six during visit with Arkansas week shall [David] school, said visitation to include period transpor- break with tation to and from the United States. Said visitation conditioned via withjake telephone contact upon having significant [David] to Australia visit having and/or webcam and traveled [David] for of weeks each and year a minimum two withjake period Further, this length of given young age be visitation visitation amended period, may upon good showing by If in Arkansas is able to to be all arrange during [Christa]. [Christa] be of the visitation shall entitled to portion period, or [Christa] The contact and “visitation” with shall telephone Jake. into extended time with visitation to transition arrange [David]. in even numbered there- continuing years Beginning after, the minor child shall be Christmas Eve [Christa] shall arrange Christmas Australia. Day [David’s] visitation so that receives the maximum number withjake [David] United during visitation in the States with six break, right
week Christmas into account taking [Christa’s] Day withjake Christmas Eve and Christmas visitation Australia travel and from the States. time to United shall the minor child Beginning bring [Christa] intends to States visitation. Unless travel United to begin [Christa] child, be to Arkansas minor visitation shall in Los exchange with the California, at the other U.S. child’s Angeles, any city designated It shallbe entry site of into the U.S. the responsibility [David] *5 Melbourne, return Australia to the care of custody to to in to If should elect remain Australia visit with [Christa]. [David] to visitation with the shall be entitled reasonable Jake, [David] child. minor contact or internet contactvia shallbe entitledto telephone [David] ofEaster, week, on the Memo- holidays
webcam with twice a 4th, Christmas Day, rial Labor Day, ThanksgivingDay, Day, July at 8:30 Austra- p.m. shallcontact andjake’s birthday. [David] home or location. lian time to the time zone at pursuant not be availableat 8:30 shall will notify ifjake p.m. [Christa] [David] a different and/or time arrange day of the aforesaid any days (45) Within of the date of her return to contact forty-five Jake. shall establishan internet account and pur- [Christa] chase a webcam so as to be able to receive internet contact by webcam from [David]. erred in
On trial court appeal, argues in Christa to Christa awarding custody Jake; allowing Australia; relocate to him limited visita- allowing only tion with that the trial court arguing cross-appeals, Jake. erred to award her child from the date David filed failing for divorce until of the divorce decree and entry by deviating from the chart David’s family support by decreasing child-support We affirm in and dismiss in on direct obligation. part part appeal, and we dismiss the cross-appeal. novo,
Cases are reviewed de and the sounding equity court will reverse a trial court’s if were appellate findings only they erroneous or clearly clearly against preponderance evidence; court, erroneous when the finding clearly reviewing evidence, on the entire is left with the definite and firm conviction Ford, that a mistake has been committed. Ford v.
S.W.3d 432 Due deference is trial court’s given to determine witness and the superior position credibility weight be their Id. Great deference is given testimony. given cases to the trial court’s and the best child-custody findings, interest of the child is the cases all other polestar custody considerations are Id. secondary.
Custody David’s first is that the trial court erred in point are Christa. We unable to reach the awarding custody merits of this because of deficiencies. In his argument procedural notice which was faxed to the courthouse and filed on appeal, 23, 2006, and followed the hard which was filed on by copy, June 26, 2006, David from the specifically appeals only Supple- June mental Order Decree to Establish Visitation Supplemental
96 However,
and both entered on 2006. the award May Support, decree, filed to Christa was in the divorce custody given of record on February Procedure Rule of the Rules of Civil 3(e) Appellate “A . . shall the or notice of provides, appeal. specify party decree, the shall the order or taking appeal; designate judgment, from; thereof and shall the contents of the designate part appealed record on In Arkansas Human Services v. appeal.” Department of 25 Ark. 756 933 this (1988), S.W.2d Shipman, App. court held
that a notice of must be what it recites and not appeal judged by it what was intended to recite. It must state the parties appealing
and the order from with not appealed specificity, persons named as to the notice and orders not mentioned in it are not the before court. properly appellate Here, made no mention in notice of of the divorce appeal decree; because the notice of does not the divorce designate decree, Christa, the trial which court as granted custody ofjake from, one of the orders this court does not have appealed jurisdiction to entertain David’s argument pertaining custody.
Relocation David next the trial court erred in argues allowing Christa to relocate to Australia with of this Jake. he cites Hollandsworth v. argument, Knyzewski, S.W.3d Hollandsworth established a presumption favor of relocation for custodial parents primary custody, that the custodial no holding parent longer required prove a real to them and the children in and that it advantage relocating, was the noncustodial burden to rebut the parent’s presumption relocate. court held that Our supreme polestar making child, relocation decisions was the best interest of the and it set forth five matters to be considered in a relocation decision: making relocation; educational, health, the reason for the (2)
leisure available in the location where the custodial opportunities relocate; (3) and children will visitation and communication parent schedule for the noncustodial the effect of the move on parent; extended the location which the family relationships relocate, Arkansas; custodial and children will well as as parent child, maturity, including age, preference his her reasons the childas to givenby preference. *7 485, Ark. at at 663-64. S.W.3d case, she
In this
Christa wanted to relocate because
an Australian citizen and her
tie to Arkansas was David. She
only
Australia,
had a
and she
real and
owned
job
personal property
Australia.
wanted to return Australia after her
Christa
marriage
failed. There was no
that the educational
testimony
opportunities
Australia,
fact,
were deficient
and in
there was favorable
with
to the health care.
was too
testimony
regard
young
lived;
reason,
a
as to where he
for that
the fifth
express preference
factor had no
in this case. While it is true that David’s
bearing
extended
would no
be able to
family, especially
parents,
longer
basis,
see
on a
is not
regular
relationship
grandparents
Weber,
sufficient to rebut the
to relocate. SeeBlivinv.
presumption
483,
Visitation David’s last is that the trial court erred point appeal him limited visitation. We We believe that granting disagree. the trial court did the best it could in a unfortunate situation. very case, In this do not live in different cities merely states, but rather different live on different continents. Al they in his David classifiesthe visitation as “minimal though argument schedule, the visitation set forth point being negligible,” above, allows David to have substantial of visitation with periods both in Australia and in Arkansas. David that the Jake, argues visitation schedule is not in best interest because it provides However, limited contact between father and son. due to the only case, circumstances of this a standard visitation schedule was not feasible and visitation was limited to several logically expanded time, blocks of in addition to visitation. telephone computer This is not an ideal situation because the live on separate continents and the noncustodial will have less parent necessarily fact. these face-to-face visitation as a result On
frequent facts, we hold the trial visitation is court’s schedule not clearly erroneous.
Cross-appeal has filed a that the trial court cross-appeal, arguing erred in to order David to child refusing retroactively pay support 22, 2004, and in in a downward manner from July deviating the amount of child indicated in the Family Support Chart. and is dismissed. cross-appeal untimely David’s notice of was first filed fax on appeal by June later, and the hard notice of was filed three copy from two orders entered on May June notice of Christa’s was not filed until cross-appeal August 2006. Rule 4(a) Rules Procedure Civil Appellate *8 that “a notice of shall be filed within ten provides cross-appeal after of the notice of that in no event days receipt appeal, except shall a have less than from the cross-appellant thirty days entry of the or decree order within which to file a notice of judgment, In the 26 notice of David’s cross-appeal.” appeal, attorney June that a certified of the notice of was sent via facsimile copy appeal and/or the mail to Christa’s on 2006. In the attorney June notice of Christa’s stated that of notice cross-appeal, attorney David’s was not obtained until appeal August notice of was filed on cross-appeal August case, statement,
In this
other than Christa’s attorney’s
we have no
with which to determine whether the cross-
proof
is a matter this court can raise on its
appeal
timely. Jurisdiction
accord,
own
and we
cannot determine that we have
simply
to hear a
based
jurisdiction
bare assertion
an
cross-appeal
upon
by
The notice of
was filed on
2006. Christa
attorney.
appeal
June
made no
that she did not receive David’s notice of
showing
appeal
Therefore,
within ten
of
her
we have no
days
filing
cross-appeal.
before us that the notice of
was not received until
proof
appeal
17, and we dismiss the
as
August
See
cross-appeal
untimely.
State,
v.
Heffley,
Vaught, J., concurs. Larry D. I Although agree concurring. Judge, Vaught, in the majority results contained the reasoning to an overlooked attention often I write to bring separately opinion, of of the Arkansas Rules 3(f) rule Rule of procedure. appellate - the notice of of Procedure Civil requires copy Appellate “[a] or counsel for shall be served by appellant appeal cross-appeal mail all other counsel for parties by any cross-appellant upon form case, the this added.) which a signed (Emphasis requires receipt” — failed to serve the both cross-appellant litigants appellant While mail as our rules. their notices required by by signed-receipt it their does not validity appeal, non-compliance impact determination the cross- does our to hear jurisdiction complicate appeal.
Here, been served notice of by signed-receipt appeal mail, her know when received we would definitively appellee Rule the Rules of of the notice. We would then 4(a) copy apply - cross- Civil and the notice of Procedure Appellate require after the notice of be filed within “ten receipt with Rule it is Without compliance 3(f), extremely appeal.” difficult to in a determination that is engage jurisdictional depen- the bar such, dent of a notice. As we encourage “receipt” rule, to take this use the note of and we complications surrounding in this evidence of the rule’s case as utility. cross-appeal