McNutt v. Yates

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SUPREME COURT OF ARKANSAS
No. CV-13-454

SHAUNA CHANTEL YATES Opinion Delivered October 31, 2013
MCNUTT
APPELLANT APPEAL FROM THE LONOKE
COUNTY CIRCUIT COURT
V. [NO. DR-2010-592]

HONORABLE SANDY HUCKABEE,
MATTHEW DALTON YATES JUDGE
APPELLEE
AFFIRMED IN PART; REVERSED
AND REMANDED IN PART;
COURT OF APPEALS’ OPINION
VACATED.

PAUL E. DANIELSON, Associate Justice

Appellant Shauna Chantel Yates McNutt appeals from the circuit court’s order

changing custody of the parties’ minor children to appellee Matthew Dalton Yates. The court

of appeals affirmed the circuit court’s order in part and reversed and remanded in part in a 5-1

decision. See McNutt v. Yates, 2013 Ark. App. 307, ___ S.W.3d ___. Ms. McNutt petitioned

this court for review, which we granted on July 25, 2013. When this court grants a petition

for review, we treat the appeal as if it had been originally filed in this court. See Payne v.

Arkansas Dep’t of Human Servs., 2013 Ark. 284. On appeal, Ms. McNutt asserts three points

of error by the circuit court: (1) that it abused its discretion in denying her motion for a

continuance after granting her counsel’s motion to withdraw; (2) that it erred in finding that

Mr. Yates proved a material change in circumstances and in awarding him custody; and (3)
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that it did not have the power to retroactively modify child support to April 2011. We affirm

the circuit court’s order in part and reverse and remand in part.

The parties were divorced by order of the circuit court on September 9, 2011. The

parties were awarded joint legal custody of M.Y. and N.Y., the two children from the

marriage, with Ms. McNutt having primary physical custody and Mr. Yates receiving

visitation. In addition, Mr. Yates was ordered to pay Ms. McNutt $152 per week in child

support, based on his income of $585 per week.

On September 28, 2011, Ms. McNutt filed a motion for contempt, request for

modification, and for review of child support. In it, Ms. McNutt alleged numerous violations

of the divorce decree for which she believed Mr. Yates should be held in contempt, including

that Mr. Yates had harassed her by verbally abusing her; had made disparaging comments

about her in the children’s presence; had hampered communication between her and the

children; had failed to pay child support; had had overnight guests of the opposite sex; had

used alcohol in excess; and had refused to return Ms. McNutt’s personal property. She further

requested a modification of Mr. Yates’s visitation and the circuit court’s order to sell her

vehicle at a commissioner’s sale. Finally, Ms. McNutt requested that the circuit court review

Mr. Yates’s income because she believed it to be more than $585 per week.

On October 21, 2011, Mr. Yates answered Ms. McNutt’s motion and filed his own

motion for contempt, modification, and motion for relief of outstanding issues. In it, he

alleged that Ms. McNutt had violated the divorce decree when she failed to communicate

with him regarding the children’s well-being; failed to inform him of emergency care or

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nonroutine medical care provided to the children; denied him visitation to the point that

police involvement was required; used the children to communicate with him; made

disparaging remarks about him in front of the children and allowed others to do so; allowed

third parties “to act inappropriately toward” him in front of the children; continued to harass

him and make baseless allegations against him; and had not paid a debt for which she was

responsible, such that he was receiving notices about the debt. He further requested that the

first right of refusal for childcare be added to the divorce decree; that she be required to

reimburse him for a joint debt that he was required to pay in full because of Ms. McNutt’s

failure to cooperate; and that she be ordered to communicate with him regarding an IRS

inquiry as to their joint tax return.

He subsequently filed a motion for modification of custody on March 2, 2012. Mr.

Yates again alleged that Ms. McNutt had continued to be noncompliant with the circuit

court’s orders and would not facilitate or promote a relationship between the children and

him; he further asserted that Ms. McNutt actively attempted to disrupt his relationship with

the children. In addition, he alleged that the children spent more time with Ms. McNutt’s

parents than with her; that her parents’ home was “filthy” and in an unsafe neighborhood;

that her parents were unable to assist the children with their homework and caused them to

be late to school on several occasions; that he disagreed with Ms. McNutt’s choice of school

for the children, in that it conflicted with “the religious upbringing the parties had agreed

upon for the children” and was unaccredited; that Ms. McNutt refused to allow the children

to participate in extracurricular activities and further prevented them from engaging in age-

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appropriate activities, such as dancing, wearing nail polish, participating in organized sports,

and wearing appropriate clothing to the extent that the children feared punishment or

religious backlash; and that the children had expressed a desire to live with him. For these

reasons, he stated, he sought to be granted full custody and for Ms. McNutt to receive

reasonable visitation.

The matters were set for trial on April 12, 2012; but on March 16, Ms. McNutt’s

counsel moved to withdraw, stating that he and Ms. McNutt had irreconcilable differences

such that he could no longer represent her. The circuit court granted the motion, and on

April 11, 2012, the day before the set trial date, Ms. McNutt moved for a continuance pro

se. That motion was denied, and the hearing on the foregoing matters was held on April 12.

On May 9, the circuit court entered its order. In it, the circuit court found there to

be a material change of circumstances in light of the fact that Ms. McNutt now had the

children attending a private school not accredited by the State; she had the children attending

a church associated with the school that the parties had agreed during the marriage not to

attend; the children were no longer in extracurricular activities as they were during the

marriage; and the children’s overall demeanor had changed in a negative way since entry of

the divorce decree. The circuit court then found it to be in the children’s best interest to

change custody to Mr. Yates and award visitation to Ms. McNutt. It further ordered that

should either party need a care provider for the children, the other party had the first right of

refusal to provide that care. In addition, the circuit court ordered Ms. McNutt to pay child

support in the amount of $301 biweekly, and it retroactively modified Mr. Yates’s past child-

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support obligations to April 2011, “when Mr. Yates was receiving $300/week in

unemployment compensation benefits which is $107.00/week child support.” Ms. McNutt

was ordered to reimburse Mr. Yates for her share of the marital debt that he had paid to the

Arkansas Department of Finance and Administration, and she was ordered to communicate

with the IRS about that matter and to notify Mr. Yates of that communication. It further

denied all remaining claims for relief. Ms. McNutt brings the instant appeal from this order.

I. Withdrawal of Counsel and Motion for Continuance

For her first point on appeal, Ms. McNutt argues that the circuit court abused its

discretion in allowing her counsel to withdraw and in its subsequent denial of her motion for

continuance. She contends that the circuit court should have denied the motion to withdraw

where her former counsel stated no facts in support of his claim that there were irreconcilable

differences with her and the circuit court failed to make any inquiry thereto. She further

maintains that the circuit court abused its discretion in denying her motion for continuance

and forcing her to go to trial when she was not well-versed in the law.

Mr. Yates counters that Ms. McNutt never challenged the circuit court’s order

relieving her counsel; therefore, that issue is waived for purposes of appeal. He further

contends that there was no abuse of discretion in the circuit court’s denial of her continuance

motion, where she had twenty-seven days in which to find alternate counsel and where she

did not file the motion until the day before the hearing date.

A. Withdrawal of Counsel

Ms. McNutt first challenges the circuit court’s grant of her former counsel’s motion

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to withdraw; however, that issue is not preserved for our review. A review of the record

reveals no written or verbal objection made by Ms. McNutt to the circuit court opposing her

counsel’s motion to withdraw. This court has been resolute that objections must be timely

and even constitutional objections are waived unless made to the circuit court. See Henry v.

Eberhard, 309 Ark. 336, 832 S.W.2d 467 (1992).

B. Motion for Continuance

The denial of a motion for a continuance is within the sound discretion of the circuit

court, and the circuit court’s ruling will be reversed only if there is an abuse of discretion. See

Jacobs v. Yates, 342 Ark. 243, 27 S.W.3d 734 (2000). The burden is on the appellant to show

an abuse of that discretion as well as to demonstrate prejudice before this court will consider

the circuit court’s denial of a continuance as an abuse of discretion warranting reversal. See

id.

Here, Ms. McNutt’s counsel was permitted to withdraw by order of the circuit court

on March 16, 2012, and she did not file her motion for continuance until April 11, 2012. In

it, she merely stated, in effect, that she had attempted to find counsel, but was unable to do

so. She further averred that she was currently pro se only because she lacked the funds to hire

counsel, and she sought a continuance to permit her more time in which to find legal

representation.

In her brief on appeal, Ms. McNutt points to no other prejudice than the facts that she

lost custody of the children to Mr. Yates and that she did not know proper trial procedure so

as to make relevant objections. This court does not presume bias or prejudice. See, e.g.,

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Committee for Util. Trimming, Inc. v. Hamilton, 290 Ark. 283, 718 S.W.2d 933 (1986). Merely

because Ms. McNutt did not prevail in the instant action does not suffice to prove prejudice.

Accordingly, we affirm the circuit court’s denial of her motion for continuance.

II. Material Change in Circumstances and Best Interest of the Child

In her second point on appeal, Ms. McNutt asserts that the circuit court erred in

finding a material change of circumstance that warranted a change of custody. She contends

that there was no change in circumstance relating to the children’s school and church, as they

were attending the same school and church at the time of the parties’ divorce; the same, she

urges, applies to the circuit court’s finding regarding the children’s lack of participation in

extracurricular activities. Finally, she asserts, the circuit court’s finding of a change in the

demeanor of the children can be attributed solely to Mr. Yates’s new wife, who she alleges

does not agree with Ms. McNutt’s religious practices. She further states that the “only time

their demeanor changes is when they are with their father and his new wife.”

Mr. Yates responds, conceding that the children were attending the same church and

school as they were before the divorce decree was entered; however, he contends that Ms.

McNutt failed to consult him on her decision to change churches and enroll the children in

that school. He further states that it was not until after the divorce that Ms. McNutt changed

her behavior and became more strict in her Pentecostal beliefs and lifestyle, which had grave

effects on the children. He maintains that the circuit court’s main focus and concern

regarding the change of the children’s church and school related to the negative impact these

abrupt changes had on their demeanor since entry of the divorce decree. He further avers that

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much evidence was presented to demonstrate that, since the entry of the divorce decree, the

children have acted in an unsettling manner and have been put under undue stress by Ms.

McNutt. In addition, he notes, there was sufficient evidence before the circuit court on

which this court could find a change in circumstances due to Ms. McNutt’s interference with

Mr. Yates’s relationship with his children.

In reviewing child-custody cases, we consider the evidence de novo, but will not

reverse a circuit court’s findings unless they are clearly erroneous or clearly against the

preponderance of the evidence. See Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d 520

(1999). We give due deference to the superior position of the circuit court to view and judge

the credibility of the witnesses. See id. This deference to the circuit court is even greater in

cases involving child custody, as a heavier burden is placed on the circuit court to utilize to

the fullest extent its powers of perception in evaluating the witnesses, their testimony, and the

best interest of the children. See id. Where the circuit court fails to make findings of fact

about a change in circumstances, this court, under its de novo review, may nonetheless

conclude that there was sufficient evidence from which the circuit court could have found a

change in circumstances. See id. (citing Campbell v. Campbell, 336 Ark. 379, 985 S.W.2d 724

(1999); Stamps v. Rawlins, 297 Ark. 370, 761 S.W.2d 933 (1988)).

Arkansas law is well settled that the primary consideration in child-custody cases is the

welfare and best interest of the children; all other considerations are secondary. See Alphin v.

Alphin, 364 Ark. 332, 219 S.W.3d 160 (2005). A judicial award of custody should not be

modified unless it is shown that there are changed conditions that demonstrate that a

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modification of the decree is in the best interest of the child, or when there is a showing of

facts affecting the best interest of the child that were either not presented to the circuit court

or were not known by the circuit court at the time the original custody order was entered.

See id.

Generally, courts impose more stringent standards for modifications in custody than

they do for initial determinations of custody. See id. The reasons for requiring these more

stringent standards for modifications than for initial custody determinations are to promote

stability and continuity in the life of the child and to discourage the repeated litigation of the

same issues. See id. In order to avoid the relitigation of factual issues already decided, the

courts will restrict evidence on a custodial change to facts arising since the issuance of the

prior order. See Stehle v. Zimmerebner, 375 Ark. 446, 291 S.W.3d 573 (2009). The party

seeking modification has the burden of showing a material change in circumstances. See id.

Here, the circuit court found that the change in the children’s demeanor “in a negative way”

since the parties’ divorce, among other bases, constituted a material change in circumstances.1

We agree with that particular finding, but note, through the context of our de novo review,

that there was other additional evidence before the circuit court that, when coupled with the

change in the children’s demeanor, sustains a finding of a material change in circumstances.

1
As already noted, the circuit court also found that, since the divorce decree, the
children were attending an unaccredited school and a church associated with that school that
the parties had agreed during their marriage not to attend, and that the children were no
longer engaged in extracurricular activities as they were during the marriage. Because there
is a dispute between the parties as to whether these events occurred since the divorce or
existed prior to that time, we note that our decision today is based solely on our de novo
review of the evidence and bases specifically set forth in this opinion.

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See, e.g., Hamilton, 337 Ark. 460, 989 S.W.2d 520.

In the hearing before the circuit court, Ms. McNutt testified that, just prior to the

hearing, she had called the Child Abuse Hotline of the Arkansas Department of Human

Services (“DHS”) to report that Mr. Yates and his current wife fondled each other in the

children’s presence and that Mrs. Yates walked around in her underclothing in front of the

children. In addition, she stated, she reported that the Yateses performed sexual acts in front

of the children and that Mr. Yates forced N.Y. to take medicine when he was not sick. She

admitted, however, that she had not “seen or witnessed anything.” Ms. McNutt further

testified that she told other parents at the children’s school that Mr. Yates was addicted to

pornography and that he and his current wife were bisexual and had sex with multiple

partners and that she had told still others, without any proof, that Mr. Yates had killed the

children’s puppy. Ms. McNutt also admitted to telling the police and others, again, without

any proof, that Mr. Yates had burglarized her home; this included the children, to whom she

did not specifically confirm, but also did not explicitly deny, that their father may have been

the one to break into her home.

Samantha Bishop, M.Y.’s fourth-grade teacher, also testified and confirmed that

another parent had contacted her to relay concerns about Mr. Yates’s behavior that the parent

had heard from another parent in the weeks prior to the hearing. She stated that the

concerned parent heard “[t]hat he had been involved in porn, in multiple partners, and that

he’d never really had a relationship with [M.Y.] and . . . they didn’t know why he was

coming up to the school [to visit his children during their lunch and recess time].”

Johnathan Ball, a friend of Mr. Yates’s for six or seven years and a relative of Ms.
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McNutt’s, testified that Mr. Yates had a good relationship with his children, but that it was

“different now that all this is going on.” He testified that with “all” that had been going on,

it was “awkward . . . for the kids” and “a total shock to their . . . culture.” He stated that the

children acted differently and were distant since the parties’ divorce. Cammy Yates, Mr.

Yates’s wife and the children’s stepmother, also testified that, since the divorce, “it’s gotten

worse and worse” when the children came to their house for visitation. She stated that on

several occasions in the last couple of weeks prior to the hearing, M.Y. had asked her

questions that she felt were abnormal coming from a ten-year-old child. She testified that the

children are “real scared about getting in trouble.”

For instance, Mrs. Yates explained, when they would go to the mall to shop, M.Y.

looked around and, if she saw anyone from her church, hid in a store because she was worried

about getting in trouble for wearing what is considered in the Pentecostal faith to be

nontraditional clothes. She further testified that the children had occasionally “expressed

concern or upset before going back to” Ms. McNutt. For example, she testified that she took

M.Y. for a manicure and pedicure, but on arriving back at home, M.Y. began to cry and said

that the nail polish had to be removed “because I will get in trouble” at school and with her

mother.

Mrs. Yates testified that M.Y. had attempted to “catch [her] naked” on several

occasions, and M.Y. had asked about her sex life with Mr. Yates. Mrs. Yates stated that M.Y.

had asked her, approximately two or three weeks prior, how one obtained AIDS and whether

Mrs. Yates had it. She testified that her husband had made attempts to not meet Ms. McNutt

at her church to exchange the children because it made the children uncomfortable, and the
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children would get out of the car and cover themselves. She further testified that recently,

since the divorce, it had been “[t]ough on the kids.”

Mr. Yates also testified. He stated that there has been no communication from Ms.

McNutt regarding the children’s needs relating to school, such as needing to bring things or

school projects, or when they have been invited to birthday parties, requiring a gift to be

purchased, that fall on a day that he has visitation with the children. He testified that instead

of letting him know beforehand, he is told by the children on the day he has visitation with

them that they have a project due the next day.

He further stated that Ms. McNutt makes disparaging remarks about him in front of

the children and allows others to do so. Mr. Yates testified that, that very day, his children

were sitting in the hallway of the courthouse during the hearing. He stated that he heard Ms.

McNutt state to her family, including the children, that “[he and the witnesses on his behalf]

were all a bunch of liars and that we were in there trying to take the kids from her.” He

testified that he overheard Ms. McNutt’s mother telling the children that there were lies being

told in the courtroom about them. Mr. Yates stated that, while they were in the hallway, he

also saw Ms. McNutt allowing their daughter to read an order for his drug testing.

Mr. Yates testified that as late as the week before the hearing, M.Y. wanted to attend

a dance camp. The problem though, he testified, was that she would have to do it without

Ms. McNutt’s permission or authority, because she “will be in trouble if she does anything

like that, she’s not allowed to do that at her mom’s.” He further testified that he noticed a

change in M.Y.’s demeanor since she was told that dance and gymnastics were “bad,” that she

had become “just kind of down” and “sad” about it. He stated that, prior to the divorce, she
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had participated in those activities.

With respect to N.Y., Mr. Yates testified that he was “having to struggle to get him

into team sports” because Ms. McNutt refused to take N.Y. and told Mr. Yates that her pastor

did not believe in organized sports. He testified that both of the children are “on guard when

they’re around” their mother, and that as soon as she is not around, “it’s like a light switch

goes off and they are completely different children.” He stated that when Ms. McNutt is

present, the children are not affectionate with him; they appear scared to give him any

affection in front of her. However, he stated, when she is not around, he cannot get the

children “off” him; they want to sit in his lap and hug him. He stated that it is “like a

completely different life . . . when she is not around.”

Finally, in a video deposition that was also admitted and considered by the circuit

court, Elaine “Laney” Yates, Mr. Yates’s mother, testified that since the divorce, the

children’s demeanor had really changed. She stated that she had caught M.Y. spying on her,

Mr. Yates, and Mrs. Yates, trying to overhear things. She testified that she had taken M.Y.

shopping and that most of the clothes M.Y. chose were not traditional, Pentecostal attire.

She stated that M.Y. did not “think about it until right before she . . . has to go home, and

then she starts getting scared.”

Laney also testified that she had taken M.Y. to get a pedicure at the beginning of her

visitation with Mr. Yates, but that on the night or day she was due to return to her mother,

she had taken off the nail polish. She stated that M.Y. “was in a panic” to remove the residue

that had stained her nail; M.Y. told her that she had to get it off. Laney stated that N.Y. then

said that their mother was going “to be real mad at [M.Y.].” She testified that M.Y. was
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depressed and needed counseling because she was unhappy. She also said that M.Y. would

get angry when she normally “wasn’t like that at all.”

We have been clear that in resolving the clearly erroneous question, we must give due

regard to the opportunity of the circuit court to judge the credibility of witnesses. See Hudson

v. Kyle, 365 Ark. 341, 229 S.W.3d 890 (2006). Additionally, we give great weight to the

circuit court’s personal observations; this is so because there are no cases in which the superior

position, ability, and opportunity of the circuit court to observe the parties carries a greater

weight than those involving the custody of minor children. See id. In this case, Ms. McNutt

herself seems to agree that there has been a change in the children’s demeanor, although she

attributes it to Mrs. Yates’s influence. However, the circuit court was not required to find

to whom the change in demeanor should be attributed; it simply needed to find that there was

a material change in circumstances, which it did when it found that there existed a change in

the children’s demeanor “in a negative way” since the parties’ divorce. In light of the

testimony before the circuit court, we cannot say that this finding was clearly erroneous. But,

in addition, there was the testimony before the circuit court in support of Mr. Yates’s

contention that Ms. McNutt did not facilitate or promote a relationship between him and the

children and actively attempted to disrupt the relationship they had, since their divorce.

To find that the circuit court clearly erred, we must be left, on the entire evidence,

with a definite and firm conviction that a mistake has been committed. See Campbell v.

Campbell, 336 Ark. 379, 985 S.W.2d 724 (1999). After conducting our de novo review of

the instant record, we are not so left. Our court of appeals has observed that the appellate

court does not examine each of the circuit court’s findings in isolation; certain factors, when
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examined in the aggregate, may support a custody modification even where each factor, if

examined in isolation, would not. See, e.g., Boudreau v. Pierce, 2011 Ark. App. 457, 384

S.W.3d 664; Davis v. Sheriff, 2009 Ark. App. 347, 308 S.W.3d 169. And we have been clear

that our de novo review in these cases means that a complete review of the evidence and the

record may take place as part of the appellate review to determine whether the circuit court

clearly erred. See Stehle, 375 Ark. 446, 291 S.W.3d 573. Having conducted such a de novo

review in the instant case, we simply cannot say that the circuit court clearly erred in finding

that a material change in circumstances existed.

We then must consider whether the change of custody to Mr. Yates was in the

children’s best interest. In its order, the circuit court stated as follows:

In determining the children’s best interest, the Court has considered the moral
fitness, stability, and love and affection of the parties. The Court has also considered
the children, their well-being, and all their relationships. . . . In sum, the Court has
weighed the totality of the considerations in favor of Mr. Yates being granted custody
of the children, though not to a significant degree. Ms. McNutt shall have the same
visitation schedule with the children as Mr. Yates which is set forth in the September
9, 2011, Divorce Decree. The Court specifically finds said custody and visitation to
be in the children’s best interest.

We cannot say that the circuit court’s decision was clearly erroneous.

It is more than clear from the instant record that Ms. McNutt loves and cares for her

children, as does Mr. Yates. However, as already set forth, the circuit court considered these

factors, in addition to others, as well as all of the testimony and evidence before it, and

determined that it was in the children’s best interest to change custody to Mr. Yates. We

have emphasized that our de novo review in these cases does not mean that the appellate

court becomes the surrogate circuit court. See Stehle, 375 Ark. 446, 291 S.W.3d 573. And

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we have more than well established that the circuit court, in these types of cases, is in a much

better position than this court to observe the parties’ demeanor and assess their credibility.

See id. Therefore, giving the great weight to the circuit court’s observations as we must, we

are unable to say that the circuit court clearly erred in finding that it was in the children’s best

interest for custody to be changed to Mr. Yates.

III. Retroactive Modification of Child Support

For her final point on appeal, Ms. McNutt contends that the circuit court erred in

retroactively modifying Mr. Yates’s past child-support obligation back to April 2011. In his

brief, Mr. Yates concedes for purposes of appeal that the circuit court erred in making such

a modification.

Here, the circuit court stated that Mr. Yates’s past child-support obligations were

“retroactively modified to April 2011.” However, we have held that a decree that contains

a provision for the payment of child support shall be a final judgment until either party moves

to modify the order. See Guffey v. Counts, 2009 Ark. 410. We have further observed that

retroactive modification of court-ordered support may only be assessed from the time that a

petition for modification is filed, absent a specific finding of fraud in procuring the existing

support decree. See id. Accordingly, we reverse and remand on this issue.

For the foregoing reasons, we affirm in part and reverse and remand in part.

Affirmed in part; reversed and remanded in part; court of appeals’ opinion vacated.

BAKER and HART, JJ., dissent.

KAREN R. BAKER, Justice, dissenting. While troubled by the circuit court’s failure

to grant a continuance after relieving appellant’s counsel, I disagree with the majority
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opinion’s holding on McNutt’s second point on appeal, and agree that the circuit court erred

in assessing child support. Because the majority looks behind the divorce decree and ignores

the standard of review, I must respectfully dissent.

We review child-custody cases de novo. Brown v. Brown, 2012 Ark. 89, 387 S.W.3d

159. In Stehle v. Zimmerebner, 375 Ark. 446, 291 S.W.3d 573 (2009), this court clarified the

de novo standard of review, stating as follows:

Equity cases are reviewed de novo. This means the whole case is open for
review. This does not mean, however, and we emphasize this point, that findings of
fact by the circuit judge in equity cases are simply dismissed. They are not. The
clearly erroneous standard, cited above and set out in our rules of civil procedure,
governs if the circuit judge has made findings of fact. As Rule 52(a) states:

Findings of fact, whether based on oral or documentary evidence, shall not be
set aside unless clearly erroneous (clearly against the preponderance of the
evidence), and due regard shall be given to the opportunity of the circuit court
to judge the credibility of witnesses.

In determining whether the circuit judge clearly erred in a finding, the appellate
court may look to the whole record to reach that decision. But, to reiterate, to reverse
a finding of fact by a circuit judge, that judge must have clearly erred in making that
finding of fact, which means the reviewing court, based on the entire evidence, is left
with the definite and firm conviction that a mistake has been made.

To summarize, de novo review does not mean that the findings of fact of the
circuit judge are dismissed out of hand and that the appellate court becomes the
surrogate trial judge. What it does mean is that a complete review of the evidence and
record may take place as part of the appellate review to determine whether the trial
court clearly erred in either making a finding of fact or in failing to do so.

Id. at 455, 291 S.W.3d at 580 (internal citations omitted). While the majority opinion

emphasizes that de novo review does not mean that the appellate court becomes the surrogate

circuit court, that is exactly what the majority has done here.

To facilitate stability and continuity in the life of a child and to discourage repeated

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litigation of the same issues, custody can be modified only upon a showing of a material

change of circumstances. Orantes v. Orantes, 2011 Ark. 159, 381 S.W.3d 758. The party

seeking modification of the custody order has the burden of showing a material change in

circumstances. Id. In order to avoid the relitigation of factual issues already decided, trial

courts will restrict evidence on a custodial change to facts arising since the issuance of the

prior order. Id.

When circumstances affecting the best interests of the child were not presented to the

circuit court at the time the original custody order was entered, they can be considered in

determining whether a material change of circumstances has occurred. Hamilton v. Barrett,

337 Ark. 460, 989 S.W.2d 520 (1999). However, the exception to the general rule that

custody orders are final as to circumstances then existing has no application where the parties

were aware of the circumstances and entered into an agreement that is approved by the court.

Orantes, supra. The trial court is rarely, if ever, apprised of all the circumstances leading to a

custody settlement, yet when incorporated into a divorce decree, they are nonetheless final

orders. Id. Agreed orders of custody would have no finality if these circumstances could later

be used as a basis to modify custody. Id. Circumstances known by the parties when they

enter into a custody agreement cannot be the basis for finding that a material change in

circumstances has occurred. Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767 (1996).

In this case, the divorce decree was entered on September 9, 2011. The circuit court,

therefore, was barred from considering any changes that occurred before that date as evidence

to support a finding of a material change in circumstances. The circuit court’s order states as

follows:
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Since the Divorce Decree, Ms. McNutt now has the children attending a
private school which is not accredited with the State; the children are attending a
church associated with the school which the parties had agreed during the marriage not
to attend; the children are no longer involved with extracurricular activities as they
were during the marriage; and the children’s overall demeanor has changed in a
negative way since the entry of the Divorce Decree. Thus, the Court finds there to
be a material change in circumstances.

Thus, the circuit court made four findings to support its ruling that there had been a material

change in circumstances: (1) the church the children were attending; (2) the school the

children were attending; (3) the lack of extracurricular activities that the children were

participating in; and (4) the change in the children’s demeanor. The majority recognizes that

some of these circumstances existed prior to the divorce. However, the majority holds that

the change in the children’s demeanor and “other additional evidence” is sufficient to sustain

a finding of a material change in circumstances.

It is clear from a de novo review of the record that the circuit court clearly erred in

finding that the church the children attended, the school that the children attended, and the

lack of extra-curricular activities for the children to participate in were material changes in

circumstance. Yates admitted that the children attended the church and school before the

divorce decree, and stated that the children had been forbidden to participate in extra-

curricular activities for more than a year. These circumstances all existed prior to the divorce

decree, and thus cannot be considered material changes in circumstance.

The majority bases its holding on the only remaining finding of fact made by the

circuit court, the change in the children’s demeanor. As evidence from its de novo review

of the record, the majority points out a laundry list of evidence gained from testimony at the

hearing. This evidence, however, was not shown to have an impact on the children’s
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demeanor, and is simply a listing of accusations of bad acts by McNutt or her family, most of

which occurred, if they occurred at all, before the entry of the divorce decree.

The evidence that the majority opinion relies on to sustain the circuit court’s finding

of a change in the children’s demeanor, mainly stems from M.Y.’s worries of getting in

trouble over clothing and nail polish or her “sad” disposition in regards to no longer being

able to participate in gymnastics. However, even if these issues were sufficient to support a

change of circumstances determination, and they do not, both of these changes predate the

divorce decree. It is uncontested that the reason that M.Y. does not participate in extra-

curricular activities and worries about wearing nail polish and specific types of clothing is the

church and school that she attends, a church and school that she attended before the divorce

decree was entered. Yates further testified that M.Y. had been “like that for a year or actually

more than that.” As the hearing was held in April 2012 and the divorce decree was entered

in September 2011, any change in M.Y.’s demeanor predated the entry of the divorce decree.

The majority also puts great weight on the statement by McNutt that there has been

a change in the children’s demeanor, which she ascribes to Yates’s wife. However, it is clear

from the record that McNutt’s belief relates to the children’s reactions to the different lifestyles

of their parents. These circumstances were in place prior to the divorce decree and were thus

not before the circuit court in this case.

The party seeking modification of the custody order has the burden of showing a

material change in circumstances. Orantes, supra. The evidence presented by Yates does not

establish whether the changes in the children’s demeanor came before or after the divorce

decree. For example, Yates’s mother testified that M.Y. had been caught spying and trying
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to overhear things, but it is not clear whether these incidents occurred before or after

September 9, 2011. Because Yates has the burden to show that a change has occurred since

the entry of the divorce decree, evidence failing to establish that it occurred after the last

custody order cannot meet his burden.

Therefore, the only evidence that Yates presented to show a change in the demeanor

of his children since the entry of the divorce decree is the testimony of his wife, Cammy

Yates, and the testimony of Johnathan Ball, his friend and McNutt’s cousin. Ball stated that

the children acted differently and were distant since the divorce, but did not tie this to any

specific actions on the part of either child. Cammy Yates stated that M.Y. had asked her

several questions she felt were abnormal for a ten-year-old girl over the few weeks before the

hearing and that the children’s behavior has gotten “worse and worse” since the parties’

divorce.

However, I can find no cases where this court has held that the change in the

demeanor of a child alone was sufficient to constitute a material change in circumstances. In

so holding now, the majority abrogates the finality of custody orders. Under the majority’s

entirely subjective standard, the noncustodial parent has the opportunity to relitigate the issue

of custody any time the noncustodial parent perceives a change in a child’s “demeanor.”

The majority opinion also states that there was testimony before the circuit court in

support of Yates’s contention that McNutt did not facilitate or promote a relationship

between him and the children and actively attempted to disrupt the relationship since the

divorce. However, the circuit court made no such finding. On de novo review, this court

does not make its own findings of fact, or state that there was sufficient evidence for the
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circuit court to make a finding of fact that it did not make. Instead, as stated above, we

review the record to ensure that the evidence supports the circuit court’s findings of fact. It

is clear, then, that without a finding of fact, this court has nothing to review. Ignoring this,

the majority looks at evidence that predates the divorce decree and conjures up a finding of

fact that the circuit court did not make, namely that McNutt had actively attempted to disrupt

Yates’s relationship with their children.

Because I do not believe that a de novo review of the record supports the circuit

court’s finding that there was a material change in circumstances, I would reverse the circuit

court’s order.

HART, J., joins.

Alexander Law Firm, by: Hubert W. Alexander, for appellant.

The Law Offices of Katherine E. Blackmon, by: Katherine E. Blackmon, for appellee.

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