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SUPREME COURT OF ARKANSAS
No. CV-13-587
AMALIE E. SINGLETARY Opinion Delivered DECEMBER 12, 2013
APPELLANT APPEAL FROM THE LONOKE
COUNTY CIRCUIT COURT
V. [NO. DR-2009-698]
JOSEPH E. SINGLETARY HONORABLE SANDY HUCKABEE,
APPELLEE JUDGE
AFFIRMED; COURT OF APPEALS’
OPINION VACATED.
DONALD L. CORBIN, Associate Justice
Appellant, Amalie “Amy” E. Singletary (now Bishop), appeals the order of the Lonoke
County Circuit Court awarding a change in custody of her minor daughter to her former
husband, Appellee Joseph E. Singletary. For reversal, she contends that the circuit court erred
in failing to consider her status as a custodial parent and in failing to apply the presumption
announced in Hollandsworth v. Knyzewski, 353 Ark. 470, 109 S.W.3d 653 (2003) that
relocation by a custodial parent is not alone a material change in circumstances; she also
contends that the circuit court erred in not articulating the standard of analysis for ordering
a change in custody. We granted Appellee’s petition for review of the decision of the
Arkansas Court of Appeals that reversed and remanded the circuit court’s order. Bishop v.
Singletary, 2013 Ark. App. 394, ___ S.W.3d ___. Jurisdiction of this appeal is therefore
properly in this court pursuant to Arkansas Supreme Court Rule 1-2(e) (2013). We cannot
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say the circuit court was clearly erroneous; therefore, we affirm the circuit court’s order
granting a change in custody to Appellee. The opinion of the court of appeals is vacated.
Appellant and Appellee were divorced by decree in April 2010. They had one child,
their daughter C.S., who was born in 2007. Regarding custody of C.S., the decree states that
“[t]he parties shall have joint custody of the minor child with [Appellant] having primary
custody. Child support and visitation shall be in accordance with the settlement agreement
attached hereto and incorporated herein as if set out word-for-word.” The stipulation and
property-settlement agreement states that “the parties shall have joint legal custody of the
parties’ minor child . . . with the [Appellant] being the primary physical custodian.” The
agreement further states that, unless agreed upon otherwise, “the parties shall alternate custody
of the minor child on a weekly basis, with visitation exchange to occur every Friday at 5:00
p.m.” Finally, with respect to custody, the agreement states that the parties “shall attempt to
consult with one another concerning the health, welfare, education and activities of the minor
child.” As for child support, the agreement makes no provision for either party to pay or
receive child support. The agreement does provide, however, that Appellee would provide
health insurance for C.S., that all other expenses such as orthodontic, ophthalmic, and day-
care expenses would be divided evenly, and that Appellee would claim C.S. as a dependent
for federal and state income-tax purposes.
Both parties remarried after the divorce. In April 2011, Appellant filed a motion for
change of custody and child support, alleging therein that a material change in circumstances
had occurred since the decree was entered because her current spouse was being transferred
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to Fort Worth, Texas.1 Appellant acknowledged in the motion that the parties “were granted
joint custody of the minor child with [Appellant] having primary custody.” Appellant
acknowledged further that neither party had been ordered to pay child support. Appellant
alleged that the relocation to Texas with her new husband was a change in circumstances and
requested that she be granted sole custody of the child, subject to liberal visitation by
Appellee, with the costs of visitation to be shared between the parties.
Appellee responded and counterclaimed for sole custody and support. He also filed
several motions, including one for the appointment of an attorney ad litem and one for
mediation. Prior to the hearing on the cross-motions for change of custody, the parties and
the attorney ad litem attended mediation. They reached a detailed agreement as to the
visitation arrangement or “parenting plan” they wanted the court to implement once the
court determined who was to be granted sole custody. The gist of their agreement was that
the noncustodial parent would have visitation one weekend per month, every spring break,
the majority of the summer, and every other Christmas.
At the hearing on the motions for change of custody, both Appellant and Appellee
testified that they had originally agreed to joint custody with Appellant as primary physical
custodian; both parties testified that they understood this to mean that they would each have
equal time with their daughter, but that Appellant would be the parent with the ultimate
1
At the hearing on this motion, the circuit court accepted the stipulation of
Appellant’s counsel that it was attorney error that the motion stated that Appellant’s new
husband was being transferred to Texas when in truth he was seeking an elective position
there.
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responsibility to make final decisions about C.S.’s care. Appellant and her new husband,
Gerald Bishop, testified that he had obtained a new position in Texas with a higher salary that
would allow Appellant to be a stay-at-home mother to C.S. and C.S.’s younger half-siblings.
Both Appellant and Appellee testified that there were no disagreements with the custody
arrangement until after Appellant’s relocation.
Appellant’s counsel presented closing argument at the hearing and contended that
Appellant should receive the presumption in favor of relocation by a custodial parent set out
in Hollandsworth, 353 Ark. 470, 109 S.W.3d 653. Counsel for Appellee argued that
Hollandsworth did not apply because the parties had joint custody of their child. The attorney
ad litem for C.S. also presented closing argument and agreed with Appellee that the parties
had a true joint-custody arrangement and that Hollandsworth should therefore not apply. The
attorney ad litem pointed out that both parties were fit parents who had agreed to share
custody of their daughter on a “fifty-fifty” basis, but that that agreement could no longer
work. The attorney ad litem opined that the parties were equal in light of the factors stated
in this court’s Administrative Order No. 15, but did observe that all of C.S.’s extended family
ties were in Arkansas and none were in Texas. The attorney ad litem stated that joint custody
was in C.S.’s best interest and that he did not see how breaking the joint-custody agreement
would be in C.S.’s best interest. The ad litem ultimately recommended that Appellee be
given custody of C.S.
On May 8, 2012, the circuit court entered an order in which it found that the parties
had joint custody of C.S. and that Appellant’s relocation and the parties’ inability to cooperate
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constituted a material change in circumstances. The order reflects that the circuit court then
considered the child’s extended family relationships in Arkansas and the recommendation of
the child’s attorney ad litem when concluding that a change in custody to Appellee would be
in the child’s best interest. Accordingly, the circuit court’s order awarded sole custody of the
child to Appellee. The circuit court did not apply Hollandsworth in making its decision, but
did cite Lewellyn v. Lewellyn, 351 Ark. 346, 93 S.W.3d 681 (2002), for the general proposition
that, when a trial court changes custody of a child, the court must first determine that a
material change in circumstances has transpired since the time of the divorce, and then
determine that a change in custody is in the child’s best interest.
Appellant’s appeal to the court of appeals followed. The court of appeals decided the
appeal in Appellant’s favor and reversed and remanded the case to the circuit court. Bishop,
2013 Ark. App. 394, ___ S.W.3d ___. As noted, we granted Appellee’s petition for review
of that decision.
When this court grants a petition to review a decision by the court of appeals, we
review the appeal as if it had been originally filed in this court. Lewellyn, 351 Ark. 346, 93
S.W.3d 681. This court has traditionally reviewed matters that sounded in equity de novo
on the record with respect to fact questions and legal questions. Id. We have stated
repeatedly that we would not reverse a finding by a trial court in an equity case unless it was
clearly erroneous. Id. We have further stated that a finding of fact by a trial court sitting in
an equity case is clearly erroneous when, despite supporting evidence in the record, the
appellate court viewing all of the evidence is left with a definite and firm conviction that a
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mistake has been committed. Id. We also give due deference to the superior position of the
chancellor or circuit court to view and judge the credibility of the witnesses. Stills v. Stills,
2010 Ark. 132, 361 S.W.3d 823. These common-law principles continue to apply after the
adoption of amendment 80 to the Arkansas Constitution. Lewellyn, 351 Ark. 346, 93 S.W.3d
681.
Appellant’s first and third points for reversal are so closely related that we consider
them together. Appellant’s first point for reversal is that the circuit court erred in failing to
take into consideration her status as primary custodial parent. Her third point for reversal is
that, as the alleged custodial parent, she was entitled to the presumption announced in
Hollandsworth, 353 Ark. 470, 109 S.W.3d 653, that relocation by a custodial parent alone does
not constitute a material change in circumstances. In short, Appellant takes the position that
her status as “primary physical custodian” in a “joint-custody” arrangement is the equivalent
of having been given sole custody such that her petition for change of custody should be
analyzed under Hollandsworth. Appellant argues that the circuit court erred in disregarding the
Hollandsworth analysis and applying the analysis of Lewellyn instead.
Appellee acknowledges Appellant’s status as primary physical custodian, but contends
that status does not alter the joint-custody relationship the parties agreed to and in fact
enjoyed with their child prior to Appellant’s relocation. Appellee responds that Lewellyn is
the controlling precedent here because Lewellyn applies when the parties share joint custody.
Because the parties do have joint custody, Appellee’s argument continues, Hollandsworth’s
presumption that a custodial parent’s relocation does not alone constitute a material change
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in circumstances simply does not apply to Appellant. In short, Appellee contends that
Hollandsworth does not apply to a joint-custody arrangement.
We begin our analysis with a review of the Hollandsworth opinion. First and foremost,
we observe that the term “joint custody” does not appear anywhere in the Hollandsworth
decision, although the term “primary custody” does, as do the terms “custodial parent” and
“noncustodial parent.” When describing the custody agreement of the parties in
Hollandsworth, this court stated as follows:
According to the divorce decree, appellant was awarded primary custody of the parties’
two children, subject to visitation by appellee. The divorce decree went on to find that
appellant and appellee were each entitled to one-half of the children’s free time, which
the trial court set out as being weekends, holidays, and summer vacations. The trial
court further set out a schedule of visitation if the parties could not otherwise agree.
The parties thereafter negotiated a more liberal visitation schedule that allowed
appellee to be with the children three and one-half days per week until the eldest child
began kindergarten.
Id. at 472–73, 109 S.W.3d at 655 (emphasis added). The foregoing relationship described in
Hollandsworth was not a joint-custody arrangement. Rather, Hollandsworth involved a situation
of sole custody with primary custody of the children being given to one parent, the custodial
parent, and visitation during half of the children’s free time being given to the other parent,
the noncustodial parent. That the Hollandsworth case involved a sole- or primary-custody
arrangement, as opposed to a joint-custody arrangement, is further evident in the language
of this court announcing its holding:
We agree and hold that relocation of a primary custodian and his or her children alone
is not a material change in circumstance. We announce a presumption in favor of
relocation for custodial parents with primary custody. The noncustodial parent should have
the burden to rebut the relocation presumption. The custodial parent no longer has
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the responsibility to prove a real advantage to herself or himself and to the children in
relocating.
....
The polestar in making a relocation determination is the best interest of the
child, and the court should take into consideration the following matters: (1) the
reason for the relocation; (2) the educational, health, and leisure opportunities available
in the location in which the custodial parent and children will relocate; (3) visitation
and communication schedule for the noncustodial parent; (4) the effect of the move
on the extended family relationships in the location in which the custodial parent and
children will relocate, as well as Arkansas; and, (5) preference of the child, including
the age, maturity, and the reasons given by the child as to his or her preference.
Id. at 476, 485, 109 S.W.3d at 657, 663–64 (emphasis added).
We clarify today that the Hollandsworth relocation presumption applies only in those
cases where a parent has been granted sole or primary custody of a child. We further clarify
that the Hollandsworth relocation presumption simply does not apply when the parents share
joint custody of a child. This is so because the rationale for the Hollandsworth presumption
simply does not apply to a joint-custody arrangement. The purpose of the Hollandsworth
decision was to recite and adhere to this court’s historical recognition of the right of a
custodial parent to relocate and take the children with him or her and to thereby correct the
court of appeals’ erroneous departure from that historical precedent in favor of the erroneous
“real advantage” test. See id. at 475, 109 S.W.3d at 657. The rationale behind Hollandsworth
was to preserve and protect the stability of the relationship between the child and the custodial
parent with whom the child spent the majority of his time, while balancing the custodial-
parent’s right to relocate. Id. However, in a true joint-custody arrangement, both parents
share equal time and custody with the child; therefore, there is not one child-parent
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relationship to take preference over the other. The rationale of the Hollandsworth relocation
presumption simply does not apply to a parent who has joint custody and desires to relocate.
We do not retreat from the relocation presumption announced in Hollandsworth, but clarify
that it is not applicable when the divorcing parents have joint custody of their children.
We further clarify that the proper analysis for a court facing a change-in-custody
request due to relocation of one parent when the parents have joint custody was announced
by this court in Lewellyn. That analysis, however, is essentially the same as a change-in-
custody analysis when relocation is not involved. See Lewellyn, 351 Ark. at 357, 93 S.W.3d
at 687 (stating that the trial court was correct in refusing to apply relocation analysis and
instead analyzing case as “purely one involving change of custody”). Thus, as this court stated
in Lewellyn when a change-of-custody was sought in a joint-custody arrangement, the trial
court “must first determine that a material change in circumstances has transpired from the
time of the divorce decree and, then, determine that a change of custody is in the best interest
of the child.” Id. at 355, 93 S.W.3d at 686 (citing Lloyd v. Butts, 343 Ark. 620, 37 S.W.3d
603 (2001)).
Having determined that Lewellyn applies to relocation cases where parents share joint
custody and that Hollandsworth applies to relocation cases where one parent has sole or primary
custody, we must now consider the propriety of the circuit court’s finding that the parties in
the present case had agreed to and did in fact share joint custody of their daughter. We begin
by looking to the contracts involved—in this case that is the divorce decree, which also
incorporates by reference a property-settlement agreement as to custody and visitation.
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This court set forth the applicable standard of review for issues of contract
interpretation in Wal-Mart Stores, Inc. v. Coughlin, 369 Ark. 365, 371, 255 S.W.3d 424, 429
(2007) (citations omitted) (quoting Alexander v. McEwen, 367 Ark. 241, 244, 239 S.W.3d 519,
522 (2006)):
The first rule of interpretation of a contract is to give to the language employed the
meaning that the parties intended. In construing any contract, we must consider the
sense and meaning of the words used by the parties as they are taken and understood
in their plain and ordinary meaning. The best construction is that which is made by
viewing the subject of the contract, as the mass of mankind would view it, as it may
be safely assumed that such was the aspect in which the parties themselves viewed it.
It is also a well-settled rule in construing a contract that the intention of the parties is
to be gathered, not from particular words and phrases, but from the whole context of
the agreement.
This court has explained further that when an ambiguity exists in a contract, we are
permitted to look outside the contract to determine the actual intent and conduct of the
parties. Rockefeller v. Rockefeller, 335 Ark. 145, 980 S.W.2d 255 (1998). In arriving at the
intention of the parties, the courts may consider and accord considerable weight to the
construction of an ambiguous contract or deed by the parties themselves, evidenced by
subsequent statements, acts, and conduct. Id.
Referring to the contract language recited at the beginning of this opinion, we see that
the issue in this case is the interpretation of the following language in the divorce decree:
“The parties shall have joint custody of the minor child with [Appellant] having primary
custody.” The decree’s use of the term “joint custody” along with the term “primary
custody” is ambiguous on its face. According to the above-cited rules of contract
interpretation, we resolve the ambiguity by looking to other parts of the contract and to the
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parties’ testimony about what they intended, as well as to their conduct. See id. In looking
at all these factors, it is uncontroverted that the parties intended a true joint-custody
arrangement and that they did in fact enjoy a true joint-custody arrangement. Other parts of
the decree, as well as the separation agreement that was incorporated therein, indicate that
C.S.’s time would be divided between the parties on a weekly basis and that decisions
regarding C.S.’s care, as well as expenses associated with her care, would be divided equally.
We observe the recent definition of “joint custody” adopted by the General Assembly in a
2013 amendment to Arkansas Code Annotated § 9-13-101(a)(5) (Supp. 2013): “‘joint
custody’ means the approximate and reasonable equal division of time with the child by both
parents individually as agreed to by the parents or as ordered by the court.” The testimony
at the hearing in this case of the parties’ intent was undisputed that equal time with their
daughter was intended, and the parties conduct confirmed that, as both parties testified that
they did, in fact, share equal time with C.S. And that is indeed what the circuit court found
when it concluded that these parties had agreed to a “true 50/50 arrangement with the parties
having equal time with their child with both parties in close proximity in Arkansas.”
Because the circuit court correctly found that the parties in the present case enjoyed
a true joint-custody relationship despite the designation of Appellant as “primary physical
custodian” for the purpose of having the final decision as to the child’s care, we conclude that
the circuit court did not err in failing or refusing to apply the Hollandsworth presumption in
favor of Appellant. Likewise, because the circuit court correctly found that the parties have
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a true joint-custody relationship, we conclude that the analysis of Lewellyn was the controlling
precedent to be applied by the circuit court.
Turning now to Appellant’s second point on appeal, we consider her argument that
the circuit court erred in failing to articulate the analysis it used in granting a change of
custody. Initially, we note that Appellant has not pointed us to anything in the record to
demonstrate that she made a timely request for specific findings and conclusions pursuant to
Rule 52 of the Arkansas Rules of Civil Procedure. Even assuming arguendo that she did
make such a timely request, we conclude that her argument is wholly without merit. The
circuit court expressly articulated that it was applying the change-in-custody analysis of
Lewellyn, whereby it must first find that a material change in circumstances has transpired since
the divorce and that a change in custody is in the best interest of the child. The circuit court
then found as follows:
8. With [Appellant’s] move to Texas, along with the impracticality of the parties’
continuing to exercise joint custody and the parties’ lack of cooperation in decisions
that affect the child’s welfare, the Court finds there to be a material change in
circumstances.
9. The Court then considers the child’s best interests in determining whether to grant
a change in custody.
10. In determining the child’s best interest, the Court has considered, the moral fitness,
stability, and love and affection of the parties. The Court has also considered the child
and all her family relationships, including her extended family relationships in Arkansas.
The Court further finds that both [Appellant]’s husband and [Appellee]’s wife are
positive influences in the child’s life. The Court has also considered the
recommendation of . . . the child’s attorney ad litem.
11. In sum, the Court has weighed the totality of the considerations in favor of
[Appellee] being granted custody of [C.S.], though not to a significant degree.
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[Appellant] shall have visitation with [C.S.] as previously agreed to by the parties . . . .
The Court specifically finds said custody and visitation to be in [C.S.]’s best interest.
12. Since [Appellant] is currently unemployed, the Court sets her child support at the
chart minimum, which is $26/week.
Given the foregoing analysis of the circuit court, Appellant’s argument that the circuit
court failed to articulate an analysis is wholly without merit. In addition, we simply cannot
say on this record that the circuit court’s findings were clearly erroneous. The circuit court’s
order granting a change in custody from joint custody to sole custody in Appellee with
visitation to Appellant is affirmed. The opinion of the court of appeals is vacated.
Affirmed; court of appeals’ opinion vacated.
BAKER and HART, JJ., dissent.
KAREN R. BAKER, Justice, dissenting. Because the majority’s decision stands in
conflict with our case law on the Hollandsworth presumption, I must dissent.
The majority clarifies that the Hollandsworth presumption applies only in cases where
a parent has been granted sole or primary custody of a child, and does not apply when parents
share joint custody of a child. Hollandsworth v. Knyzewski, 353 Ark. 470, 109 S.W.3d 653
(2003). However, in Blivin v. Weber, 354 Ark. 483, 126 S.W.3d 351 (2003), this court
reversed and remanded for the circuit court to reconsider the case in light of the standard and
factors set out in Hollandsworth, which had been decided after the circuit court made its ruling.
We stated, “The divorce decree provided that the parties would share joint legal custody of
the children, but that Jamai would have primary physical custody.” Here, as well, the
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settlement agreement incorporated in the divorce decree states that both parties would have
joint legal custody of C.S., with Amy being the primary physical custodian.
The majority states that Lewellyn v. Lewellyn, 351 Ark. 346, 93 S.W.3d 681 (2002),
announces the proper analysis for a court facing a change-in-custody request due to relocation
of one parent when the parents have joint custody. However, Lewellyn was decided before
both Hollandsworth and Blivin. I do not see how Lewellyn can control this issue when later
cases, which are directly on point, stand in opposition to it.
Further, the majority sets out a distinction where none exists. The majority
distinguishes Hollandsworth and Lewellyn by stating that Lewellyn controls in joint-custody
situations and Hollandsworth controls when one parent has primary custody. However, in
Lewellyn, even though the parents had joint legal custody, the divorce decree designated one
parent as the “custodial parent” and the other as the “non-custodial parent.” In Hollandsworth,
the divorce decree designated one parent as the “custodial parent” and the other as the “non-
custodial parent,” and, as the majority states, the parties negotiated a more liberal visitation
schedule that allowed both parents to have the child three-and-a-half days per week.
Therefore, the only difference that the majority sets out between Hollandsworth and
Lewellyn is whether there is a specific statement in the divorce decree that the parents share
joint “legal” custody. In so deciding, the majority places the right of a custodial parent to
relocate in the balance based on boilerplate language added to divorce decrees. The majority
then goes on to state that if there is a specific statement of joint “legal” custody in the divorce
decree and one parent is designated the primary custodial parent, this creates an ambiguity in
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the decree, and the circuit court must look to the conduct and intent of the parties to see
whether the arrangement is “a true joint-custody arrangement.” Yet the majority gives no
guidance to law practitioners on when custody is “a true joint-custody arrangement” and
when it is not. In Hollandsworth, the arrangement was not a true joint-custody arrangement,
even though both parents shared equal time with the child. In Lewellyn, there was a true
joint-custody arrangement, even though there was a custodial parent and a noncustodial
parent. In Blivin, the Hollandsworth presumption applied, even though both parties enjoyed
joint custody. Here, the majority decides that custody was a true joint-custody arrangement,
even though there was a primary custodial parent, and holds that the Hollandsworth
presumption does not apply. In clarifying the law, the majority has left settled law far more
opaque.
Following our precedent set out in Blivin, I would reverse and remand to the circuit
court for reconsideration based on the standard and factors set out in our Hollandsworth
decision.
HART, J., joins in this dissent.
Law Office of Kathryn L. Hudson, by: Kathryn L. Hudson, for appellant.
Gregory Crumpton, for appellee.
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