Emis v. Emis

Cite as 2017 Ark. App. 372

ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-15-993

ROBIN M. EMIS Opinion Delivered June 7, 2017
APPELLANT
APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
SIXTEENTH DIVISION
V. [NO. 60DR-10-1616]

HONORABLE MORGAN E. WELCH,
JUDGE
KEITH W. EMIS
APPELLEE AFFIRMED

PHILLIP T. WHITEAKER, Judge

This appeal arises from a child-custody modification. Robin Emis appeals the Pulaski

County Circuit Court order modifying the custody arrangement of the parties’ minor children

placing primary custody in Keith Emis and providing Robin with visitation. She also appeals

the trial court’s award of attorney’s fees and its denial of other posttrial motions. We affirm.

The procedural history is as follows. Robin and Keith divorced in September 2011

when their twin boys were twenty-two months of age. Robin was awarded custody, and

Keith was awarded visitation. Subsequently, Robin and Keith reached an agreement

modifying the custody, support, and visitation provisions of the decree. They agreed that each

would have “joint physical custody of the minor(s), with legal custody vested in Plaintiff

Robin Emis.” On September 5, 2014, the trial court entered an order modifying support,

custody, and visitation pursuant to their agreement, nunc pro tunc to May 1, 2012.
 Cite as 2017 Ark. App. 372

Eventually both Robin and Keith sought an award of primary custody, and Robin

requested the court’s permission to relocate with the children to Florida. Their respective

claims were tried by the court during a three-day hearing. On August 27, 2015, the trial

court entered a formal order denying Robin’s motions and granting Keith’s request for a

change in custody. Robin filed a timely notice of appeal from this order. See Emis v. Emis,

2017 Ark. 52, 508 S.W.3d 886.

Posttrial, Robin filed a motion for recusal, which was denied by the court. Keith filed

a motion to strike an affidavit and a motion for attorney’s fees, which were both granted by

the court. The court also granted a motion for attorney’s fees filed by the attorney ad litem.

Robin timely filed notices of appeal from those orders as well.

On appeal, Robin argues that the trial court erred in denying her motion to relocate

by finding that she had engaged in a constructive fraud with respect to the entry of the

September 2014 child-custody agreement and by construing that agreement to be one of

“true joint custody.” She also challenges the trial court’s finding that a material change of

circumstances existed to support modification. Finally, she challenges the trial court’s award

of attorney’s fees to the attorney ad litem and opposing counsel; its denial of her motion for

recusal without benefit of a hearing; its decision to strike an affidavit without a hearing and

while the motion to recuse was still pending; and its order denying her request to vacate the

appointment of the attorney ad litem without a hearing. We consider each of these issues in

turn.

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I. Child Custody and Relocation

We first consider the issue of whether the trial court erred in awarding primary custody

of the children to Keith and in denying Robin’s request to relocate. In reviewing this equity

matter, we conduct a de novo review of the record and do not reverse a finding by the trial

court unless it is clearly erroneous or clearly against the preponderance of the evidence. Foley

v. Foley, 2014 Ark. App. 351. We also give due deference to the trial court in judging the

credibility of the witnesses, and this deference is even greater in cases involving child custody,

since a heavier burden is placed on the trial court to utilize to the fullest extent its powers of

perception in evaluating the witnesses, their testimony, and the best interest of the children.

Id. With these standards in mind, we turn our consideration to the issues of custody and

relocation before the trial court.

A. Custody Determination

We begin our consideration with the trial court’s decision to award primary custody

of the twins to Keith. In order to change custody, the trial court must first determine that

a material change in circumstances has occurred since the last order of custody. Nichols v.

Teer, 2014 Ark. App. 132, 432 S.W.3d 151. Thus, we must conduct a de novo review of the

nature of the custody relationship created by the September 2014 agreed order so that we may

properly evaluate the trial court’s finding of a material change of circumstances in this case.

The trial court found that the September 2014 agreed order established joint custody

of the children between Robin and Keith. In reaching this conclusion, the court found that

the “joint custody arrangement” agreed to by the parties was ambiguous. As a result, the court

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considered the circumstances surrounding the entry of the order in its determination. Robin

challenges the trial court’s characterization of the child-custody arrangement. She contends

that the order was not ambiguous as it related to the legal custody of the children; therefore,

the trial court erred in its determination. We disagree.

We find no error in the trial court’s conclusion that the September 2014 agreed order

was ambiguous. Both Robin and Keith agreed to the terms and to the entry of the September

2014 order. In fact, the September 2014 agreed order was drafted by Robin.1 That order

states that “the parties have joint physical custody of the minor(s), with legal custody vested

in [Robin].” The September 2014 agreement, however, refers to “visitation” rather than

alternating physical custody and provides for a large award of child support despite “shared

physical custody.” In other words, it is unclear from the agreement itself exactly what the

nature of the September 2014 modification to the divorce decree was intended to be.2

The first rule of interpretation of a contract is to give the language employed the

meaning that the parties intended. Singletary v. Singletary, 2013 Ark. 506, 431 S.W.3d 234.

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. Id. 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

1
Robin is an attorney licensed to practice in the State of Arkansas.
2
Compare the imprecise language in the September 2014 order with the clear language
of the initial divorce decree, which expressly stated that Robin “shall have full legal and
physical custody of the minor(s), subject to set visitation of [Keith].” The divorce decree
referred to Keith as the “non-custodial parent.”

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parties themselves viewed it. Id. 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. Id. Using these standards of law, we agree with the trial

court that the September 2014 order is ambiguous.

Because the nature of custody provided for in the September 2014 agreed order is

ambiguous, the trial court’s consideration of extrinsic evidence of the intent of the parties was

not clearly erroneous. Our supreme court has explained 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. We will now consider the extrinsic

evidence of record, beginning with the pleadings from the parties.

In her original motion to modify the decree and to relocate, Robin asserted that the

parties had entered into a “joint custody arrangement” on September 5, 2014. She averred

that, prior to the execution of the “joint custody agreement,” the parties had “co-parented

peacefully and visitation was relatively conflict-free.” She then claimed that, since the entry

of the order, the parties had been engaged in “consistent hostility/conflict/upheaval.” In fact,

she described the arrangement as a “hybrid joint custody arrangement, with shared parenting

responsibilities.” As a result, she claimed that, given the latent hostilities that had erupted

between the parties, coparenting on a “joint-custody” basis was no longer possible. She then

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requested that the court “modify the joint custody arrangement” to revert “primary custody”

back to her.

After Keith had filed his motion to change custody, Robin’s perspective of the

agreement changed. In her response to Keith’s motion, she denied that the parties had a true

“joint custody arrangement”; instead claiming that she retained “full legal custody” of the

children and that they shared a “hybrid joint visitation arrangement.” (Emphasis in original.)

We next consider the extrinsic evidence found in the testimony. At the time of the

September 2014 agreed order, the parties had rekindled their relationship and were

romantically involved. In fact, Keith was frequently cohabitating with Robin. Despite this

rekindled relationship, Keith became involved in an unrelated paternity action. Robin, a

licensed attorney, discussed the matter with him, and they determined that it would be

advantageous to Keith in the paternity action if there was a custody order portraying him in

the most positive light. Robin drafted the September 2014 agreed order with this goal in

mind and informed Keith that “[t]his is as true joint custody as we can get.”3 Ambiguities in

a written contract are construed strictly against the drafter. Byme, Inc. v. Ivy, 367 Ark. 451,

459, 241 S.W.3d 229, 236 (2006); Universal Sec. Ins. Co. v. Ring, 298 Ark. 582, 586, 769

S.W.2d 750, 752 (1989). While Robin testified that she never intended to share joint legal

custody with Keith, Keith testified that he believed at the time they entered into the

3
At the time the order was drafted and was entered, Robin was not technically acting
as Keith’s counsel, although she admitted that she provided him with legal advice regarding
the order. She further admitted her actions could be construed as having acted as his attorney
during the drafting and the negotiation of the September 2014 agreed order. Shortly
thereafter, the parties began a formal attorney-client relationship.

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September 2014 custody agreement that he was receiving joint custody of the children. The

court clearly found Robin’s testimony to be less than credible. The trial court specifically

stated that Robin’s testimony and demeanor on the witness stand showed an erratic but

consistent effort to manipulate events to support future litigation. When the question of

whether the trial court’s findings are clearly erroneous turns largely on the credibility of the

witnesses, we give special deference to the superior position of the circuit court to evaluate

the witnesses, their testimony, and the child’s best interest. Riddick v. Harris, 2016 Ark. App.

426, 501 S.W.3d 859. Based on the foregoing, we cannot hold that the trial court’s decision

to treat the September 2014 order as one granting joint custody was clearly erroneous.4

B. Material Change of Circumstances

Next, we turn to whether there had been a material change of circumstances. When

a change of custody is sought in a joint-custody arrangement, the circuit court first must

determine that there has been a material change of circumstances. Singletary, supra. Only after

meeting that threshold will the court then consider what is in the best interest of the children.

Id.

Here, at the time the September 2014 custody order was entered, Robin and Keith

were engaged in a romantic relationship and were practically, if not actually, cohabitating.

4
We note that Robin also argues that the trial court erred in concluding that her
actions constituted a constructive fraud. A de novo review of the record, however, reveals
that there was sufficient evidence from which to support the trial court’s findings without
resorting to the trial court’s constructive-fraud determination. Thus, even assuming Robin’s
argument is correct in this regard, the outcome remains the same. We can affirm the circuit
court when it reaches the right result, even though it may have announced the wrong reason.
Delgado v. Delgado, 2012 Ark. App. 100, 389 S.W.3d 52.

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Not long after, their relationship soured, and the parties once again separated. After the

separation, Robin and Keith’s relationship devolved into disharmony and discord. Evidence

of the deterioration and troubled nature of their relationship was presented to the court by

both Keith and Robin during a highly contested and adversarial three-day hearing.5 When

the parties have fallen into such discord that they are unable to cooperate in sharing physical

care of their children, this constitutes a material change in circumstances affecting the

children’s best interest. Word v. Remick, 75 Ark. App. 390, 58 S.W.3d 422 (2001). We have

reversed the continuation of a joint-custody arrangement on a motion to modify custody

when “there was a mountain of evidence . . . demonstrating that the parties could no longer

cooperate in reaching shared decisions in matters affecting their children.” Doss v. Miller, 2010

Ark. App. 95, at 9, 377 S.W.3d 348, 355; see also Stibich v. Stibich, 2016 Ark. App. 251, at 5,

491 S.W.3d 475, 479 (quoting Gray v. Gray, 96 Ark. App. 155, 157, 239 S.W.3d 26, 29

(2006)) (“Regardless of whether joint custody is favored, our law remains that ‘the mutual

ability of the parties to cooperate in reaching shared decisions in matters affecting the

children’s welfare is a crucial factor bearing on the propriety of an award of joint custody, and

such an award is reversible error where the cooperation between the parents is lacking.’”).

Based on our de novo review of the extensive and voluminous record before us, we cannot

conclude that the trial court’s determination that there had been a material change of

5
In fact, in her initial motion, Robin asserted that the parties had been engaged in
“consistent hostility/conflict/upheaval” such that coparenting on a “joint-custody” basis was
no longer possible.

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circumstances6 was clearly erroneous; nor do we have a definite or firm conviction that a

mistake has been made.

C. Best Interest

Next, we must determine whether the trial court erred in determining that it was in

the best interest of the children to award custody to Keith. Once the material change of

circumstances threshold requirement has been met, the court must then determine who

should have custody with the sole consideration being the best interest of the child. Acklin v.

Acklin, 2017 Ark. App. 322, ___ S.W.3d ___. Here, other than noting the attorney ad litem’s

recommendation that it was in the best interest of the children to grant Keith primary custody

of the children, the trial court’s opinion in this regard is practically silent. However, because

there is a presumption that a circuit court made the findings necessary to support its judgment,

we presume that the court considered the children’s best interest when it awarded custody to

Keith. See Hoover v. Hoover, 2016 Ark. App. 322, at 8, 498 S.W.3d 297, 301. Here, Robin

presented evidence that she had been the primary caretaker for the children since their birth

and that, while Keith was a good father to the children, he was not actively involved in the

day-to-day parenting of the children. Instead, she asserted that she was primarily responsible

for feeding, bathing, and dressing the children; taking them to school, doctor’s appointments,

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We are aware that the trial court, as part of its material-change-of-circumstances
analysis, found that Robin’s conduct constituted a violation of Arkansas Code Annotated
section 9-13-101(b)(1)(A)(iii) and that Robin challenges this particular finding. However, we
need not address the correctness of the trial court’s ruling, because there was sufficient other
evidence of a material change of circumstances without the need to rely on that particular
factor. As stated above, we can affirm the circuit court when it reaches the right result, even
though it may have announced the wrong reason. Delgado v. Delgado, supra.

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and extracurricular activities; and interacting with their school and teachers. Keith testified

regarding the actions he took with respect to the care of the children, his relationship with

them, their relationship with their extended family, his educational concerns, and his

parenting philosophy. The trial court also had before it evidence of the parties’ relationship

with each other and their ability to interact with each other with respect to the children and

visitation issues. The court even noted that it had considered the children’s stated preference7

as to their living arrangements before reaching its best-interest determination. The trial court

weighed the evidence before it and determined that it was in the best interest of the children

to award primary custody of the children to Keith. As stated above, we give special deference

to the superior position of the circuit court to evaluate the witnesses, their testimony, and the

child’s best interest. Riddick, supra. We hold that on the facts before us and given our

deference to the trial court in these circumstances, the trial court’s decision was not clearly

erroneous.

D. Relocation

Robin asserts that she retained sole legal custody of the children and therefore had the

absolute right to relocate under our supreme court’s decision in Hollandsworth v. Knyzewski,

353 Ark. 470, 109 S.W.3d 653 (2003). As a result, she insists that the trial court erred in

refusing her request to relocate and in awarding custody to Keith. Because we affirm the trial

court’s decision to award custody to Keith, Robin’s relocation argument is moot.

7
The ad litem testified that the children spontaneously asserted their preference to live
with their mother. However, because of the circumstances surrounding the spontaneous
declaration, the ad litem believed that the children may have been coerced into making the
declaration.

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II. Posttrial Motions

We now turn to Robin’s appeal of the trial court’s posttrial rulings. Those issues suffer

from procedural difficulties. After the final order had been entered, Robin sought to have the

trial court recuse. On appeal, Robin spends the majority of her argument on the recusal issue.

She goes into great detail regarding how the judge’s alleged bias and impropriety affected or

could have affected his decision on the merits and the evidentiary matters leading up to his

custody determination.8 However, the posttrial motion to recuse only sought recusal; Robin

never requested a new trial or to have the custody award set aside on the grounds of judicial

bias or appearance of impropriety. Because she never requested that the custody award be

vacated or set aside due to bias, any discussion of recusal would have no effect on the custody

determination and would amount to an advisory opinion. 9 It is well settled that this court

does not render advisory opinions or answer academic questions. Wilson v. Pulaski Ass’n of

Classroom Teachers, 330 Ark. 298, 954 S.W.2d 221 (1997).

Finally, Robin devotes one paragraph to her remaining issues on appeal: the award of

attorney’s fees to opposing counsel and the ad litem; the order striking an affidavit in support

8
In her recusal argument, Robin alleges that the trial court erred in not allowing her
to present testimony of several witnesses at the hearing and alleges that the trial court’s failure
to do so violated her due-process rights. However, it does not appear from our review of the
record that Robin ever made these particular arguments below. It is well settled that only the
specific objections and requests made at trial will be considered on appeal. Johnson v. State, 303
Ark. 12, 792 S.W.2d 863 (1990); Shaw v. State, 299 Ark. 474, 773 S.W.2d 827 (1989).
Arguments not raised below, even constitutional ones, are waived on appeal. Tracy v. Dennie,
2012 Ark. 281, 411 S.W.3d 702.
9
“An advisory opinion is . . . an interpretation of the law without binding effect.”
Hartness v. Nuckles, 2015 Ark. 444, at 13, 475 S.W.3d 558, 567 (quoting Black’s Law
Dictionary, 35–36 (6th ed. 1990)).
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of the recusal motion; and the order denying her request to vacate the ad litem appointment.

She cites no facts or authority to support her arguments; in fact, she makes no independent

argument in her brief whatsoever other than to incorporate her trial motions and briefs by

reference. This is inadequate. Our supreme court has specifically stated that to allow counsel

to incorporate trial arguments by reference would eviscerate our rules regarding briefing

length and would render meaningless our holdings that we do not address arguments that are

not sufficiently argued or briefed to this court. See Ligon v. Stilley, 2010 Ark. 418, at 20, 371

S.W.3d 615, 632. As a result, we cannot reach these issues on appeal.

For the foregoing reasons, we affirm.

Affirmed.

GLADWIN and MURPHY, JJ., agree.

Law Office of Kathryn L. Hudson, by: Kathryn L. Hudson; and Pinnacle Law Firm,

PLLC, by: Matthew D. Campbell, for appellant.

Ballard & Ballard, P.A., by: Andrew D. Ballard, for appellee.

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