Cooper v. Kalkwarf

Cite as 2017 Ark. 331
SUPREME COURT OF ARKANSAS
No. CV-17-298

Opinion Delivered: November 30, 2017

NATHAN COOPER
APPELLANT APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
V. FOURTEENTH DIVISION
[NO. 60DR-12-954]
SHANNON KALKWARF (COOPER)
APPELLEE HONORABLE H. VANN SMITH,
JUDGE

REVERSED AND REMANDED;
COURT OF APPEALS’ OPINION
VACATED.

COURTNEY HUDSON GOODSON, Associate Justice

Appellant Nathan Cooper appeals the Pulaski County Circuit Court’s order granting

appellee Shannon Kalkwarf’s petition to relocate with the parties’ minor son. For reversal,

appellant argues that the circuit court erred in applying the presumption in favor of

relocation as set out in Hollandsworth v. Knyzewski, 353 Ark. 470, 109 S.W.3d 653 (2003).

We vacate the court of appeals’ opinion, and we reverse and remand.

The parties were married on July 8, 2006. At the time of their divorce on July 9,

2012, they had one minor son, B.C. (DOB 5/31/09). The parties executed a written

custody, visitation, and property-settlement agreement that was incorporated, but not

merged, into the divorce decree. With regard to custody of B.C., the agreement stated that

the parties were to share “joint legal custody” but that appellee would have “primary
physical custody of the minor child, subject to the reasonable and liberal visitation” of

appellant. The agreement failed to define either term. The agreement further provided

that appellant would have visitation with B.C. “a minimum of three nights out of every

seven days with two days being consecutive.” Holiday visitation alternated between the

parties each year, and both parties were also granted “two non-consecutive weeks of

vacation visitation during the summer.” In addition, each parent agreed to contact the other

parent for overnight childcare before he or she sought child care from a non-relative third

party. The agreement stated that neither party was allowed to remove the child from the

state without the express written consent of the other party or a court order authorizing the

removal. Appellant was to pay child support of $470 a month based on his monthly income

of $2,600. Appellee was required to continue to maintain health insurance coverage for

B.C., and the parties were to equally divide any noncovered medical, dental, orthodontic,

or prescription-drug expenses.

Appellee remarried in December 2015, and on January 15, 2016, she filed a petition

for modification of custody. Appellee alleged that her husband had accepted a fellowship

in trauma surgery in Houston and that it would be in B.C.’s best interest for her to be

permitted to relocate with the child. Appellant filed a response to the petition on February

23, 2016, asserting that despite the language of the decree, the parties had shared joint

custody of B.C. and that appellee should not be entitled to a presumption in favor of

relocation. Appellant admitted that there had been a material change in circumstances

caused by appellee’s desire to relocate, but he denied that it was in B.C.’s best interest for

the petition to be granted.

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 On June 3, 2016, appellant filed a motion for joint custody, alleging that there had

been a material change in circumstances since the entry of the divorce decree warranting a

modification of the custodial arrangement and visitation schedule. He asserted that the

parties spent equal time with B.C. and that he had almost daily contact with the child. Thus,

he indicated that it was in B.C.’s best interest for both of his parents to remain in Little

Rock and continue with the joint-custodial relationship that the parties had enjoyed since

the divorce. He requested that the decree be modified to reflect the parties’ practice, that

appellee’s petition for relocation be denied, and that a joint-custody award be entered.

Appellee filed a response to appellant’s motion generally denying the allegations.

A relocation-and-custody hearing was held on July 11, 2016. Appellee testified that

she had filed her petition requesting to relocate with the parties’ son because her new

husband, Kyle Kalkwarf, had accepted a fellowship in trauma surgery in Houston that would

enable him to double his salary from $200,000 to $400,000. Appellee stated that, following

the fellowship, there was a possibility that the family would return to Little Rock. She

testified that they had found a rental home within walking distance of an elementary school

that was ranked as one of the top ten public schools in Texas. Appellee indicated that she

was a nurse practitioner and that she had taught at the College of Nursing at the University

of Arkansas Medical School until May 2016. She stated that she had been offered a similar

position in Houston with a higher salary and that she would also be able to pursue a doctoral

degree. Appellee testified that, although B.C. had no extended family in Texas, Kyle’s

parents lived in San Antonio, and B.C. had a close relationship with them. Appellee also

indicated that Kyle’s parents had started a college fund for B.C. and had promised to match

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any future contributions made by her and Kyle. Appellee admitted that the majority of

B.C.’s extended family lived in Arkansas, including both sets of grandparents, with whom

B.C. had a very close relationship.

Appellee testified that she was named as the primary physical custodian in the divorce

decree and that the parties’ conduct since then had been consistent with the decree.

Although appellee had custody of B.C. for four nights each week while appellant had

custody for three nights under the terms of the decree, appellee stated that they had modified

this arrangement to a 5–5–1–3 schedule to provide more stability during the school week.

Appellee testified that under this revised schedule, she still had custody of B.C. for eight

days out of every fourteen-day period, while appellant had custody for six days. However,

appellee stated that appellant had also asked her to keep B.C. on days when he was supposed

to have custody. According to the calendar she had kept since June 2014, appellee indicated

that she had custody of B.C. approximately sixty percent of the time.

Appellee indicated that the parties had a good relationship when it came to

coparenting, although there had been a few issues. For instance, appellant had not

reimbursed appellee for his half of B.C.’s medical expenses that were not covered by

insurance, and he had never contributed to B.C.’s private-school tuition. Appellee further

testified that she had been responsible for buying B.C.’s clothing and school uniforms,

although she admitted that appellant had recently bought several sets of uniforms. Appellee

stated that appellant had rarely gone to B.C.’s medical appointments unless she specifically

requested that he accompany them. Appellee also testified that appellant had been very

condescending and rude in some of their prior communications.

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 Appellee testified that, despite her issues with appellant, he is a good father, and it is

very important for B.C. to continue to have appellant in his life. She proposed a schedule

whereby appellant would come to Houston one weekend each month to visit B.C., and

she would pay for herself and B.C. to fly to Little Rock one weekend per month. Appellee

also indicated that appellant could have one week with B.C. at Christmas and six weeks in

the summer. She admitted that this would reduce appellant’s visitation from 156 days a year

to 110. However, appellee testified that B.C. and Kyle also have an exceptional relationship

and that it is in B.C.’s best interest to relocate with them.

Kyle testified that he has a very loving relationship with B.C. and that they participate

in many activities together. According to Kyle, the relocation presents several advantages

for B.C., such as a better school and more opportunities for sports and other hobbies. Kyle

testified that, after his two-year fellowship, he would most likely choose a trauma-surgeon

position in Little Rock, San Antonio, or Houston.

Jeannie Thompson, the mother of appellant’s girlfriend, testified on behalf of

appellant. Thompson stated that appellant and her daughter, Jessica, had been dating for

more than one year and that she considers B.C. one of her grandchildren. According to

Thompson, appellant is very affectionate and supportive of B.C. and “puts him at the top

of his list.” Thompson further stated that B.C. and Jessica’s thirteen-year-old daughter adore

each other.

Appellant testified that B.C. does well with the parties’ current 5–5–1–3 visitation

schedule. Appellant indicated that, under the terms of the divorce decree, he was allowed

only two consecutive days with B.C. each week, so he typically had the child each weekend

5
and for one additional night during the week. However, appellant stated that the parties

altered the visitation schedule after B.C. started school to provide more consistency.

Appellant testified that he has a good relationship with appellee, even though he admitted

that he had said some things that he regretted and that he had “nickel and dimed” her in

the past. He indicated that, especially right after their divorce, he and appellee had “an open

door policy” and had often spent holidays together with B.C. However, appellant stated

that their communication with each other had decreased since appellee had filed her petition

to relocate.

Appellant stated that he worked next door to B.C.’s school and that this afforded

him additional opportunities to see his son. He introduced a calendar in which he had

marked the days that he had seen B.C., and, according to appellant’s calculations, he had

spent time with his son on 60%-65% of the days between August 2014 and May 2016.

Appellant testified that he was very concerned about not being able to maintain this type of

relationship with B.C. if B.C. were to relocate with appellee. He stated that he was not

trying to take custody away from appellee. Instead, he wanted the circuit court to deny

appellee’s request to relocate with B.C. and for the parties to continue their current custody

arrangement. Appellant further stated that B.C. has a close relationship with his parents and

with his aunt, uncle, and cousins who live in Little Rock. Although appellant admitted that

he had become a more involved father since appellee filed the petition to relocate, he

indicated that this was because he wanted to maximize his opportunities with B.C. When

the circuit court questioned appellant as to how it would affect B.C. if the court denied

6
appellee’s petition to relocate, appellant testified that appellee had indicated that she would

not choose to move in that event.

On cross-examination, appellant stated that the parties had agreed in the divorce

decree to share joint legal custody, with appellee being the primary physical custodian.

Appellant testified that he understood joint legal custody to mean that he had the same legal

rights to B.C. as appellee. He indicated that appellee was named as primary physical

custodian in the decree because she had custody for one more day a week than he did.

Appellant further testified that appellee’s having primary physical custody meant that if there

was a disagreement that the parties could not settle, then she would have the last vote.

However, he stated that this did not include the issue of relocation.

Following the hearing, the circuit court entered an order on August 4, 2016, granting

appellee’s petition to modify custody and to relocate with B.C. and denying appellant’s

motion for joint custody. The court stated that one of the primary issues to be resolved was

whether the parties shared joint custody, such that the relocation request would be

controlled by Singletary v. Singletary, 2013 Ark. 506, 431 S.W.3d 234, or whether one of

the parties had sole or primary custody and was entitled to the presumption set forth in

Hollandsworth, supra. The circuit court made the following findings in its order:

23. As noted above, the parties’ Agreement states “wife will have primary physical
custody of the minor child, subject to the reasonable and liberal visitation with
husband as set out below in this Agreement. The parties will share joint, legal
custody.” The Agreement fails, however, to define the meaning of primary physical
custody.

24. In both Singletary and Jones courts were confronted with similar situations where
language was ambiguous. Singletary, 2013 Ark. 506 at 9, 431 S.W.3d 234; Jones, 2015
Ark. App. 468 at 10, 469 S.W.3d 402. In both cases, the court looked to the contract

7
between the parties in its entirety, the testimony of the parties about their intent, and
the conduct of the parties. Id.

25. The parties initially agreed that “Husband will have the minor child at a
minimum of three (3) nights out of every seven (7) days with two (2) days being
consecutive.” The Agreement is ambiguous, however, as it does not specify which
parts of the three (3) days the Defendant will have as his visitation, particularly when
he only has two (2) days consecutively. Still, the division of time was clearly not
50/50.

26. Both parties testified that they later mutually agreed to a modification of the
Agreement arriving at the aforementioned 5–5–1–3 visitation rotation they currently
practice.

27. This 5–5–1–3 rotation unambiguously placed the child with the Defendant six
(6) days out of fourteen (14) or approximately 42.9% of the time.

28. The Agreement further provides that Defendant will pay child support of $470.00
per month to the Plaintiff.

29. The Defendant testified that the phrase “primary physical custody” meant the
Plaintiff had the final say on matters such as medical decisions. The Defendant also
testified that Plaintiff was the primary physical custodian because she had B.C. one
more day per week than he did.

30. The Plaintiff testified that she enrolled B.C. in private school and bore the cost
of the same, that she bought the majority of B.C.’s clothes, paid for B.C.’s haircuts,
and took B.C. to all of his doctor’s appointments.

31. Given the Agreement in its entirety, the intent of the parties, and the conduct of
the parties the Court finds that the parties did not enjoy true joint custody.

32. Where parties do not share joint custody, one party must necessarily be the
primary custodian. In the present case, even with the modification to a 5–5–1–3
schedule, the Plaintiff remains the primary custodian of B.C. as was set out in the
Decree.

33. Accordingly, the Court utilizes the Hollandsworth factors to decide the issue of
relocation and presumes that it would be in B.C.’s best interest to relocate with the
Plaintiff. The Court considers the Defendant’s case as an attempt to rebut that
presumption.

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 The circuit court then went on to discuss and make detailed findings regarding each

of the Hollandsworth factors. Based on its findings, the court indicated that it could not

conclude that the relocation was against B.C.’s best interest. However, the court modified

appellee’s proposed visitation schedule to ensure that appellant’s time with B.C. was not as

dramatically reduced. In addition to two weekends of visitation each month, the court

awarded appellant additional holiday visitation and nearly all of B.C.’s summer vacation.

The circuit court further lowered appellant’s child-support obligation to $225 a month to

offset his travel costs and abated the child support by 50 percent during summer visitation.

The circuit court concluded its order by noting its frustration with the current state of the

law on relocation:

55. The Court notes that the area of relocation law is not clear, and that there appears
to be no bright line test as to when Hollandsworth applies or when Singletary and Jones
apply, other than when the facts and language in the custody order are unambiguous.
As in the present case, and in other cases this Court has heard, the facts dictate which
test to use, and the decision to use either Hollandsworth or Singletary can drastically
affect the outcome. Often, the facts presented to the Court are so close that one or
two small details will push the Court to utilize one case over the other which can
change the outcome of the decision.

56. It is not this Court’s place to suggest a change in the relocation law, but it appears
that the better test would always place the burden on the party wishing to relocate
and put more emphasis on what is in the best interest of the child in making the
decision.

Appellant timely appealed the circuit court’s order to the court of appeals, which

reversed and remanded in a divided decision. Cooper v. Kalkwarf (Cooper), 2017 Ark. App.

405, 525 S.W.3d 508. Appellee filed a petition for review with this court, which we

granted. When we grant a petition for review, we treat the appeal as if it had been originally

filed in this court. Moore v. Moore, 2016 Ark. 105, 486 S.W.3d 766.

9
 Appellant argues on appeal that the circuit court erred by applying the Hollandsworth

presumption to appellee’s relocation petition. We review matters that sound in equity de

novo on the record with respect to factual questions and legal questions. Singletary, supra.

We will not reverse a finding of fact by the circuit court unless it is clearly erroneous. Id.

A finding is clearly erroneous when, despite supporting evidence in the record, the

reviewing court is left with a definite and firm conviction that a mistake has been

committed. Id. We also give due deference to the superior position of the circuit court to

view and judge the credibility of the witnesses. Id. This deference is even greater in cases

involving child custody, as a heavier burden is placed on the trial judge to use his or her

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

the children. McNutt v. Yates, 2013 Ark. 427, 430 S.W.3d 91.

In Hollandsworth, supra, this court announced a presumption in favor of relocation for

custodial parents with sole or primary custody, with the noncustodial parent having the

burden to rebut this presumption. We stated that relocation by a custodial parent is not, by

itself, a material change in circumstances justifying a change in custody. Id. We further

held that the polestar consideration in such determinations is the best interest of the child

and that the circuit court should consider the following factors: (1) the reason for relocation;

(2) the educational, health, and leisure opportunities available in the new location; (3) a

visitation and communication schedule for the noncustodial parent; (4) the effect of the

move on extended family relationships in the new location as well as in Arkansas; and (5)

the child’s preference, taking into account the child’s age and maturity, as well as the reasons

given by the child for the preference. Id.

10
 In Singletary, we explained that the Hollandsworth presumption does not apply when

the parents share joint custody of a child. Id. at 8, 431 S.W.3d at 239–40. In a joint-custody

arrangement where both parents share equal time with the child, there is not one parent-

child relationship to take preference over the other, and the Hollandsworth rationale is

inapplicable. Id. at 9. Instead, we held that the proper analysis for a change-in-custody

request due to the relocation of one parent in a joint-custody situation is the same as that

when relocation is not involved; the court must first determine whether a material change

in circumstances has transpired since the divorce decree and then whether the change in

custody is in the best interest of the child. Id.

In determining whether the circuit court erred by finding that appellee was entitled

to the Hollandsworth presumption under the facts in this case, we first look to the language

in the divorce decree, which incorporated by reference the parties’ agreement as to custody

and visitation. Our standard of review for issues of contract interpretation was set forth in

Singletary:

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. 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.

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Id. at 10, 431 S.W.3d at 240–41 (quoting Wal-Mart Stores, Inc. v. Coughlin, 369 Ark. 365,

371, 255 S.W.3d 424, 429 (2007) (internal citations omitted).

Here, the parties’ divorce decree stated in the section titled “Custody” that “Wife

will have primary physical custody of the minor child, subject to the reasonable and liberal

visitation with Husband as set out below in this Agreement. The parties will share joint

legal custody.” The “Visitation” section of the agreement provided that “Husband will

have reasonable and liberal visitation with the minor child as set forth herein. Husband will

have the minor child at a minimum of three nights out of every seven days with two days

being consecutive.”

The circuit court found that the phrase “primary physical custody” was not defined

in the decree and that the agreement was also ambiguous because it did not specify which

parts of the three days that appellant would have for his visitation. We agree with the circuit

court that the language in the parties’ agreement was ambiguous. In Singletary, we held that

the decree’s use of the terms “joint custody” along with “primary custody” was ambiguous

on its face. Here, as in Singletary, the decree states that the parties are to share joint legal

custody but that appellee is the primary physical custodian. The decree then awards

appellant nearly equal time with B.C. Thus, it is unclear from the language in the decree

whether the parties had “joint custody” such that the Singletary analysis would apply, and

the circuit court was correct in reviewing the parties’ subsequent statements and conduct.1

1
While appellant testified that he understood “primary physical custody” to mean
that appellee had the final vote in the event the parties disagreed on an issue, this
misunderstanding highlights the need for decrees, orders, and agreements regarding custody
to define terms such as “primary physical custody” and “joint legal custody” so that the

12
 The parties modified the visitation arrangement set forth in the decree to give more

consistency to B.C. during the school week, although they agreed that the ratio of time

spent with their son remained the same, with appellee having custody 42.9 percent of the

time. Although appellee testified that she had custody of B.C. on more days than were

provided in the decree, she did not refute appellant’s evidence that the time he had spent

with the child exceeded what was awarded in the decree. The circuit court also credited

appellant’s testimony in this regard, finding that he had some form of contact with B.C. on

at least 60 percent of the days in the year. The court further found that under appellee’s

proposed schedule if she were to relocate with B.C., appellant’s time with his son would be

drastically decreased from 156 days to as few as 83 days, a 47 percent reduction. Based on

its findings, the court stated that the relocation would adversely affect B.C.’s relationship

with his father, as well as with his extended family in Arkansas.

Despite its findings, the circuit court concluded that appellee was nonetheless the

primary custodian and entitled to a presumption in favor of relocation based on the fact that

the parties’ custodial arrangement was “not 50/50.” We disagree and take this opportunity

to clarify our prior holdings on this issue.

In Hollandsworth, supra, the mother who was seeking to relocate had been awarded

primary custody of the children, and the father was only entitled to visitation during one

half of the children’s free time on weekends, holidays, and summer vacation. Our adoption

of the Hollandsworth presumption in favor of relocation by the custodial parent was based on

intent and meaning of each phrase is clear to both the parties and the courts that must
interpret this language.

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the principle that “the custodial parent who bears the burden and responsibility for the child

is entitled to seek a better life for herself or himself and the children, as enjoyed by the

noncustodial parent.” Hollandsworth, 353 Ark. at 477, 109 S.W.3d at 658. We further noted

that, according to social-science research and literature, “what is good for the custodial

parent is good for the child.” Id. at 480, 109 S.W.3d at 653 (quoting Baures v. Lewis, 770

A.2d 214 (N.J. 2001)). As we then discussed in Singletary, supra, however, the rationale

behind Hollandsworth, which 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, simply does not apply to joint-

custody situations. Singletary, 2013 Ark. 506, at 8, 431 S.W.3d at 240.

Since Hollandsworth was decided in 2003, the typical postdivorce custodial

arrangement has evolved from a traditional custody situation, where one parent receives sole

or primary custody and the noncustodial parent receives weekend visitation, to a shared-

custody situation. This evolution is reflected in the 2013 amendment to our custody statute,

Ark. Code Ann. § 9-13-101(a)(1)(A)(iii), which provides that awards of joint custody are

now favored in Arkansas. See Act of April 11, 2013, No. 1156, §§ 1–3, 2013 Ark. Acts

4706–07.

However, shared-custody or co-parenting arrangements, such as the one here, have

also made it difficult for circuit courts to determine which analysis to apply to a relocation

request. This difficulty is evidenced by the circuit court’s frustration in this case. As the

circuit court here noted, it is often a difference of only one or two small details that persuades

a court to utilize either the Hollandsworth or the Singletary analysis, and thus, these small

14
factual distinctions can ultimately change the outcome of the court’s decision. Other state

courts have grappled with this issue as well, and the recent trend has been to impose a best-

interests test in all cases when considering a relocation application, regardless of whether

that parent is designated as the primary custodian or whether the parties equally share

custody. See Bisbing v. Bisbing, 166 A.3d 1155 (N.J. 2017) (noting that the majority of states,

either by statute or by case law, now impose a best-interests test rather than a preference or

presumption in favor of a primary custodian).

Despite this trend, we choose not to eliminate entirely the presumption in favor of

a sole or primary custodian that was announced in Hollandsworth, supra, because the rationale

supporting that decision remains persuasive in certain situations, such as in a traditional

custody arrangement. Accordingly, we specifically reject the one-size-fits-all suggestion

made by the circuit court in paragraph 56 of its order cited above. We instead clarify that

the Hollandsworth presumption should be applied only when the parent seeking to relocate

is not just labeled the “primary” custodian in the divorce decree but also spends significantly

more time with the child than the other parent. This standard preserves the rights of a primary

custodian when he or she has shouldered the vast majority of the responsibility of caring for

and making decisions on behalf of the child, and it also more accurately reflects the best

interest of the child, which is the polestar consideration in any custody decision. Stehl v.

Zimmerebner, 375 Ark. 446, 291 S.W.3d 573 (2009).

As the General Assembly has recognized, joint-custody arrangements cannot be

defined with mathematical precision. See Ark. Code Ann. § 9-13-101(a)(5) (Repl. 2015)

(defining joint custody as the “approximate and reasonable equal division of time with the child

15
by both parents . . . .” (emphasis added)). Thus, we do not attempt to oversimplify the

issue of relocation by imposing an arbitrary percentage of time that a parent must spend

with the child for the Singletary analysis to apply. Rather, by this opinion, we seek to

recognize the realities of modern parenting and to emphasize that a joint-custody

arrangement does not necessarily involve a precise “50/50” division of time. We further

note that parental influence and commitment, involvement in the child’s daily activities,

and responsibility for making decisions on behalf of the child are important factors in the

circuit court’s consideration of the relocation issue. As the Bisbing court noted, recent social-

science research has indicated that a close relationship with the parent of alternate residence

is of critical importance to a child’s well-being following a divorce. Bisbing, 166 A.3d at

1166. By limiting the Hollandsworth presumption to those situations where the child spends

significantly less time with the alternate parent, the disruptive impact that a relocation would

have on that relationship is minimized.

Here, both parties shared the responsibility for making decisions on B.C.’s behalf,

and each parent has a significant and meaningful relationship with the child. Under the

revised test discussed above, we conclude that the analysis set forth in Singletary, supra,

governs appellee’s relocation petition rather than Hollandsworth, supra. Accordingly, we

reverse the circuit court’s decision and remand for the court to apply this analysis to the facts

in this case.

Reversed and remanded; court of appeals’ opinion vacated.

KEMP, C.J., concurs.

BAKER, HART, and WYNNE, JJ., dissent.

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 JOHN DAN KEMP, Chief Justice, concurring. I join in the majority opinion.

Still, I question whether “it serves . . . the interests of the children [or] the ends of justice

to view relocation cases through the prisms of presumptions and threshold tests that

artificially skew the analysis in favor of one outcome or another.” Tropea v. Tropea, 665

N.E.2d 145, 151 (N.Y. 1996). Accordingly, I welcome the opportunity to consider whether

to abandon the presumption of relocation altogether.

JOSEPHINE LINKER HART, Justice, dissenting. After consideration of our

standard of review, I cannot say the circuit court’s finding was clearly erroneous. Therefore,

I must dissent.

To reiterate the majority, our standard of review for matters that sound in equity is

de novo on the record with respect to both factual questions and legal questions. Singletary

v. Singletary, 2013 Ark. 506, 431 S.W.3d 234. However, it is well settled that we will not

reverse a finding of fact by the circuit court unless it is clearly erroneous. Id. In legions of

cases this court has opined that for a trial court to be clearly erroneous, despite supporting

evidence in the record, the reviewing court must be left with a definite and firm conviction

that a mistake has been committed. Id. Further, we give due deference to the superior

position of the circuit court to view and judge the credibility of witnesses. Id. This deference

is even greater in cases involving child custody, as a heavier burden is placed on the trial

judge to use his or her powers of perception in evaluating the witnesses, their testimony,

and the best interest of the children. McNutt v. Yates, 2013 Ark. 427, 430 S.W.3d 91.

When applying this standard of review to the case before us, it is clear from the

record that the circuit court’s decision was made after careful and thoughtful deliberation.

17
At the conclusion of the hearing on July 11, 2016, the court stated, “There’s three cases that

we talked about today that give the Court some direction on what to rule – or how to rule,

and I’m going to take a little time and look at the decisions and then the facts, I’ll make a

decision.” On August 4, 2016, the court entered an eleven-page order explicitly explaining

its decision and why it had reached each of its findings. The details of the order indicate that

the circuit court exercised careful deliberation in evaluating all four witnesses’ testimony

and in reaching the conclusion that the Hollandsworth presumption applied and that

relocation was in the best interest of the child.1 Hollandsworth v. Knyzewski, 353 Ark. 470,

109 S.W.3d 653 (2003).

Although the appellant argues that the circuit court erred in applying the

Hollandsworth presumption, application of Singletary is correct only “when a change of

custody was sought in a joint-custody arrangement.” Singletary, supra.2 However, as the

court noted, “it is unclear whether the parties have ‘joint custody’ as contemplated under

Singletary or whether one party enjoys ‘sole or primary custody’ as contemplated under

Hollandsworth.” It was only after vigilant consideration of the wording of the original

agreement, the testimony from the parties about their intentions, and the lengthy testimony

1
Contrary to the assertions of the concurring opinion, Hollandsworth does nothing
more than place the burden on the noncustodial parent to establish that the move is not in
the best interest of the child.
2
When applying Singletary, “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 change of custody is in the best interest of the child.” Singletary, 2013 Ark. 506, 431
S.W.3d 234. Both appellant and appellee stated in their original filings that a material change
in circumstances had taken place, i.e. the appellee relocating to Houston, Texas, with their
minor child; however, the circuit court did not expressly make that finding.

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of all four witnesses regarding the conduct of the parties, that the court reached the decision

that the parties did not enjoy true joint custody as proposed in Singletary.

In support of its decision, the court laid out multiple factual findings that made this

case distinguishable from Singletary. In short, the division of time was not 50/50, the original

agreement provides for appellant to pay child support, and appellant testified that the phrase

“primary physical custody” meant the appellee had the final say on matters, and that phrase

was chosen because appellee had B.C. one more day a week than he did. Additionally,

testimony showed that appellee enrolled B.C. in private school and paid for the entirety of

his tuition, bought the majority of his clothes, paid for all of his haircuts, and took him to

all of his doctor’s appointments. Based on these findings, the court applied Hollandsworth and

carefully analyzed the five factors before determining that the relocation was in the best

interest of B.C. It is important to note that Hollandsworth and Singletary both lead to the

same analysis; the best-interest-of-the-child analysis. Even if, as the majority would suggest,

Singletary was applied, there is no evidence in the record that weighs against the circuit

court’s finding that relocation is in the best interest of the child.

Additionally, the court’s final statement of “frustration” should be considered in our

review for reversible error. While the court indicated “the area of relocation law is not clear,

and that there appears to be no bright line test as to when Hollandsworth applies or when

Singletary and Jones apply,” the court followed by stating, “As in the present case, and in

other cases this Court has heard, the facts dictate which test to use.” While there may be

perceived confusion over precedent in like cases, the circuit court clearly articulated its

understanding of the law and applied the facts to the law. Its written opinion evidences that

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there is no need for further clarification on the controlling law, and neither a mathematical

equation nor a set of dictatorial rules can or should become an easy solution. Ultimately, to

do so would eliminate the best interest analysis, which has long been the polestar for issues

involving child custody and relocation matters. Hollandsworth, supra. Furthermore, the clear

findings by the circuit court in this case can only lead to the conclusion that a reviewing

court cannot possibly be left with “a definite and firm conviction that a mistake has been

made.”

I respectfully dissent.

BAKER and WYNNE, JJ., join.

LaCerra, Dickson, Hoover & Roger, PLLC, by: Lauren White Hoover, for appellant.

D. Paul Petty, for appellee.

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