I agree with the decision to reverse the trial court’s change-of-custody order. I also agree that the trial court clearly erred in finding that Ms. Downum had an equitable duty to notify Mr. Downum of her intent to move to Louisiana prior to the entry of the decree. But I write separately to express my concern that the trial court’s decision circumvented the law of Hollandsworth v. Knyzewski, 353 Ark. 470, 109 S.W.3d 653 (2003), and that today’s decision by this court impermissibly expands the Hollandsworth factors to be considered in relocation cases.
The non-custodial parent moving for a modification of custody has the burden of showing a material change of circumstances sufficient to warrant a change in custody, Middleton v. Middleton, 83 Ark. App. 7, 113 S.W.3d 625 (2003), and the relocation of a primary custodian and children alone is not such a material change in circumstances. Hollandsworth, supra. Under Hollandsworth, there is a presumption in favor of relocation for custodial parents with primary custody, and the noncustodial parent has the burden to rebut the presumption. Id. 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.
353 Ark. at 487, 109 S.W.3d at 663-64.
In his petition to vacate the divorce decree and award of custody, Mr. Downum alleged that Ms. Downum had fraudulently induced him into not contesting the divorce and custody award by not informing him that she would move, had a desire to move, or was entertaining employment options that would require relocation. He prayed that the divorce decree be vacated and that he be awarded custody. Alternatively, he asked that the decree be modified to award him custody based upon a material change in circumstances and the child’s best interests. Ms. Downum denied the allegations regarding fraudulent inducement, and she asserted that there was no legal or factual basis for vacating the divorce decree. She affirmatively stated that there had been no material change in circumstances that would justify a change in custody, citing the Hollandsworth holding that relocation alone does not constitute a material change in circumstances.
I agree with Ms. Downum’s argument on appeal that the allegation of constructive fraud as a basis for vacating the previous decree and making an initial determination of custody was merely a means of circumventing the law of Hollandsworth. This is a simple relocation case in which Ms. Downum, the custodial parent, was entitled to a presumption in favor of relocation with the child. Mr. Downum failed to rebut that presumption because he presented no material change of circumstance to justify a change of custody.
I strongly disagree with the majority’s implication that, had Ms. Downum decided to relocate before the circuit court entered its decree, the trial court would have been justified in vacating the agreed decree and award of custody to Ms. Downum. To hold that a divorcing spouse, who may subsequently become the custodial parent, has a duty to disclose his or her relocation plans to the other spouse before the entry of a divorce decree will open a Pandora’s box in future cases, requiring the relocating party to prove, as a condition of relocating, the wholly irrelevant factor of when he or she made the decision to relocate. This is not the law under Hollandsworth and we should not make it the law in this case.
The record of this case contains absolutely no evidence that rebuts the Hollandsworth presumption in favor of Ms. Downum’s right to relocate with her child to Louisiana, and I would reverse the trial court’s decision on that basis alone, without regard for when she made the decision to do so.