dissenting. appeal presents three related issues. First, did the trial court err when it found that Ms. Downum committed constructive fraud? Second, if the constructive-fraud finding was not clearly erroneous, did the trial court abuse its discretion by vacating a previous order that awarded custody of the parties’ son to Ms. Downum? Finally, did the trial court err by awarding custody of the child to Mr. Downum?
I dissent from the decision announced by the majority opinion because the trial court did not clearly err in determining that Ms. Downum committed constructive fraud. The trial court’s decision to vacate the previous custody award was not an abuse of discretion. And, the trial court’s decision to award custody to Mr. Downum was not clearly erroneous.
Background Facts
Ms. Downum filed for divorce against Mr. Downum on August 19, 2005. After Mr. Downum filed a pro se answer, Ms. Downum proposed and Mr. Downum signed a waiver of appearance and an agreed divorce decree on November 9, 2005, giving primary custody of Koel, their son who was born in August of 2002, to Ms. Downum. Mr. Downum testified that he was not sure whether to sign the waiver of appearance but did so, in part, because Ms. Downum told him that she would work with him regarding visitation. Pursuant to the precedent that Ms. Downum prepared and presented to the trial judge, Mr. Downum was to have standard visitation, including weekly mid-week visitation. In addition, the parties agreed that Ms. Downum was to check with Mr. Downum first if she needed a babysitter. A hearing was set for December 1, 2005.
Ms. Downum claims that she sent a “flurry ofblind” e-mails on or around November 20, 2005, to various employers in northwest Arkansas; Memphis, Tennessee; and Belle Chase, Louisiana (where her cousin and friends live). As the trial court observed, documentary evidence of only the Belle Chase e-mail was submitted as evidence (which was secured by Mr. Downum).
When Ms. Downum presented the precedent to the trial judge, she did not inform Mr. Downum or the trial judge that she was seeking a job outside of Arkansas. On December 1, the trial judge approved the parties’ agreement and entered the divorce decree. Ms. Downum claims that the next day, December 2, she received her first response from Fresenius Medical Care, in Belle Chase, with whom she ultimately accepted employment. Ms. Downum moved to Belle Chase in January 2006 and has since lived there with her cousin.
Ms. Downum testified that the November 20 e-mail was of no consequence and that it was not important to inform Mr. Downum of the e-mail, even though he had previously signed the waiver and even though she admitted that she told Mr. Downum that she would work with him regarding visitation. Ms. Downum denied that she knew, prior to the divorce, that she would be moving. She admitted that she did not tell Mr. Downum before the divorce that she was seeking employment out of state or that she intended to move out of state, essentially because she did not know whether she would actually get a job out of state. However, she admitted that she knew it was a possibility that she might move out of state. She also admitted that if the situation had been reversed she would have expected to be informed that Mr. Downum had e-mailed a job inquiry to a prospective out-of-state employer.
Further, Ms. Downum admitted that she did not tell the trial judge on December 1 that she was actively seeking employment out of state because she “wasn’t seriously thinking about moving at that time” and did not seriously think about moving until she received a formal offer of employment. According to Ms. Downum, she did not decide until December 22 to move.
The majority opinion does not mention, but it is certainly relevant to our review, that prior to the custody hearing, Mr. Downum submitted requests for interrogatories, asking Ms. Downum in numerous and very explicit ways to specify the first date that she considered leaving the state and the first contact she had with Fresenius, regardless of who initiated the contact. Ms. Downum listed December 2 as her first contact date (the day after the divorce hearing), not the November 20 e-mail. She gave various explanations for this omission: that she did not know the date she sent her first e-mails; that, she thought the word “contact” meant “a two-way conversation”; and that she thought the question asked about when she actually spoke to Fresenius. Ms. Downum asserted that she thought the interrogatory that asked when she first had “any inclination whatsoever to leave” Arkansas “for any reason whatsoever” meant the date “there was a verifiable chance that there’s a possibility I could have a job with another company.”
Additionally, Ms. Downum admitted that she answered “Not applicable” and that she failed to list CareerBuilder in her response to an interrogatory that requested that she provide information on any employment agency or services that she had contacted within the past two years. She could not remember why she answered the interrogatory in that manner, but she believed that everything was “above board” and that she would not have felt deceived if she had been Mr. Downum.
Constructive Fraud
Constructive fraud is a breach of a legal or equitable duty which, irrespective of the moral guilt or the valid reason, the law declares fraudulent because of its tendency to deceive others; neither actual dishonesty or purpose nor intent to deceive is an essential element of constructive fraud. See South County, Inc. v. First Western Loan Co., 315 Ark. 722, 871 S.W.2d 325 (1994). Here, the trial court weighed the credibility of the witnesses, applied the correct law concerning constructive fraud, and objectively determined that Ms. Downum committed constructive fraud because she had an equitable duty to inform Mr. Downum of any material change regarding the custody of Koel prior to entry of the divorce decree — specifically, her efforts to obtain employment outside Arkansas — and she failed to do so. See, e.g., Dickson v. Fletcher, 361 Ark. 244, 206 S.W.3d 229 (2005) (holding that an ex-husband had a legal and an equitable duty to disclose, at the time of the divorce, the fact that he owned stock, and setting aside the marital property provision of the divorce decree because he failed to do so).
The trial court here had ample evidence to support the conclusion that Ms. Downum breached an equitable duty to notify Mr. Downum and the court that she was seeking employment outside the area that was reasonably accessible for Mr. Downum insofar as the visitation and related baby-sitting care aspects of the divorce decree were concerned. It was undisputed that Ms. Downum presented Mr. Downum with a waiver of appearance and proposed divorce decree on November 9, 2005. The proposed decree called for Ms. Downum to have primary custody, and specified that Mr. Downum would have mid-week visitation on one evening each week. The proposed decree also stated that “Should Plaintiff [Ms. Downum] have the need for baby sitting at any time, she shall first check with Defendant to see if he is willing to watch after the child, prior to make (sic) alternative baby-sitting arrangements.” (Emphasis added.) Thus, the trial court’s constructive fraud finding raises a fundamental issue: whether preparation and tender of the proposed divorce decree, with its custody and visitation provisions, created an equitable duty on the part of Ms. Downum to disclose her intention and efforts to locate and obtain employment in places where the visitation and baby-sitting provisions of the proposed decree would be materially affected, if not altogether frustrated.
Before today’s decision, most attorneys and trial judges would consider this question easy to answer with a resounding affirmative. After all, Rule 11 of the Arkansas Rules of Civil Procedure states that:
The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact . . . , and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.” (Emphasis added.)
Furthermore, it is common knowledge throughout the Arkansas bench and bar that judges and attorneys rely on the good faith and accuracy of matters related in pleadings in uncontested matters. Therefore, the view that Ms. Downum somehow owed no duty to disclose her efforts to find employment in Belle Chase, Louisiana — a locale removed from Northwest Arkansas by a ten- hour drive — runs counter to established law and common knowledge within the legal community. It is remarkable, to put it mildly, that the majority opinion appears to disregard a duty that, until now, has been a hallmark of our litigation process.
That said, the trial court was obliged to determine whether the facts preponderated in favor of a finding that Ms. Downum contemplated employment away from the area where Mr. Downum could exercise the visitation and baby-sitting provisions of the decree that she represented to him that she would present to the trial court, and that she would honor if the trial court entered it. Ms. Downum’s evasive and inconsistent responses to Mr. Downum’s discovery requests about her employment efforts certainly qualified as competent proof about whether she was forthright. The trial judge was able to observe her demeanor while hearing her testimony. Regardless of whether one agrees with the trial judge’s conclusion, he had a far superior opportunity to assess Ms. Downum’s demeanor and weigh her credibility than does any member of this or any other court. In fact, our supreme court and this court have often declared that we accord deference to the superior position of trial judges in determining the credibility of witnesses and the weight to be given their testimony. See Hunt v. Perry, 357 Ark. 224, 162 S.W.3d 891 (2004); Word v. Remick, 75 Ark. App. 390, 58 S.W.3d 422 (2001).
It must necessarily follow, therefore, that the majority has concluded that the trial court erred as a matter of law in finding that Ms. Downum committed constructive fraud. I cannot subscribe to that conclusion, nor do I find any basis in the record for it. Ms. Downum’s failure to mention the November 20 e-mail, her misleading and evasive answers to the interrogatories, and her failure to inform Mr. Downum or the trial court before the December 1 hearing that she was seeking employment out of state constitute relevant and probative evidence that supports the trial judge’s conclusion, as does the fact that Ms. Downum sought a job in a city in another state where she had existing ties after she persuaded Mr. Downum not to contest custody, but before the divorce decree was entered. Moreover, Ms. Downum knew that Mr. Downum signed the waiver of appearance and agreed to custody in the expectation that Koel would live at least close enough that Mr. Downum could exercise mid-week visitation and could serve as Koel’s first babysitter.
The majority labels Ms. Downum’s withholding of information relevant to the custody determination “an innocent misrepresentation by silence” and concludes that the evidence merely demonstrated the “possibility” that she might relocate, which was not a material fact or present circumstance that she was obliged to disclose. In so doing, the majority improperly assumed the role of a factfinder and overturned the trial court’s credibility determination regarding the nature ofMs. Downum’s intent and when it was formed. No member of our court heard the evidence or otherwise is qualified to reach a reliable conclusion about whether Ms. Downum’s silence was innocent or intentional. We certainly are not more likely to reach a reliable — let alone accurate — conclusion about her intent. Yet, the majority now overturns the credibility assessment made by the only judge who both heard the evidence and personally observed Ms. Downum when she testified about why she did not inform Mr. Downum or the Court about her intention to seek out-of-state employment.
The majority also misapplies the law concerning constructive fraud, and presumes that because this case did not involve actual fraud, it is unaffirmable. However, constructive fraud does not require actual dishonesty or purpose or the intent to deceive, but focuses on the conduct’s tendency to deceive others. See South County, Inc., supra. The tendency to deceive is undeniable where Ms. Downum secured a waiver of appearance from Mr. Downum by assuring him that she would work with him on visitation (which she did not do), and thereafter presented the precedent providing Mr. Downum mid-week visitation and the right to be Koel’s first babysitter, while actively exploring and soliciting employment opportunities in locations that made the mid-week visitation and baby-sitting provisions useless.
Simply put, Ms. Downum’s conduct in concealing from Mr. Downum that she was seeking a job out of state, while inducing him to agree to the custody provision in the initial divorce decree, deceived Mr. Downum and the trial judge. Both believed that Ms. Downum would live close enough so that Mr. Downum could exercise mid-week visitation and serve as Koel’s first babysitter. Thus, solely due to Ms. Downum’s concealment, the trial judge entered the divorce decree and original custody order without knowing relevant facts relating to Koel’s best interests — the terms of the divorce decree implied to the trial judge that he was sanctioning a custody arrangement that did not require Koel to commute twenty-hours round-trip to visit his father.1 If we do not affirm on these facts, no trial judge will ever be able to grant a motion to vacate in similar situations except where actual fraud is shown.
The majority emphasizes that Mr. Downum did not propound discovery or make inquiries as to Ms. Downum’s living arrangements before the divorce hearing. But there is an obvious reason why he did not do so — Ms. Downum induced him into entering a waiver of appearance. She agreed to visitation terms — including mid-week visitation — that favored him. Nothing about the visitation proposal implied that Mr. Downum and Koel would have to negotiate a twenty-hour round trip. Mr. Downum was not required to ask Ms. Downum if she intended to move out of Arkansas where she clearly represented to him that she would not behave in a manner that would frustrate the express visitation terms that she proposed. The very essence of fraud is that the party committing the fraud acts in a manner that precludes a reasonable person from making inquiry or otherwise discovering the fraud. In the simplest terms, given Ms. Downum’s conduct, Mr. Downum had no reason to propound discovery or inquire where Ms. Downum would live.
The Order Vacating the Custody Decree
The majority does not deny that a trial court has the authority to vacate an order or decree procured by fraud, be the fraud actual or constructive. Obviously, fraudulently procured relief is voidable, and one would hope that courts would not hesitate to vacate orders that are procured through fraud. The decision announced today will do nothing to strengthen the resolve of trial judges to invalidate orders procured through constructive fraud, however, and can be expected to invite disingenuous conduct by more litigants who are willing to gamble that their disingenuity will either go undiscovered or produce no adverse consequences.
The Custody Award to Mr. Downum
Finally, I would affirm the trial court’s grant of custody to Mr. Downum. Once the trial court vacated the prior custody award, it properly treated the issue as an initial custody determination. Koel was approximately four-and-a-half years old at the time of the hearing. For most of his life, he either lived in the home with both parents or split his time between them in two-week increments. The trial court found that both Mr. and Ms. Downum were good parents, but concluded that it was in Koel’s best interest to be placed with Mr. Downum because Koel’s extended maternal and paternal family reside in northwest Arkansas, which is approximately ten hours (one way) from Belle Chase. The record supports that Koel spent a lot of time with Mr. Downum’s mother, in particular. On these facts, the trial court did not err in awarding Mr. Downum custody.
I respectfully dissent, and am authorized to announce that Judges Robbins and Miller join this opinion.
It should not be overlooked that the presumption favoring a custodial parent’s relocation did not apply prior to the divorce hearing, because Ms. Downum had not yet been named the custodial parent. Notwithstanding the majority and concurring opinions’ suggestion to the contrary, I do not seek to circumvent or alter the law established in Hollandsworth v. Knyzewski, 353 Ark. 470, 109 S.W.3d 653 (2003). I would simply point out that the law according to Hollandsworth is what causes Ms. Downum’s failure to disclose her plans to move out of state to be so egregious. Ms. Downum knew, or at least is charged with knowing, the law. The law pursuant to Hollandsworth is that, upon becoming the custodial parent, Ms. Downum gained the very significant presumption that her move to southern Louisiana was in the best interest of her child. Consequently, it was to her strategical benefit for the decree of divorce to be entered before she sought leave to remove the child out of state.