dissenting. I respectfully dissent from the majority’s position because I believe that the appellee, Charles Sill, failed to present sufficient evidence to rebut the presumption in favor of appellant’s relocation under Hollandsworth v. Knyzewski, 353 Ark. 470, 109 S.W.3d 653 (2003). I would therefore reverse and remand.
Following a hearing in January 2005, the court found appellant Tisha Sill to be in contempt for not paying certain financial obligations imposed upon her by the divorce decree and for her alleged failure to comply with the court’s standard child-visitation order. Those findings are not appealed. The court also denied appellant’s petition to relocate herself and her children to Miami, Oklahoma, expressing its belief that her move to Miami was motivated primarily by her intention to further burden appel-lee in the exercise of his visitation rights and to alienate him from his children.
I agree with the appellant that the evidence in this case was insufficient to rebut her presumptive right to relocate under Hollandsworth, supra. I am disappointed that the trial court and the majority have chosen to disregard the dictates of that decision. In the oral recitation of her findings following the hearing, the trial judge stated:1
I know it is difficult and frankly I don’t think it is best for the children to be in Miami. So I am denying the petition to relocate and I am denying the petition to change custody and [appellant] is going to find herself a way to get back to this area, back to Benton County, so [appellee] can enjoy the visits he had with his children as scheduled, so he can go to school and participate in their lunch time, or he can go to school for extracurricular activities. He has been robbed of that, and I see absolutely no good reason why [appellant] moved away from here except to impose that burden on him and attempt to alienate his children.
I first note that in Hollandsworth, supra, our supreme court pronounced “a presumption in favor of relocation for custodial parents with primary custody,” holding that “the noncustodial parent should have the burden to rebut the relocation presumption” and that “the custodial parent no longer has the obligation to prove a real advantage to herself or himself and to the children in relocating.” Id. at 485, 109 S.W.3d at 663. The trialjudge’s finding that there was “no good reason” why appellant moved away clearly ignores this holding.
Simply put, primary custodial parents are no longer required to come up with “good” reasons or any reasons why they desire to relocate themselves and their children. They are presumptively entitled to relocate, subject to the right of the non-custodial parent to rebut that presumption with proof that the move would be detrimental to the interests of the children.
Except to complain that his scheduled visitation privileges were inconvenienced by appellant’s eighty-five-mile move, appel-lee put on no evidence that was inimical to appellant’s presumptive right to relocate. There was no evidence presented that the move would be detrimental to the children. The trial judge opined that appellant’s $12,000 annual income reduction showed that her move to Miami did not improve her financial situation, reasoning, therefore, that appellant must have “moved to Miami and changed jobs for the sole purpose of making it difficult for [appellee] to have contact with his children.”2 However, there was no evidence that the children’s lifestyle had been negatively affected by the reduced income and there was evidence that the cost of living in Miami was less than in Rogers. Furthermore, since Hollandsworth relieves appellant, as the custodial parent, of the obligation to prove a real advantage to herself and her children in relocating, she. was not required to show that she would benefit financially from the move or, for that matter, that her financial situation would not be negatively impacted by the move.
The only reason expressed by the trial judge in her oral recitation of findings for the denial of appellant’s petition to relocate was that appellant had “no good reason” for the move and that her sole motive was to deprive appellee of his right “to enjoy the visits he had with his children as scheduled, so he can go to school and participate in their lunch time, or he can go to school for extracurricular activities.” Similarly, the court’s written order stated that appellant’s motive to relocate was “for the sole purpose of thwarting [appellee’s] visitation with his minor children.”
A custodial parent’s presumptive right of relocation is hollow indeed if it is rebutted by mere evidence that the non-custodian cannot as conveniently eat lunch with his children at school or attend their soccer games and other extracurricular school activities. As our supreme court said in Hollandsworth, supra, “Divorce, without exception, transforms the relationship between divorced parents, as well as between the parents and their children,” noting that “[w]ithin four years of a divorce, one-fourth of all custodial mothers will move to a new location, and one out of every five Americans change residences each year.” Id. at 476, 109 S.W.3d at 657. It is difficult for me to imagine a relocation of any distance by a custodial parent that does not, to some degree, impair, inconvenience, or interfere with the visitation preferences or privileges of the non-custodial parent. If such impairment, inconvenience, or interference with visitation is a sufficient basis to deny the relocation, then our supreme court might as well overrule Hollandsworth, abolish the relocation presumption, and return to the days of Staab v. Hurst, 44 Ark. App. 128, 868 S.W.2d 517 (1994), when it was the custodial parent’s burden to prove that relocation would result in' a “real advantage” to the custodial parent and the children.
In Hollandsworth, supra, our supreme court held that “relocation alone is not a material change of circumstances” that will sustain a denial of a custodial parent’s presumptive right of relocation. Id. at 485, 109 S.W.3d at 663. In recognition of that holding, the trial judge in the present case, although finding that a material change of circumstances had arisen from appellant’s interference with appellee’s visitation rights, then found that a change of custody was not in the children’s best interests, but nonetheless forced appellant to return to Arkansas with her children3 so that appellee could enjoy visitation with his children “as scheduled.” In its written order, the court even ordered appellant to appear at a hearing three and a half weeks later to report to the court her progress in returning to Arkansas.
The trial court expressed its doubts as to the credibility of appellant’s testimony relating to her motives for moving to Miami, Oklahoma. However, as already noted, under Hollandsworth, supra, the custodial parent need not prove a real advantage to herself and the children in relocating, and the burden is on the non-custodial parent to rebut the relocation presumption with evidence that the relocation would be detrimental to the best interests of the children. When called as an adverse witness by appellee, appellant testified that she decided to move to Miami because that is where her family is from, that living near her extended family made her life easier, that she had obtained a teaching job there, and that her living expenses there were less. Appellee, whose burden it was to prove that the move was detrimental to the welfare of the children, did not offer any proof in rebuttal to appellant’s reasons for moving. In fact, the evidence offered by appellee established that both appellant and appellee were originally from Miami, Oklahoma, that they had moved to Arkansas only five years earlier, and that their parents and other extended members of both families still lived in Miami. Notwithstanding the total absence of any proof to the contrary, the trial court announced that “from watching her testify and watching the demeanor of the parties and witnesses on the stand, I am of the belief that [appellant] moved to Miami and changed jobs for the sole purpose of making it difficult for [appellee] to have contact with his children.”
To begin with, I do not understand what is not to believe about the preference of a divorced woman with two young children to live near her family. But more importantly, appellant was not required to prove that any real advantage would accrue to her or her children in making the move. Furthermore, the issue is not whether appellant offered credible reasons for her wish to relocate, but whether appellee offered proof to rebut the presumption that she could relocate for no reason at all. In my opinion, he did not.
In Hollandsworth, the supreme court set forth five matters that the trial court should consider in making its relocation determination, matters that the trial court here, with exception of the first one (i.e., the reasons for the relocation), completely ignored. As to the appellant’s reasons for relocating, the trial court concluded, in the complete absence of any evidence, that appellant’s “sole” motive for relocating was to thwart appellee’s exercise of visitation. The trial judge set forth no analysis whatsoever of the second through fifth of the Hollandsworth matters.4 Most significantly, although the judge expressed, as her only reason for denying relocation, that appellant was motivated solely by a desire to thwart appellee’s visitation rights, she gave no consideration to the third matter (i.e., the visitation and communication schedule of the non-custodial parent) or to the supreme court’s instructive language in Hollandsworth, supra, that the “advantages of the move should not be sacrificed solely to maintain the ‘same’ visitation schedule where a reasonable alternative visitation schedule is available.” Id. at 481, 109 S.W.3d at 661 (quoting Cooper v. Cooper, 491 A.2d 606 (N.J. 1984)). The court in Hollandsworth, supra, also noted that “maintenance of a reasonable visitation schedule by the non-custodial parent remains a critical concern, but in our mobile society, it may be possible to honor that schedule and still recognize the right of the custodial parent to move.” Id. at 481—82, 109 S.W.3d at 661 (quoting Holder v. Polanski, 544 A.2d 852 (N.J. 1988)). Here, even though the parties would have lived less than one-hundred miles apart had relocation been allowed (instead of the thirty miles apart they lived in Arkansas), the trial judge made no effort to fashion an alternative visitation schedule that might have accommodated the interests of both parties or at least diminished the inconvenience to appellee. Instead, the court ordered that appellee’s visitation would be granted according to “the Court’s Standard Visitation Schedule,” which was attached as an exhibit to the order, refusing to even allow the parties to vary from the “standard” schedule by agreement.5
I do not agree that a trial court has fulfilled its obligation under Hollandsworth by summarily announcing, without supporting evidence, that a custodial parent’s relocation was intended to thwart a non-custodial parent’s visitation rights, but failing to give any consideration to fashioning an alternative visitation schedule that would have allowed reasonable visitation while still recognizing the right of the custodial parent to move.
The majority’s affirmance of the trial court’s decision appears to arise, first, from a misunderstanding of appellant’s arguments on appeal, and secondly, from a misapplication of the supreme court’s decision in Hollandsworth. For example, appellant does not argue, as the majority contends, “that she was denied the benefit of [the relocation] presumption because the trial court found that [appellee] rebutted the presumption.” Rather, appellant argues in her brief, quite clearly I believe, that she “was denied the presumption provided to custodial parents in relocation cases” because “there was insufficient evidence presented by Mr. Sill to rebut this presumption.” While purporting to recognize that, under Hollandsworth, the burden is on the non-custodial parent to rebut the custodial parent’s presumptive right to relocate, and that the custodial parent is not required to prove that any real advantage will accrue to herself or himself and tíre children in relocating, the majority, under the guise of de novo review, makes findings that the trial court did not make and essentially concludes that the trial court should be affirmed because: (1) appellant did not prove that her financial situation would not be impacted by the relocation; (2) appellant did not prove that the relocation would make it easier to benefit from the financial and moral support of her family in Miami; (3) appellant did not prove that the relocation would afford her daughters an opportunity to become better acquainted with family members in Miami because they were already well acquainted as a result of frequent visits to Miami; and (4) appellant did not prove that the Miami schools offered greater educational opportunities and extra-curricular programs than the Rogers schools. What the majority refuses to acknowledge is that appellee, who had the burden of proof, offered no evidence whatsoever that appellant’s relocation would be detrimental to the children’s interests, relying instead solely on his evidence that his visitation rights were going to be inconvenienced by appellant’s relocation.
In Hollandsworth, supra, our supreme court boldly realigned Arkansas with the states that recognize that a custodial parent, who bears the burden and responsibility for the children, should have the same right of mobility as non-custodial parents so as to enable custodial parents to also seek a better life for herself or himself and the children. The trial judge, who, as noted, is the same trial judge who was reversed in Hollandsworth, has not applied Hollandsworth here; and, regrettably, this court’s refusal to reverse the trial court only serves to dilute Hollandsworth and return Arkansas to the days of Staab, supra, when the custodial parent desiring to relocate was obligated to prove that a real advantage would accrue to him or her and to the children from the relocation. In Hollandsworth, the supreme court expressly overruled Staab.
Viewing all of the evidence in this case, I am left with a definite and firm conviction that the trial judge made a mistake in denying appellant’s petition to relocate with her children to Oklahoma. For this reason, I would reverse the trial court’s decision, and I am authorized to state that Judge Baker joins in this dissenting opinion.
The trial judge in the case at bar, the Honorable Xollie Duncan, is the same trial judge whose decision to deny a relocation petition was reversed by our supreme court in Hollandsworth, supra.
While expressing concern about appellant’s $12,000 income reduction that accompanied her move to Miami, the trial court does not appear to have considered that appellant was employed under contract as a teacher with the Miami School District, which she would be required to breach, and that she would be returning to Arkansas without employment.
In the oral presentation of her findings, the trial court stated that “where I am having the biggest problem is trying to decide if I can force [appellant], because that is what it is going to take, to comply with the court’s order without taking the kids out of the home.”
The five matters, which have become generally known in the case law as “the Hollandsworth factors” are recited in the majority opinion and, for brevity’s sake, will not be repeated here.
In her oral recitation of findings, the court stated that “the standard visitation is going to be pursuant to the schedule ..., and I am not going to leave it up to these parties to agree to something different, because they won’t.”