Cite as 2017 Ark. App. 405
ARKANSAS COURT OF APPEALS
DIVISIONS I, II & III
No. CV-16-897
Opinion Delivered June 21, 2017
NATHAN COOPER APPEAL FROM THE PULASKI
APPELLANT COUNTY CIRCUIT COURT,
FOURTEENTH DIVISION
V. [NO. 60DR-12-954]
SHANNON KALKWARF (COOPER) HONORABLE VANN SMITH, JUDGE
APPELLEE
SUBSTITUTED OPINION ON
GRANT OF REHEARING;
REVERSED AND REMANDED
WAYMOND M. BROWN, Judge
On March 29, 2017, we issued an opinion that reversed the trial court’s order granting
appellee’s petition to relocate with the parties’ minor son. Appellee subsequently filed a
petition for rehearing, asking this court to reconsider the decision. We accept her invitation,
grant the rehearing petition, and issue this substituted opinion.
Appellant Nathan Cooper appeals the order of the Pulaski County Circuit Court
granting appellee Shannon Kalkwarf’s request to relocate with the parties’ minor son. For
reversal, appellant contends that the trial court erroneously applied the presumption in favor
of relocation as set out in Hollandsworth v. Knyzewski.1 We agree and reverse and remand.
1
353 Ark. 470, 109 S.W.3d 653 (2003).
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The parties were divorced by decree on July 9, 2012. At the time of the divorce, the
parties had one minor son, B.C. (DOB 5-31-09). The parties entered into an agreement
regarding custody, which was incorporated, but not merged, into the decree. According to
the agreement, appellee was to have “primary physical custody” of B.C. and the parties were
to share “joint legal custody.” Appellant was granted “reasonable and liberal visitation with
the minor child,” which included appellant having the “minor child at a minimum of three
nights out of every seven days with two days being consecutive.” The holiday visitation
schedule alternated each year. Appellant was granted visitation on Father’s Day yearly, and
appellee was granted yearly visitation on Mother’s Day. The visitation schedule was to
continue during the summer; however, both parties were allowed “two non-consecutive
weeks of vacation visitation during the summer” upon “reasonable notice” to the other party.
Each party agreed to contact the other parent for overnight childcare before a third party or
non-relative was to care for the child. As for relocation, the agreement stated, “[n]either party
shall move the minor child out of the State of Arkansas without express consent in writing
from the other party and/or an order from the Court authorizing the removal of the child
from Arkansas.” Appellant was ordered to pay monthly child support in the amount of $470.
He was also required to provide a copy of his W-2 and state and federal personal income tax
returns to appellee within thirty days of receipt and/or filing. Appellee was to continue to
maintain, at her expense, health insurance for B.C. However, the parties were to equally
divide any non-covered medical, dental, orthodontic, or prescription-drug expenses.
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Appellee remarried on December 30, 2015. She filed a petition for modification on
January 15, 2016, alleging that there had been a material change in circumstances and that it
would be in B.C.’s best interest if appellee was allowed to relocate with him. Appellee listed
several reasons why she should be allowed to relocate with B.C., including the fact that she
had recently remarried, and her husband had accepted a residency in trauma surgery in
Houston, Texas. She also stated that she intended to advance her career as an APN in cancer
prevention. Appellant filed a response to appellee’s petition on February 23, 2016, asserting
that he and appellee had shared joint custody of B.C. since the divorce, that he had almost
daily contact with B.C., and that he was a “strong presence in [B.C.’s] daily life.” He agreed
that there had been a material change in circumstances, but he denied the remaining
allegations in appellee’s petition and asked the court to deny it. Appellant filed a motion for
joint custody on June 3, 2016. He alleged that there had been a material change in
circumstances that required “modification of the custodial arrangement and visitation schedule
to a joint custodial schedule and such is in the best interest of the minor child.” Appellant
asked that appellee’s petition for relocation be denied and that a joint-custody award be
entered. Appellee filed a reply to appellant’s motion on June 14, 2016, essentially denying the
material allegations.
The court held a hearing on the parties’ petitions on July 11, 2016. Appellee testified
that her husband, Kyle Kalkwarf, had accepted a fellowship in trauma surgery at UT Houston.
She stated that he started his fellowship on July 1 and that he was currently living in Houston.
She asked the court to allow her to relocate to Houston so that she and B.C. could join Kyle.
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She said that she and appellant shared joint legal custody of B.C. She testified that she and
appellant modified the visitation schedule so that she had B.C. eight out of fourteen nights
and appellant had B.C. six out of fourteen nights.2 She stated that they received the same
number of days with B.C. as required by the decree but that they swapped some days so that
B.C. would not have to go back and forth as often. She said that she was formerly employed
at UAMS as a nurse practitioner and as a teacher in the College of Nursing at UAMS. She
stated that she had recently ended that employment in contemplation of moving to Houston.
She testified that she had recently been offered a position at the School of Nursing in Houston
as an instructor. She stated that this position included a twenty-one percent increase in salary.
She said that they had found a rental home in close proximity to the hospital as well as the
elementary school B.C. would be attending. She testified that Kyle was required to complete
two years of a trauma fellowship, and that after that, there was a “possibility” that they would
return to Arkansas if he was hired by UAMS.
Appellee stated that she and appellant had a “pretty good working relationship” in
regard to custody. However, she stated that they also had issues. She testified that B.C.’s
Arkansas family included paternal and maternal grandparents, aunts, uncles, and cousins. She
stated that Kyle had some extended family in Texas, including his parents who live in San
Antonio. She said that B.C. attended Christ the King, which is a private school, for
kindergarten and first grade. She stated that tuition was $6,000 a year and that it was expected
2
Appellant would have him five nights, then appellee would have him five nights, then
he would go back to appellant for a night before returning to appellee for three nights.
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to increase to $6,400 the next school year. Appellee stated that she was solely responsible for
B.C.’s tuition, although she and appellant both discussed where B.C. would attend school.
She said that after-school care cost her an additional $2,500 a year. She stated that she
purchased uniforms for B.C. for both her home and appellant’s home. She acknowledged
that appellant paid his child support and that he did provide some clothing for B.C.
However, she maintained that it was she who provided the majority of the clothing for B.C.
She stated that appellant was responsible for B.C.’s haircuts but that there had been instances
in which he sought reimbursement from her. Appellee stated that appellant had not shared
in the out-of-pocket medical, dental, etc. expenses as ordered by the decree. However, she
also stated that she had only asked him once, and he failed to do so. Appellee said that she
was active in coming to parties and other activities at B.C.’s school. She stated that before
her petition for modification, appellant’s participation had been very minimal. She testified
that after the divorce, appellant told her that he would not contribute to a college fund for
B.C. because he was still paying off his student loans. Appellee stated that Kyle’s parents had
started a college fund for B.C. and had placed $64,000 in it. She said that she had a master’s
degree and that her new job in Houston would allow her to continue her education. She
stated that B.C. attended camp during the summer and that she paid the weekly tuition even
if B.C. was with appellant that week because appellant had never volunteered to pay it.
Appellee had formulated a visitation schedule in case she was allowed to relocate with
B.C. This schedule included the following: (1) she would pay for B.C. to fly to Arkansas
once a month; (2) appellant could fly to Texas once a month, at his expense; (3) they would
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rotate a week at Christmas; (4) appellant would have B.C. every spring break; and (5)
appellant would have B.C. for six weeks in the summer, with appellee coming maybe two
weekends during this time. According to this schedule, appellee stated that appellant would
be able to see B.C. 110 days out of the year. She acknowledged that this was a cut from the
156 days a year appellant had been awarded per the decree. Appellee stated that she began
keeping a calendar of the amount of time each of them spent with B.C. in 2014 and that from
June 2014–January 2015, she had B.C. sixty-five percent of the time to appellant’s thirty-five
percent. She stated that in 2015, she had B.C. sixty percent of the time to appellant’s forty
percent.
Appellee stated that she had known Kyle for four years and that they dated three-and-
a-half years before they were married. She said that B.C. has a great relationship with Kyle
and that, based on B.C.’s memory, Kyle had always been there. She testified that B.C. is
aware that appellant is his father and that B.C. loves appellant. She stated that she was not
seeking reimbursement for her out-of-pocket expenses. She said that she just wanted to be
allowed to relocate with B.C.
On cross-examination, appellee acknowledged that the divorce decree did not require
anyone to pay for college tuition or to reimburse the other party for expenses not specifically
listed in the decree. She stated that although she and appellant had some communication
issues,3 she never petitioned the court to intervene. Appellee stated that she and appellant
3
Some of the issues included: (1) appellant did not send a jacket to school one day, (2)
appellant did not respond at all about spelling tests, (3) appellant missed one parent-teacher
conference, and (4) appellant picked B.C. up and only texted that he was doing so instead of
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would share B.C.’s first day of school and Christmas together with B.C. regardless of who had
him for visitation. She said that the only extended family they had in Texas was Kyle’s
parents but that her parents were “contemplating maybe in the future getting a place in
Houston.” She stated that B.C. had never stayed the night with Kyle’s parents but that Kyle’s
mother, Sharon, had kept B.C. for a few hours at a time.
Appellee stated that when she and appellant were divorced in 2012, they felt it was
better for both parents to have more regular contact with B.C. due to his young age. She said
that she owns a home in Little Rock, but that she pays mortgage to Kyle’s parents. She stated
that she wanted to relocate to Houston so that B.C. would not have to rotate between so
many homes. She testified that in two years they would either be in the Houston area or back
in Arkansas. Appellee said that she would not have been able to keep her job at UAMS even
if she was not allowed to relocate because she would be traveling back and forth between
Houston and Little Rock. She stated that she believed it was in B.C.’s best interest that she
be allowed to relocate. She said that Kyle could be making about $200,000 as a general
surgeon right now but that the fellowship would allow him to make double that amount. She
admitted that one reason she wanted to relocate was because appellant said that he could not
pay for B.C.’s college but that Kyle was “willing to step in on that.” She opined that
appellant and B.C. had a “good relationship” but that it was not “exceptional.”
calling.
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Kyle testified that he was a surgeon and that he was currently involved in a fellowship
in trauma and critical care surgery in Houston. He stated that after his fellowship he could
“pretty much work anywhere, but focus primarily on areas that are large enough to sustain
a trauma population or a critical care population of patients to take care of.” He said that he
has known appellee for four years and that he has known B.C. for “probably six-months less”
than he has known appellee. He described his relationship with B.C. as very good. He stated
that he chose a residence based on its proximity to where B.C. would be attending school.
He said that his parents lived in San Antonio and that B.C. “loves them very much.” He said
that B.C. being able to move to Houston had both positive and negative implications. Kyle
stated that he once had a mortgage through his parents and that when he sold his home, he
paid off the mortgage and transferred it to appellee’s home. He said that he was renting a
home in Houston because he was unsure of his permanency in Houston. He stated that B.C.
had seen the home and the school he would be attending in Houston.
On cross-examination, Kyle stated that he applied “broadly” for fellowships beginning
as early as April 2015. He said that he was in a relationship with appellee when he was
sending applications to various institutions. He admitted that he could not tell the court
where he would be in two years because it all depended on the hiring process. He stated that
he earned a salary of $50,000 as a resident at UAMS and that his fellowship salary would be
$65,000, resulting in an eighteen-percent increase. Kyle stated that he would be able to afford
the home he chose in Houston with his salary. He said that he was financially committed to
the home for two years because he had signed a two-year lease.
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Jeannie Thompson, appellant’s girlfriend’s mother, testified that she considered B.C.
one of her grandchildren. She stated that she met B.C. approximately two months after
appellant started dating her daughter, Jessica, and that they had spent a lot of time together
as a family since then. She opined that appellant placed spending time with B.C. at the top
of his list. She also stated that B.C. got along well with Jessica’s thirteen-year-old daughter,
B.T.
Appellant testified that the visitation schedule was changed to give B.C. more
consistency during the school week. He stated that the communication between him and
appellee had decreased since appellee filed her petition. He said that when he and appellee
first were divorced, they would spend at least the mornings of the major holidays together
doing things as a family. Appellant stated that he worked next door to B.C.’s school, which
allowed him “additional opportunities” to see B.C. He said that he began keeping up with
the times he was actually able to see and spend time with B.C. According to his table,
between August 2014–December 2014, he was able to see and spend time with B.C. sixty-
one percent of the time. In 2015, appellant was able to see and spend time with B.C. sixty-
three percent of the time.4 And he was able to see and spend time with B.C. sixty-five
percent of the time between January 2016–May 2016. He stated that he was present at ninety
percent of B.C.’s practices (baseball and/or soccer). He presented the court with milestone
photographs, including when B.C. was born, yearly first-day-of-school photos, and holidays.
4
This included being able to see B.C. eighty-one percent of the time in March and
seventy-seven percent of the time in April.
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He testified that his parents resided in Little Rock and that they had a great relationship with
B.C. He stated that his sister and her family also lived nearby and that B.C. was close to
them. He said that he participated as much as he could at B.C.’s school activities before
appellee filed her petition, but that since that time, he tries not to miss any opportunity to
spend time with B.C.
Appellant admitted that there was a time that he was “nickel-and-diming” appellee,
but he stated that it had stopped. He also admitted that appellee had purchased uniforms for
his house, and he said that he was “very much appreciative.” He stated that he did not realize
it was “such an issue for her.” He said that he and appellee jointly decided that B.C. should
attend Christ the King, but that he was never asked or told that he would be responsible for
half of the tuition. He stated that he assumed some of the child-support payments were going
toward the school’s tuition. He testified that he packed lunches for B.C. everyday. He stated
that he filed the motion for joint custody because he wanted the court to adopt the practices
he and appellee had lived by for the past two years. He said that he was not trying to take
custody of B.C. away from appellee, but that he wanted appellee’s petition for relocation to
be denied. He stated that he was concerned about the mental and academic strain relocation
would place on B.C. Appellant testified that he did not believe appellee would move if she
was not allowed to take B.C. with her.
On cross-examination, appellant stated that he wanted to keep the visitation
arrangement he and appellee currently had. He testified that he was awarded joint legal
custody in the decree based on the parties’ agreement. He also said that they agreed that
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appellee should be the primary physical custodian. Appellant testified that to him, joint legal
custody meant that he had every legal right to B.C. as appellee had and that they would have
an equal amount of time with B.C. He testified that it was explained to him at the time of
divorce that appellee would be the primary physical custodian because she “had one more day
a week” than he had with B.C. He said that he understood that “if there was an argument
that [they] couldn’t settle, that [appellee] got the last vote” as the primary physical custodian.
However, he stated that this did not mean relocation. Appellant reiterated that he believed
that his child support was being used to help pay for tuition at Christ the King. He stated that
he purchased several sets of uniforms for B.C. to have at his house in addition to those
purchased by appellee. He opined that he had met all of the responsibilities associated with
having B.C. He stated that he was opposed to B.C. relocating with appellee because
relocation would prevent appellant from maintaining the same “loving relationship” he
currently shared with B.C.
The court entered an order on August 4, 2016, finding that appellee’s relocation was
controlled by Hollandsworth,5 not Singletary v. Singletary.6 According to the court, it was
unclear whether the parties had joint custody as contemplated by Singletary,7 or if one party
5
Supra.
6
2013 Ark. 506, 431 S.W.3d 234.
7
Id.
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enjoyed sole or primary custody as contemplated by Hollandsworth.8 The order stated in
pertinent part:
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; Jones, 2015 Ark. App. 468
at 10. In both cases, the court looked to the contract 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.
8
Supra.
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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.
....
54. The Plaintiff’s Petition for Modification is granted, and the Defendant’s Motion
for Joint Custody is denied.
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.
The court put a visitation schedule in place that it felt would be in B.C.’s best interest. This
schedule offered appellant more time with B.C. than the schedule appellee had proposed.9
The court noted that the visitation schedule proposed by appellee would dramatically reduce
9
Appellee proposed a visitation schedule of 110 days a year, if appellant traveled to
Houston once a month. Otherwise, visitation could drop as low as eighty-three days in a
year.
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the 219 days a year that it found appellant was able to see B.C. Appellant filed a timely notice
of appeal. This appeal followed.
We review traditional cases of equity de novo on the record.10 While we will not
reverse factual findings by the trial court unless they are clearly erroneous, a trial court’s
conclusion of law is given no deference on appeal.11
Appellant argues that the trial court erred by applying the presumption in favor of
relocation as set out in Hollandsworth.12 More specifically, appellant contends that the
appropriate line of cases should have been Singletary13 and Jones14 because this was a joint-
custody case. We agree.
In Singletary, our supreme court held that in joint-custody relocation cases, the focus
is whether or not there has been a material change in circumstances and the best interests of
the children. As in Singletary, the trial court was faced with ambiguous language: on one hand
the parties are to share joint legal custody; and on the other hand, appellee is named the
primary custodian. When a contract is ambiguous on its face, we resolve the ambiguity by
10
Williams v. Nesbitt, 2012 Ark. App. 408, 421 S.W.3d 320.
11
Id.
12
Supra.
13
Supra.
14
2015 Ark. App. 468, 469 S.W.3d 402 (where this court affirmed the trial court’s
reliance on Singletary when denying appellant’s petition to relocate.).
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looking at other parts of the contract and the parties’ testimony about what they intended, as
well as their conduct.15
Here, appellant testified that he understood joint custody to mean that he and appellee
would have an equal amount of time with B.C. He stated that as it was explained to him,
appellee was designated the primary physical custodian because B.C. was in her custody one
more day out of a week than in appellant’s custody. He presented the court with evidence
showing that he actually spent over sixty percent of the days out of the year with B.C.,
although the decree called for only approximately forty-three percent. Appellee presented
evidence that B.C. was with her over sixty percent of the time; however, she did not contest
the amount of time appellant claimed to have spent with B.C. Additionally, both parties
testified that they would spend time as a family unit during major holidays, as well as
milestone occasions, after the divorce. Based on this evidence, we hold that the court
improperly relied on Hollandsworth.16 Therefore, we reverse and remand to the trial court for
further proceedings consistent with this opinion.
Reversed and remanded.
GRUBER, C.J., and GLOVER and HIXSON, JJ., agree.
VIRDEN, J., concurs.
ABRAMSON, KLAPPENBACH, WHITEAKER, and VAUGHT, JJ., dissent.
15
Rockefeller v. Rockefeller, 335 Ark. 145, 980 S.W.2d 255 (1998).
16
Supra.
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BART F. VIRDEN, Judge, concurring. I join the majority and write a somewhat
reluctant concurrence. The trial court clearly put a great deal of thought into its decision, and
its frustration was clear from the findings in the order. I share that frustration and acknowledge
the validity of the position taken by the dissent. Inasmuch as this is a 5–4 decision, I fully
expect the Arkansas Supreme Court to review the matter and settle what I and the trial court
perceive as a confusing and amorphous body of law regarding joint custody and relocation of
parents.
I am writing to bring attention to an ambiguity in our caselaw regarding “joint custody.”
Historically, custody of minor children was placed with one parent and the other parent
received visitation. As the family dynamic evolved, our courts and laws struggled to keep
pace. Terms like “joint legal custody” and “primary physical custody” began to appear in
divorce decrees with little or no guidance to the meaning of those terms. As a result, we do
not have a hard-and-fast rule to determine whether the parties had true joint custody. Our
legislature has determined that it is public policy of our state to favor joint custody. See Ark.
Code Ann. § 9-13-101(a)(1)(A)(iii).
The “Hollandsworth presumption” was born from the traditional custody/visitation
arrangement wherein the parent who has custody, has, in essence, been raising the child and
will continue to do so, albeit in a new location. But not all cases are clear-cut regarding
whether true joint custody exists. As expressed by the trial court, determining whether joint
custody exists in cases such as this one is quite difficult. The logic for not applying the
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Hollandsworth presumption in a case that is so very nearly true joint custody is sound. The trial
court concluded that
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 parent wishing to relocate and
put more emphasis on what is in the best interest of the child in making the decision.
I am not so constrained, and I believe the trial court was right on the mark with the
suggestion. I am convinced that no consideration was given to the overriding concern of the
best interest of the child, which has been the polestar in every type of case dealing with the
care and custody of children. See Stehle v. Zimmerebner, 375 Ark. 446, 454, 291 S.W.3d 573,
579 (2009) (“It is well settled in Arkansas that a judicial award of custody will not be modified
unless it is shown that the circumstances have changed such that a modification of the decree
would be in the best interest of the child.”); Chastain v. Chastain, 2012 Ark. App. 73, at 12,
388 S.W.3d 495, 502 (When the trial court does not specifically state that relocation was in
the children’s best interests, if our de novo review shows that the lower court considered the
appropriate factors relevant to best interest, an appellate court may conclude that the evidence
supported the decision.); Bowen v. Bowen, 2012 Ark. App. 403, 421 S.W.3d 339 (In
grandparent visitation cases there is a rebuttable presumption that the custodian’s denial or
limitation of visitation is in the best interest of the child.); Hamman v. Ark. Dep’t of Human
Servs., 2014 Ark. App. 295, 435 S.W.3d 495 (Parental rights must give way to the best interest
of the child when the natural parents seriously fail to provide reasonable care for their minor
children.).
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LARRY D. VAUGHT, Judge, dissenting. I dissent from the substituted opinion
on the petition for rehearing. Based on our standard of review, I would affirm the circuit
court’s order.
The majority briefly states the standard of review in child-custody cases. I will
elaborate. We have traditionally reviewed matters that sounded in equity de novo on the
record with respect to factual questions and legal questions. Hollandsworth v. Knyzewski,
353 Ark. 470, 475, 109 S.W.3d 653, 656 (2003). We have stated repeatedly that we will
not reverse a finding by a circuit court in an equity case unless it was clearly erroneous. Id.,
109 S.W.3d at 656. Further, we give due deference to the superior position of the circuit
court to view and judge the credibility of the witnesses. Geren Williams v. Geren, 2015 Ark.
App. 197, at 9–10, 458 S.W.3d 759, 766. This deference is even greater in cases involving
child custody, as a heavier burden is placed on the trial judge to fully use his or her powers
of perception in evaluating the witnesses, their testimony, and the best interest of the
children. Id. at 10, 458 S.W.3d at 766. De novo review does not mean that the findings of
fact of the circuit judge are dismissed out of hand and that the appellate court becomes the
surrogate circuit judge. Stehle v. Zimmerebner, 375 Ark. 446, 455–56, 291 S.W.3d 573, 580
(2009). What it does mean is that a complete review of the evidence and record may take
place as part of the appellate review to determine whether the trial court clearly erred in
either making a finding of fact or in failing to do so. Id. at 546, 291 S.W.3d at 580.
In an eleven-page fifty-six-paragraph order, the circuit court made detailed factual
findings, from its “superior position” to evaluate the witnesses and the best interest of B.C.
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and explained why Shannon had primary custody of him. Accordingly, it proceeded to
apply the Hollandsworth factors, and it found that relocation was in B.C.’s best interest. In
reversing the circuit court’s order, the majority did not address any of these findings, much
less explain why those findings were clearly erroneous. In one paragraph of a fifteen-page
opinion, the majority simply cherry-picks a small portion of the testimony and
independently weighs it in a way that supports its preferred outcome. This was hardly an
appropriate application of our required standard of review. The majority simply “dismissed
out of hand” the circuit court’s findings of fact and acted as the “surrogate trial judge.”
Stehle, 375 Ark. at 455–56, 291 S.W.3d at 580.
Based on Singletary v. Singletary, 2013 Ark. 506, 431 S.W.3d 234, and Jones v. Jones,
2015 Ark. App. 468, 469 S.W.3d 402, the circuit court considered the language of the
parties’ divorce decree and found it ambiguous. Then, based on Singletary and Jones, the
circuit court looked to the conduct of the parties and their testimony about what they had
intended the custody arrangement to be. In doing so, the court found that (1) Nathan had
custody of B.C. 42.9 percent of the time, which was not a 50/50 split between the parties;
(2) Nathan was ordered to pay child support; (3) Nathan’s understanding of the phrase
“primary physical custody” meant that Shannon had the final say on matters and that she
had one more day per week with B.C. than Nathan did; (4) Shannon enrolled B.C. in
private school and paid for it; (5) Shannon bought the majority of B.C.’s clothes; (6)
Shannon paid for B.C.’s haircuts; and (7) Shannon took B.C. to all of his doctor’s
19
Cite as 2017 Ark. App. 405
appointments. Based on these findings, the circuit court found that the parties did not
share joint custody of B.C.1
In reversing this finding, the majority ignores the findings made by the circuit court
and its superior position to evaluate the witnesses. Rather than explain any clear error in
the circuit court’s findings, the majority makes new findings and weighs them in favor of
Nathan.
While we might have decided this case differently had it been tried to us, our role
on appellate review is not to retry a case. As appellate judges, we are permitted to review,
under appropriate standards, but not retry, cases that come before us. We do not make
findings of fact. We do not determine the credibility of witnesses. Such findings and
determinations are rightly made by our circuit courts. See Harrison v. Harrison, 102 Ark.
App. 131, 139, 287 S.W.3d 601, 608 (2008). The circuit court made substantial findings of
fact to support its decision. These findings have a firm basis in the evidence and are not
clearly erroneous. Accordingly, our standard of review dictates that we affirm the circuit
court’s finding that the parties did not share joint custody.2
ABRAMSON, KLAPPENBACH, and WHITEAKER, JJ., join in this dissent.
1
On de novo review, additional evidence supports the circuit court’s finding. Shannon
testified that she had custody of B.C. 60 percent of the time in 2014 and 2015. Nathan filed
a motion for joint custody, and at trial testified, “I would have loved to have equal custody.”
2
The significance of the standard of review is demonstrated in our holdings in Singletary
and Jones, the cases on which the majority relies. In those cases, we affirmed the circuit courts’
findings of joint custody. In fact-intensive cases like the instant case, our standard of
review—in which we give due deference to the circuit court to fully use its powers of
perception in evaluating witnesses, their testimony, and the best interest of the child—makes
all the difference.
20
Cite as 2017 Ark. App. 405
LaCerra, Dickson, Hoover & Rogers, PLLC, by: Lauren White Hoover, for appellant.
D. Paul Petty, for appellee.
21
Cooper v. Kalkwarf
Court: Court of Appeals of Arkansas
Date filed: 2017-06-21
Citations: 2017 Ark. App. 405, 525 S.W.3d 508, 2017 Ark. App. LEXIS 419
Copy CitationsCombined Opinion