Cooper v. Kalkwarf

Cite as 2017 Ark. App. 200

ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-16-897

Opinion Delivered March 29, 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

REVERSED

WAYMOND M. BROWN, Judge

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.

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

1
353 Ark. 470, 109 S.W.3d 653 (2003).
Cite as 2017 Ark. App. 200

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.

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

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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.

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

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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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

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

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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

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

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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

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.

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
calling.

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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.”

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

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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.

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

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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.

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

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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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

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

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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

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

5
Supra.
6
2013 Ark. 506, 431 S.W.3d 234.
7
Id.
8
Supra.

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(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.

....

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

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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

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

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.
10
Williams v. Nesbitt, 2012 Ark. App. 408, 421 S.W.3d 320.
11
Id.
12
Supra.

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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

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

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.).
15
Rockefeller v. Rockefeller, 335 Ark. 145, 980 S.W.2d 255 (1998).

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milestone occasions, after the divorce. Based on this evidence, we hold that the court

improperly relied on Hollandsworth.16

Although we hold that the trial court erred in relying on Hollandsworth,17 this does not

conclude our inquiry. We must now determine whether the trial court’s result was correct,

albeit for the wrong reason. We hold that it was not. Under Singletary,18 a parent wishing

to relocate a child in a joint-custody situation must first show that there has been a material

change in circumstances. Appellee failed to show or effectively plead a material change in

circumstances when she filed her petition to relocate. She relied on things such as: (1) she had

remarried, and her husband had accepted a residency in trauma surgery in Houston; (2) she

could advance her career, which would afford additional financial stability; (3) appellant had

informed her that he would not assist in B.C.’s college education or expenses associated with

college; (4) appellant had exhibited poor morals; (5) appellant provided only the bare

minimum for B.C.; and (6) she and her husband could provide a moral, secure environment

for B.C. There were other things listed in the petition; however, they seem to have been

included as part of the Hollandsworth factors.19 The testimony at the hearing and the evidence

presented did not amount to proof that there had been a material change in circumstances.

16
Supra.
17
Id.
18
Supra.
19
Opportunities available to B.C. in Houston, presence of extended family in Texas,
exceptional relationship between B.C. and Kyle, safety of the community in which they will
reside.

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The trial court seemed to hint to this fact in the order when it stated that “the decision to use

Hollandsworth or Singletary could drastically affect the outcome” of a relocation case. Because

appellee failed to prove that there had been a material change in circumstances, we reverse.

Reversed.

GLOVER and HIXSON, JJ., agree.

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

D. Paul Petty, for appellee.