Bishop v. Singletary

ROBIN F. WYNNE, Judge. 1,Amalie (“Amy”) Bishop appeals from an order of the Lonoke County Circuit Court granting sole custody of the parties’ minor daughter to her ex-husband, appel-lee Joseph Singletary. She argues that the trial court erred by not analyzing the case as required by the holding in Hollandsworth v. Knyzewski, 353 Ark. 470, 109 S.W.3d 653 (2003). We reverse and remand the order of the circuit court. The parties were married on February 14, 1998, and were divorced via a decree entered on April 21, 2010. The parties have one child, C.S., who was born in 2007. Regarding custody of C.S., the decree states that “[t]he parties shall have joint custody of the minor child with [Amy] having primary custody. Child support and visitation shall be in accordance with the settlement agreement attached hereto and incorporated herein as if set out word-for-word.” The parties’ stipulation and property-settlement agreement states that 12“the parties shall have joint legal custody of the parties’ minor child ... with [Amy] being the primary physical custodian.” The agreement further states that, unless agreed upon otherwise, the parties were to alternate custody of the minor child on a weekly basis. The agreement contains no provision for child support. Amy filed a motion for change of child custody and support on April 19, 2011. In the motion, she alleged that a material change in circumstances had occurred since the decree was entered because her current spouse was being transferred to Fort Worth, Texas, in May 2011. She requested that she be granted sole custody of the child, subject to liberal visitation by Joseph. Joseph responded and counterclaimed, seeking sole custody of the child. He also filed a motion for a finding of contempt in which he alleged that Amy had relocated to Texas without the circuit court’s permission and that she had violated the exchange-of-custody terms set out in the decree. The parties attended mediation prior to the hearing and reached an agreement that the visitation for the noncustodial parent would be reduced from two weeks per month to one week per month. The hearing on the motions before the circuit court was held on April 11, 2012. At the hearing, Amy and her husband, Gerald Bishop, testified that his new position in Texas had a higher salary, which would allow her to be a stay-at-home mother to C.S. and C.S.’s half-siblings, which they believed would be best for the family. Both Amy and Joseph testified that there were no disagreements with the custody arrangement prior to Amy’s relocation. Joseph testified that he understood what a custodial parent was at the time he signed the settlement agreement. Amy argued at the hearing that she should receive the | ¡¡presumption in favor of relocation by a custodial parent set out in Hollandsworth, 353 Ark. 470, 109 S.W.3d 653. Joseph argued that Hollandsworth did not apply because the parties had a true joint-custody arrangement. The attorney ad litem for C.S. agreed with Joseph and recommended that he be given custody of C.S. On May 8, 2012, the circuit court entered an order in which it found that the parties had joint custody of C.S., also found that Amy’s relocation constituted a material change in circumstances, and awarded sole custody of the child to Joseph. The circuit court did not apply Hol-landsworth in making its decision. This appeal followed. We review equity cases de novo, but we will reverse only if the trial court’s findings were clearly erroneous or clearly against the preponderance of the evidence. Ford v. Ford, 347 Ark. 485, 65 S.W.3d 432 (2002). A finding is clearly erroneous when the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Id. We give due deference to the trial judge’s superior position to determine the credibility of the witnesses and the weight to be given their testimony. Id. Since the question of the preponderance of the evidence turns largely upon the credibility of the witnesses, we defer to the superior position of the trial judge to evaluate the witnesses, their testimony, and the child’s best interest. Word v. Remick, 75 Ark. App. 390, 58 S.W.3d 422 (2001). Because there are no cases in which the superior position, ability, and opportunity of the trial judge to observe the parties carry as much weight as in those involving child custody, our deference to the trial judge is correspondingly greater in such cases. Id. The best interest of the child is of paramount importance in deciding the question of custody; all other considerations are Lsecondary. Ford, supra. Amy argues that the trial court erred by failing to apply Hollandsworth. In Hollandsworth, our supreme court held that relocation by a custodial parent does not, by itself, constitute a material change in circumstances. 353 Ark. at 476, 109 S.W.3d at 657. The Hollandsworth court also announced a rebuttable presumption in favor of relocation by a custodial parent with primary custody. Id. We hold that the trial court erred by finding that the relocation by Amy constituted a material change in circumstances and by failing to apply the presumption that relocation by Amy is in C.S.’s best interest. The decree itself states that the parties would have joint custody, that Amy would have primary custody, and that child support and visitation would be in accordance with the parties’ settlement agreement. The parties’ settlement agreement, which was incorporated into the divorce decree, explicitly states that, while the parties would have joint legal custody of C.S., Amy would be the child’s primary physical custodian. Absent a subsequent modification, the language in the decree is controlling. Hurtt v. Hurtt, 93 Ark.App. 37, 47-48, 216 S.W.3d 604, 610 (2005). Thus, although the settlement agreement goes on to state that the parties would alternate weeks with the child, the decree does not award joint physical custody of C.S. Joseph was aware of this, as he testified at the hearing that he knew when he signed the agreement that Amy was to be the primary physical custodian of C.S., and that he also knew that this meant Amy would make the final decisions regarding the child. Our holding in this case is supported by our case law. We affirmed the trial court’s | ^application of Hollandsworth in Chastain v. Chastain, 2012 Ark. App. 73, 388 S.W.3d 495, where the decree of divorce stated that custody of the children would be joint and equal with the mother having the primary residence. We reversed and remanded for application of Hollandsworth in Hurtt, supra, where the decree stated that the parties would have joint custody of the minor child with the wife having primary custody and the parties testified that they split time with the child equally. Likewise, in Durham v. Durham, 82 Ark.App. 562, 120 S.W.3d 129 (2003), a case that was decided shortly after Hollandsworth was announced, we applied the Hollandsworth presumption to a joint-custody situation in which one parent had primary custody. Joseph argues in his reply brief that, although the circuit court did not employ Hollcmdsworth, the order should still be affirmed because the circuit court found a material change in circumstances in addition to the relocation. For support, he cites our decision in Shannon v. McJunkins, 2010 Ark. App. 440, 376 S.W.3d 489. Shannon is inapplicable to the instant case. In that case, we held that, although it was error for the trial court to not apply Hollandsworth, the resulting order could be affirmed because, in addition to the mother’s request for relocation out of state, the mother had impermissibly co-habitated with members of the opposite sex, the mother’s older daughter exhibited serious discipline problems, and the father of the mother’s older child harassed the mother. Here, both parties agreed that there were no problems prior to Amy’s relocation and the testimony reveals that all the problems that appeared after the relocation were a result of the relocation itself. Therefore, there was no basis to find a material change in circumstances independent of the move, and there is no | f,indication from the circuit court’s order that it did so. The circuit court’s order is reversed and remanded for the circuit court to review the case pursuant to the requirements set forth by our supreme court in Hollands-worth. Reversed and remanded. WALMSLEY, GLOVER, and HIXSON, JJ., agree. BROWN, J., concurs. GLADWIN, C.J., and HARRISON, Gruber, and WOOD, JJ., dissent.