Sarah Lee (Now Whiting) v. Aaron Childs

Reason: I attest to the
Cite as 2020 Ark. App. 156
accuracy and integrity of this
document
ARKANSAS COURT OF APPEALS
Date: 2021-06-21 14:14:02
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9.7.5 DIVISION III
No. CV-19-288

Opinion Delivered March 4, 2020
SARAH LEE (NOW WHITING)
APPEAL FROM THE LONOKE
APPELLANT COUNTY CIRCUIT COURT
[NO. 43DR-08-873]
V.
HONORABLE JASON ASHLEY
AARON CHILDS PARKER, JUDGE

APPELLEE AFFIRMED

N. MARK KLAPPENBACH, Judge

Appellant Sarah Whiting appeals the circuit court’s January 2019 order that awarded

Sarah and appellee Aaron Childs joint physical custody of their ten-year-old daughter AMC.

Previously, the parents shared joint legal custody, and Sarah had primary physical custody;

Aaron had visitation privileges. Sarah argues that the circuit court clearly erred (1) in finding

that there were material changes in circumstances, and (2) in concluding that AMC’s best

interest was served by changing to joint physical custody, expanding Aaron’s time with

AMC. We affirm.

The law on this subject is well settled. A judicial award of custody will not be

modified unless it is shown that there are changed conditions demonstrating that a

modification of the decree will be in the best interest of the child, or when there is a showing

of facts affecting the best interest of the child that were either not presented to, or not

known by, the circuit court when the original custody order was entered. Case v. Van Pelt,
2019 Ark. App. 382, 587 S.W.3d 567. Generally, to promote stability and continuity in

the life of the child and to discourage repeated litigation of issues that have already been

decided, courts impose more stringent standards for modifications in custody than they do

for initial determinations of custody. Id. The party seeking modification has the burden of

showing a material change in circumstances. Id. This court performs a de novo review of

child-custody matters, but we will not reverse a circuit court’s findings unless they are clearly

erroneous. Id. A finding is clearly erroneous when, although there is evidence to support

it, the reviewing court is left with the definite and firm conviction that a mistake has been

made. Id. Because the question whether the circuit court’s findings are clearly erroneous

turns largely on the credibility of the witnesses, we give special deference to the superior

position of the circuit court to evaluate the witnesses, their testimony, and the child’s best

interest. Id. There are no cases in which the superior position, ability, and opportunity of

the circuit court to observe the parties carry as great a weight as those involving minor

children. Id.

With these rules in mind, we turn to the facts and evidence of this case. AMC was

born in August 2008 to unmarried parents. Aaron filed a petition to establish his paternity

in October 2008. By a June 2009 order, Sarah was awarded primary physical custody, and

they shared joint legal custody, although Sarah had final decision-making authority. The

order established Aaron’s child-support obligation. Aaron was awarded standard visitation

that included overnight visitation each Wednesday, alternating weekends from Friday

evening to Sunday evening, two weeks of summer visitation, and specified holiday

visitation.

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By 2012, the parties fell into discord, resulting in an August 2013 order that

admonished both parents to change their behavior and cooperate in the best interest of their

four-year-old daughter. Aaron had married. This order clarified that any responsible

member of either parent’s family had permission to vacation out of state with the child and

to pick up or drop off the child as routinely necessary. Travel, however, was not to interfere

with the other parent’s court-ordered time unless agreed to in writing. Each party was

permitted one call per day to AMC when she was in the other parent’s custody, from 7:00

p.m. to 8:00 p.m. In 2016, Aaron, his wife Holly, and their children moved from Benton

to Cabot. Sarah and AMC lived in Cabot.

In July 2017, Aaron filed a motion seeking to change custody. Aaron sought full

custody or, in the alternative, joint physical custody. Aaron alleged material changes and

contended that it was in AMC’s best interest to grant his motion, including that

1. Sarah had initially been supportive of his move to Cabot and expressed willingness
for AMC to have more time with Aaron and his family;

2. Sarah instead disallowed any additional time and frustrated his attempts to see
AMC;

3. After his move, Sarah indicated that she might marry her boyfriend and move
with the child to Fayetteville, all in order to create distance between him and his
daughter;

4. Sarah refused to allow him and his family to care for AMC when Sarah was
working, choosing instead to leave AMC with her boyfriend or her boyfriend’s
mother;

5. Sarah allowed AMC to travel to Memphis with her boyfriend’s mother but did
not inform him;

6. Sarah refused to co-parent with him, going so far as to block his calls/texts and
then demand he communicate by calls/texts, and did not allow him phone contact

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during the 7:00 p.m. to 8:00 p.m. window but insisted that she be allowed to call
AMC at all hours;

7. Sarah was neglectful of AMC’s health, refusing to abide by doctor’s suggestions
or to promote a healthy lifestyle for AMC; and

8. Sarah was volatile, hateful, punitive, and vindictive toward him regarding his
contact with AMC “when it suits her mood.”

Aaron contended that Sarah was in violation of the very specific communication and

visitation rules established by the circuit court, warranting that she be held in contempt.

In Sarah’s response, she contended that it was Aaron whose cooperation had declined

and whose behavior was difficult. She denied that she had any intent of moving to

Fayetteville, and she noted that there was not a “right of first refusal” provision concerning

AMC’s care. Sarah stated that she was communicative and informative with Aaron, denying

any claim to the contrary. Sarah described the trip to Memphis as a last-minute day trip to

the zoo, which was a treat from her future mother-in-law to AMC, AMC’s future stepsister,

and another child. She believed this allegation was just Aaron’s effort to harass and control

her. Sarah admitted to having stated that, out of frustration with Aaron’s uncooperative

behavior, no one would tell her when she could call her child, but she denied it was out of

disrespect for or disregard of the court’s authority. She denied neglecting AMC’s medical

needs in any way and instead accused Aaron of letting his wife diagnose AMC. She agreed

that vindictive behavior between parents was detrimental to the child, but she denied any

such behavior. Sarah asked that Aaron’s petition be denied and dismissed. Sarah petitioned

for an increase in child support and for the daily 7:00 to 8:00 p.m. telephone-visitation

provision to be lifted because it was too confining.

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In November 2017, Aaron requested the appointment of an attorney ad litem for

AMC, which was granted. Sarah requested drug testing, which was ordered. Sarah married

her boyfriend Trey in January 2018, gaining two stepchildren.

In August 2018, Aaron filed an amended petition for a change of custody and to hold

Sarah in contempt. The amended petition added that AMC had exhibited extreme anxiety

caused by Sarah’s hostility toward him. Aaron accused Sarah of several misdeeds, including

resisting AMC’s counselor’s recommendation to allow Aaron more time with AMC;

refusing to keep him informed of when AMC would be cared for by others in Sarah’s

absence; vindictively filing a false and ultimately unfounded report to the medical board

alleging that his wife (a medical professional) and her employer (a doctor) provided improper

medical treatment to AMC; and putting AMC in the middle of adult issues.

At the hearing, both parents testified to their love for AMC and their dedication to

her well-being. Both parents had remarried, brought positive stepparents and stepsiblings

or halfsiblings into AMC’s life, and had suitable housing and employment. AMC was a

bright and sensitive child. None of this was in dispute. The litigation centered on the discord

between the parents, for which each parent blamed the other, and its effect on AMC.

During her testimony, Sarah agreed that there would be “no problem” extending

AMC’s time with Aaron to include overnight on Sunday evenings on his weekends when

she was working, although she was not agreeable to giving Aaron Thursdays too. Sarah had

taken a new nursing job. After completing orientation, she would be working twelve-hour

shifts (7:00 a.m. to 7:00 p.m., with a forty-minute commute each way) on Wednesdays,

Thursdays, and alternating weekends on Saturdays and Sundays. Sarah wanted to retain her

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Thursday nights with AMC because she would have more than an hour with her before

her bedtime. Sarah said she gave Aaron extra time with AMC “most of the time,” but she

wanted the order to remain as it was.

The attorney ad litem’s testimony and court report were persuasive evidence for the

circuit court. The ad litem explained that these were both devoted parents; that this case

“begs badly for co-parenting”; that AMC needs to be taken out of the middle and relieved

of the notion that she controlled where she spent her time; and that AMC needed

permission to be a child and to love and enjoy time with both sides of her family. The ad

litem’s overarching concern was Sarah’s being overly controlling and creating anxiety in

AMC for any act perceived as disloyal to her mother. The ad litem stated, “[T]here’s no

doubt there’s been a material change in circumstance” and that AMC’s anxiety alone was

enough of a material change. The ad litem urged the court to continue to allow AMC to

stay with Aaron every Wednesday (as previously ordered) but also to add Thursdays because

Sarah would be gone from 5:45 a.m. to 7:30 p.m. for work. The ad litem recommended

that, when Aaron had AMC for the weekend, AMC should stay overnight with him on

Sundays. The ad litem believed that this was in AMC’s best interest “for a lot of reasons.”

AMC had consistently told the ad litem she wanted to stay with her father on Sunday nights,

and the ad litem opined that AMC’s relationship with her father and his family was not

going to thrive as it should without extra time. The ad litem also recommended that AMC

continue with therapy.

The circuit court agreed with the attorney ad litem that there were “aggregate”

material changes in circumstances, “including but not limited to” Aaron’s move to be in

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proximity to AMC and Sarah, the addition of new siblings, the communication issues that

were affecting AMC and necessitating therapy, and Sarah’s inclination to withhold

visitation. The circuit court remarked that AMC’s “best interest is to be a child and be able

to be at both homes the most she can to where she feels the love from both homes equally

and as much as possible.” The court ordered, in line with the ad litem’s recommendations

on the schedule, that the parties would have joint physical custody. The previous order on

joint legal custody, with Sarah having final decision-making authority, would remain intact.

The circuit court’s order mandated that the parents participate in co-parenting counseling

to improve communication and that the parents use “Our Family Wizard” (an online

scheduling program) for routine scheduling. The circuit court held Sarah in contempt for

the spiteful and frivolous medical-board complaint she filed against Aaron’s wife. Sarah

appeals.

The essence of Sarah’s appeal is her argument that there were no material changes in

circumstances in that (1) there were always communication issues between these parents

that amounted to nothing more than petty complaints or gamesmanship, and thus no

material change, and (2) the changes Aaron created (moving to Cabot, remarrying, adding

halfsiblings to AMC’s life, and his causing AMC’s anxiety) could not be material because a

noncustodial parent cannot create the material changes to trigger a change in custody. Aaron

responds that the aggregate of the facts viewed together, and the anxiety that Sarah was

responsible for triggering in AMC, were sufficiently changed circumstances warranting the

circuit court to consider which custody arrangement was in AMC’s best interest.

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We are not persuaded that the circuit court clearly erred in this instance. Our de

novo review convinces us that the material changes here were AMC’s suffering undue

anxiety with the previous custody arrangement, which anxiety the child’s ad litem attributed

primarily to Sarah, and AMC’s need for additional, predictable time with her father. Taking

out the other alleged material changes, those negative mental and emotional effects on AMC

constitute a material change in circumstances in this particular case.

Sarah also argues that, even if there were material changes in circumstances, it would

not be in AMC’s best interest to order the parties to have joint physical custody. We

disagree. We begin by pointing out that Sarah agreed in her testimony that on the alternating

weekends that Aaron had AMC, his time should be extended until Monday morning. With

that concession, and as a practical matter, the issue here is the court’s order that officially

added every Thursday to Aaron’s visitation, on which days Sarah would not be home from

before 7:00 a.m. until after 7:00 p.m.

The attorney ad litem’s testimony and court report support the circuit court’s

decision. The attorney ad litem opined it to be in AMC’s best interest to be permitted more

time with Aaron and his family, which AMC wanted, unfettered by Sarah’s discretion to

disallow that time or Sarah’s causing anxiety in the child for wanting it. A child’s preference,

although not binding on the circuit court, is a factor to be considered in determining

custody. Williams v. Williams, 2019 Ark. App. 186, 575 S.W.3d 156. Each child-custody

determination ultimately must rest on its own facts. Cunningham v. Cunningham, 2019 Ark.

App. 416, 588 S.W.3d 38 (affirming joint-custody award and noting that most joint-custody

situations involve some amount of disagreement); Grimsley v. Drewyor, 2019 Ark. App. 218,

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575 S.W.3d 636 (same). In these circumstances, and in line with the due deference we give

to circuit courts in custody matters, we hold that the circuit court did not clearly err in

finding joint physical custody to be in AMC’s best interest.

Affirmed.

GRUBER, C.J., and VIRDEN, J., agree.

Taylor & Taylor Law Firm, P.A., by: Andrew M. Taylor and Tasha C. Taylor, for

appellant.

Scholl Law Firm, P.L.L.C., by: Scott A. Scholl, for appellee.

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