Young v. Young

Cite as 2013 Ark. App. 707

ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-13-366

WYATT LEE YOUNG Opinion Delivered December 4, 2013
APPELLANT
APPEAL FROM THE MADISON
V. COUNTY CIRCUIT COURT
[NO. DR 2010-131-5]

BRIDGETT ANN YOUNG HONORABLE BETH STOREY
APPELLEE BRYAN, JUDGE

AFFIRMED

ROBIN F. WYNNE, Judge

The parties are divorced and have one child together, who was two months old when

the divorce decree was entered on January 3, 2011. Wyatt Young appeals from the circuit

court’s order denying his motion for change of custody and granting appellee Bridgett

Young’s (now Bevans) petition for relocation. Wyatt argues that the trial court’s decision to

permit relocation was clearly erroneous because it did not fully consider the factors set forth

in Hollandsworth v. Knyzewski, 353 Ark. 470, 109 S.W.3d 653 (2003); he contends that he

overcame the presumption in favor of relocation. We affirm.

The parties married on April 5, 2010, and separated on May 22, 2010. At the time

of their divorce in December 2010, the parties agreed that Bridgett would have primary

custody of their son, subject to Wyatt’s reasonable visitation. In August 2012, Bridgett filed

a petition for relocation, stating that she had remarried and that her husband was in the
Cite as 2013 Ark. App. 707

Marine Corps and stationed in North Carolina. She stated that she desired to move to North

Carolina to live with her husband and had been offered a job there. Wyatt responded and

included a motion for change of custody. He alleged that Bridgett had engaged in a

“systemic scheme to alienate the minor child since the time of the child’s birth.” Wyatt

outlined facts that he asserted constituted a material change in circumstances warranting a

change in custody.

At the hearing on December 13, 2012, Bridgett testified that she was nineteen years

old and lived at her parents’ house in Huntsville. She testified that her son was healthy and

doing well. She did not work, but was a full-time student at North Arkansas Community

College and hoped to transfer to Jacksonville, North Carolina, to finish the year. Bridgett

stated that at the end of the next semester she would be a phlebotomy technician and

eventually she wanted to be a medical-laboratory technician.

Bridgett testified that she was married on June 25, 2012, to Jacob Bevans, a lance

corporal in the Marine Corps who was stationed in Jacksonville, North Carolina. She

testified that she and her husband had not lived together. She stated that, if she were allowed

to relocate, they would be living in a duplex out in the country with a nice yard. There is

a daycare available for military families at the school she would be attending. According to

Bridgett, Jacksonville has a population of around 70,000 and all of the recreational and other

facilities available in Arkansas. If she relocated, she stated that she would like her son and

Wyatt to communicate through Skype.

She testified that after she told Wyatt about her marriage and desire to relocate, things

became more tense between them. Nonetheless, he continued to exercise visitation, and she

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Cite as 2013 Ark. App. 707

stated that she had allowed him more visitation than required by the court’s order—three

hours on Wednesdays instead of the required two hours. That changed when the child’s nap

schedule changed, and Bridgett no longer allowed Wyatt to pick him up an hour early on

Wednesdays. She acknowledged that Wyatt was a good father and stated that she wanted

him and his family to continue to have a close relationship with the child.

Wyatt testified that he was twenty-two years old and worked as a contract logger for

his father’s company. He had lived with his parents his whole life. Wyatt testified regarding

his involvement in his son’s life and the activities they did together. Wyatt testified that he

was concerned that if Bridgett moved to North Carolina that he would be prevented from

getting information about his son or that she would try to cut his son out of his life.

Both of Wyatt’s parents testified regarding their family’s close relationship with

Wyatt’s son and the activities that they did together during Wyatt’s visitations every

Wednesday evening and every other weekend.

In closing arguments, Wyatt conceded that he had not shown a material change in

circumstances (thus abandoning his motion for change of custody) and asked that Bridgett

not be allowed to relocate to North Carolina. At the conclusion of the hearing, the trial

court specifically addressed the Hollandsworth factors and found that it was in the child’s best

interest to relocate with his mother. The court’s order was entered on January 29, 2013, and

it provided a new visitation schedule, which included visitation via Skype every evening at

7:00 for the party who did not have the child, and stated that “transportation and/or

expenses” would by decided by and split equally between the parties. This appeal followed.

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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. Bishop v.

Singletary, 2013 Ark. App. 394, at 3, ___ S.W.3d ___, ___ (citing 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.

In Hollandsworth v. Knyzewski, 353 Ark. 470, 109 S.W.3d 653 (2003), our supreme

court set forth a presumption in favor of relocation for a custodial parent with primary

custody, with the noncustodial parent having the burden of rebutting the presumption. The

court stated that the custodial parent no longer has the obligation to prove a real advantage

in relocating. Id. The court further stated:

The polestar in making a relocation determination is the best interest of the child, and
the court should take into consideration the following matters: (1) the reason for the
relocation; (2) the educational, health, and leisure opportunities available in the
location in which the custodial parent and children will relocate; (3) visitation and
communication schedule for the noncustodial parent; (4) the effect of the move on
the extended family relationships in the location in which the custodial parent and
children will relocate, as well as Arkansas; and, (5) preference of the child, including
the age, maturity, and the reasons given by the child as to his or her preference.

Id. at 485, 109 S.W.3d at 663–64. The court went on to state that the reason the appellant

desired to relocate—marrying someone living in another state—was valid, noting that “[i]t

is only common and normal for a wife to reside with her husband.” Id. at 486, 109 S.W.3d

at 664.

Wyatt argues that the trial court’s decision to permit relocation was clearly erroneous

because it did not fully consider the Hollandsworth factors, and he contends that he overcame

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Cite as 2013 Ark. App. 707

the presumption in favor of relocation. He points to the facts that Bridgett has no family

support in North Carolina, she got married to her new husband quickly and had never lived

with him, her husband would likely be deployed in the near future, and neither party earns

much money to pay for travel. He concludes that “[i]f this decision stands then a custodial

parent will be allowed to relocate for just about any reason whatsoever (or no reason at all)

and there will be nothing that the non-custodial parent can do about it.”

In this case, the circuit court specifically considered all these factors, and found, based

on all the evidence, that relocation with his mother was in the best interest of the child.

Considering the deference accorded to the circuit court, due to its superior position to judge

the credibility of the witnesses, we hold that the circuit court did not clearly err in finding

that Wyatt failed to rebut the Hollandsworth presumption.

Affirmed.

PITTMAN and HARRISON, JJ., agree.

Byars, Hickey & Hall, PLLC, by: Kevin L. Hickey, for appellant.

Snively Law Firm, by: Tim Snively, for appellee.

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