Vest v. Vest

Cite as 2017 Ark. App. 530

ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-17-3

ALICIA VEST (NOW BUFORD) Opinion Delivered: October 18, 2017

APPELLANT APPEAL FROM THE FRANKLIN
COUNTY CIRCUIT COURT,
V. NORTHERN DISTRICT
[NO. 24ODR-08-48]
CORY VEST
APPELLEE HONORABLE DENNIS CHARLES
SUTTERFIELD, JUDGE

AFFIRMED

DAVID M. GLOVER, Judge

Alicia (Vest) Buford and Cory Vest were divorced by decree entered on September

16, 2008. Alicia was awarded custody of their two children, K.V. and C.V., in part because

Cory was dealing with a serious alcohol problem. Both parties have subsequently remarried.

Cory’s successful efforts to overcome his alcohol problem have resulted in changes to his

visitation over the years, giving him more, and unsupervised, time with the children. On

March 11, 2015, Cory filed a motion to modify custody. Following a hearing, the trial

court found a material change in circumstances had occurred, and it was in the children’s

best interests to change custody from Alicia to Cory. The order changing custody was

originally entered August 18, 2016, and then amended by order entered September 19,

2016. This appeal followed. We affirm.
Cite as 2017 Ark. App. 530

The primary consideration in child-custody cases is the welfare and best interest of

the children, and all other considerations are secondary. Earl v. Earl, 2015 Ark. App. 663,

476 S.W.3d 206. In order to change custody, the trial court must first determine that a

material change in circumstances has occurred since the last order of custody. Id. The party

seeking modification of the custody order has the burden of demonstrating a material change

in circumstances. Id. If that threshold requirement is met, the trial court must then determine

who should have custody, with the sole consideration being the best interest of the children.

Id. Generally, courts impose more stringent standards for modifications in custody than they

do for initial determinations of custody because the courts want to promote stability and

continuity in the children’s lives and to discourage repeated litigation of the same issues. Id.

When Alicia and Cory divorced in September 2008 and Alicia was awarded custody,

K.V. was five years old and C.V. was three years old. At the time of the 2016 change-in-

custody order, K.V. was thirteen and C.V. was almost eleven. There is no serious dispute

that Cory currently has his alcoholism under control, so that was not a compelling issue in

this case.

K.V. was diagnosed with type 1 diabetes after her parents divorced. She testified she

wanted to live at her dad’s house because it was “easier” and “not as stressful.” She explained

she liked living with her mom, but it was more stressful because she had to take care of her

diabetes by herself, and her mom would sometimes panic if anything went wrong or if they

did not understand something. She said it scared her when her mom did that, and it made

her think she had done something wrong. She stated it was different at her dad’s house

because he helped her with her diabetes; he did not panic if they did not understand

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something about it; he did not make her feel as if it were her fault; and if he could not figure

out what to do, he would call the doctor and not make a big deal about it. She stated she

feels safer at her dad’s house, and she is much calmer and less nervous at her dad’s house.

She explained that her blood sugar “will do weird things” about two or three times a month;

that it depends on whether she’s nervous about something, like school tests, or if she’s had

big meals; that her mom panics and gets mad about it and explodes and yells and screams;

and that it scares her when those situations arise. K.V. acknowledged her mom’s

“explosions” happened more often after her mom’s sister, Julie, died, but it still happened

sometimes, and it made her blood sugar spike and “made everything worse.” She testified

it was very important to her to live at her dad’s house, and she was more comfortable and

not scared there.

K.V. explained the intricacies of monitoring her diabetes. She also testified she loves

her brother and wants to be with him no matter what decision the trial court made. She

acknowledged she would have to change schools if she moved to her dad’s house; stated she

was used to it because she had changed schools three times in four years; and reported she

makes all As. She said she would feel more relaxed at her dad’s house because the stress of

the responsibility of her diabetes would not be all on her, and she would not have to worry

so much.

K.V. said the only downside she could think of if she moved to her dad’s house was

her mom’s reaction; that her mom got really mad and withdrew from her when she was

with her dad on weekends. She explained she was the one who pushed for a change of

custody, but when she tells her mom she wants to live with her dad, her mom explodes,

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screaming and yelling and trying to make her feel guilty for wanting to live at his house; her

mom sees it as a betrayal; her mom does not like it when she tries to talk about her visits

with her dad; and her mom “talks ugly” about her dad. She said her dad’s house is more

open, and they let her talk about what she does at her mom’s house. K.V. denied she was

exaggerating things in order to go live with her dad. She acknowledged that both of her

parents love her and that they were both trying to do what the doctor told them to do about

her diabetes.

C.V. also testified at the hearing, explaining he is in the fifth grade; he had gone to

three schools and lived in at least three houses; he makes good grades; he leaves for school

around 6:45 a.m. and is there until 4:00 or 4:30 in the afternoon while his mom finishes her

work; he helps with chores at both his mom’s and his dad’s houses; he loves both of his

parents and doesn’t really have an opinion about where he wants to live; he doesn’t want

to hurt anyone’s feelings and would be happy either place; and the most important thing to

him was to stay where his sister is.

Cory testified at length about K.V.’s diabetes diagnosis and the training they received

to deal with it. He explained the routines they follow at his house to monitor and control

her blood sugar and how he allows her to calculate her carbs and ratios but that he then

double-checks her calculations and makes any necessary corrections. He stated they work

on it together and K.V. seems to appreciate his involvement.

Cory stated the first time K.V. asked him to seek a change in custody, he told her no

but promised he would reconsider in six months if she still felt the same. He explained he

wanted to make sure the reasons for a change were not superficial. He stated his biggest

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issue was K.V.’s health, and he had concerns about the children’s schedules at Alicia’s house

because diabetes needs consistency and a schedule. He acknowledged that K.V.’s doctor had

reported that her diabetes was being well controlled, but he still believed he could do a

better job than Alicia in helping K.V. control her diabetes.

Cory stated he and Alicia did not communicate well. He discussed his frustration that

his requests for extra time with the children, backup supplies for K.V.’s diabetic needs, and

requests to be notified about school and extracurricular activities had been ignored by Alicia.

He candidly acknowledged he could do a better job of communicating with Alicia, stated

that he had tried continuously to improve, and stated that Alicia had improved in the last

six months.

Alicia testified she was currently teaching pre-K, and she had been a teacher for a

total of fifteen years. She explained that she and Justin, her husband, also have a two-year-

old child together, and all three children are very close. She stated that she and her husband

have a combined income of approximately $140,000 to $150,000 a year; that they were

financially able to care for the children; and that they planned to build a new house, but the

house would be close to where they were currently living and the children would not have

to change schools. She explained that, depending on traffic, it took about thirty to thirty-

five minutes to drive the children to school but they had never complained about the drive.

She described their daily routine, which usually begins early and ends some nights as late as

9:30, and some nights around 5:30. She acknowledged she has moved three times since she

was awarded custody of the children. She confirmed earlier testimony that both children

excel in school.

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Alicia explained in detail the things she does to help K.V. manage her diabetes and

described the types of things that could affect her blood sugar. She denied ever freaking out

or getting upset with K.V. about her blood-sugar levels being too high or too low. She

described her relationship with K.V. as a typical mother-daughter relationship; that it is a

good relationship; that they had only one or two arguments in the last year; that she does

not scream or yell at K.V.; and that she also has a good relationship with C.V. Alicia denied

getting upset with K.V. when K.V. told her she wanted to live with her dad and when she

asked K.V. why she wanted to live with her dad, K.V. did not really have a reason. Alicia

acknowledged she has K.V. do a lot of the work herself in calculating her blood-sugar levels;

she monitors K.V.’s calculations but wants her to do it on her own because she is going to

have to live with the disease for the rest of her life; Alicia could not be with her “24/7”;

and K.V. does a great job for a thirteen-year-old. Alicia stated they eat out a couple of times

a week, and the rest of the time they eat at home.

Alicia denied that she had refused to give information about the children to Cory.

She outlined the children’s activities, which included dance classes, dance competitions,

cheerleading, and band for K.V. and basketball and baseball for C.V. Alicia described the

manner in which she communicates with Cory, explaining she did not always respond

immediately because she was either teaching or wanted to discuss it with her husband. She

stated Justin gets along well with the children; they really like him; and, except for one or

two times, she and Justin do not argue or yell or scream at each other in front of the kids.

She stated she did not think it was in the children’s best interest to change custody to Cory

because “he doesn’t work, he manipulates and lies quite often”; that she would be concerned

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about the influence and character traits they would be taught. She acknowledged that Cory

would take care of K.V.’s medical needs. She stated it was “hard and hurtful” to her that

K.V. wanted to live with her dad; she did not think K.V.’s opinion should be given any

weight because she believed K.V. had been “coached and bribed” with promises she would

get to cheer, dance, and “paint a mustang any color she wanted.” Alicia stated that in the

time since the divorce, the children’s home life has gotten better, not worse, and there was

no change in the situation that’s gotten worse at all. Alicia acknowledged that two of the

children’s three school changes could have been prevented if they had gone to the schools

in the district where they lived (Hulbert School District) but stated she would not send the

children to that district because its state report card was not good.

Two other witnesses testified, Tina Smith, who is Cory’s sister, and Justin Buford,

who is Alicia’s husband. Tina testified she worked twenty-three years in public schools; the

children do well with Cory; she finds K.V. to be credible; she is a very mature thirteen-

year-old; in her opinion, the longer a child’s travel time, the more tired he or she is at

school; and she believed Cory would foster a good relationship with Alicia. Justin testified

he, K.V., and C.V. have fun together; he has observed Alicia taking care of K.V.’s medical

issues, and she does a good job; he and Alicia get along really well; they do not yell and

scream at each other, and in the last year and a half, he has not seen Alicia and K.V. yelling

or screaming at each other; Alicia may raise her voice, but she is a great mom and takes care

of every need the children have; and he wants the children to live in their house.

In reviewing child-custody cases, we consider the evidence de novo but will not

reverse a trial court’s findings unless they are clearly erroneous or clearly against the

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preponderance of the evidence. Montez v. Montez, 2017 Ark. App. 220, 518 S.W.3d 751.

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. We

recognize and give special deference to the superior position of a trial 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 trial court to observe the parties carries a

greater weight than those involving children. Acre v. Tullis, 2017 Ark. App. 249, 520 S.W.3d

316.

For ease of discussion, we address Alicia’s last point first. In it, she contends that at

the time Cory filed his March 11, 2015 motion to change custody, it had been less than

four months since the last custody modification had been made. We disagree. As noted by

the trial court in its letter opinion, custody was established in the 2008 divorce decree and

that was the last time custody had been litigated. In her reply brief to this court, Alicia

acknowledges that subsequent motions filed by Cory “were not labeled specifically with the

label of custody,” but that “the spirit and intent of both such motions included language

and tone suggesting modification beyond simply visitation.” We find no clear error in the

trial court’s determination that subsequent modification orders dealt with visitation, not

custody, and that the last time custody of the children was litigated was in 2008.

Alicia’s four remaining points of appeal address her overall contention the trial court

clearly erred in finding that a material change in circumstances had occurred and that it was

in the children’s best interests to change custody to Cory. She contends 1) there was no

material change of circumstances in her home and/or none that negatively affected the

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children’s best interests; 2) K.V.’s diabetes diagnosis, which occurred five years earlier and

for which both parties had been adequately trained to handle, did not indicate a material

change in circumstances and Alicia had handled the treatment alone for a substantial portion

of that five-year period; 3) there were no substantial changes in circumstances affecting the

children’s best interests that were not known or not presented to the trial court prior to the

initial custody determination; and 4) without any evidence of a material change in

circumstances, K.V.’s preference, standing alone, was not sufficient to support a material

change in circumstances.

The trial court explained its reasons for changing custody to Cory in a lengthy letter

opinion, which provided in part:

The court finds that there have been material changes in circumstances which
warrant re-evaluation of custody in this case. First, there has been the passage of time
since the last meaningful review of custody took place. During that time the
relationships of the parties and children have seen many changes. Both parties have
remarried. Mr. Vest has re-established his contact and significant involvement with
the minor children and made substantial personal improvements. In addition to these
changes both minor children have now reached an age and level of maturity to
warrant a serious consideration of their preferences in regard to custody.
....
Another change in circumstances is the fact that the oldest child, K.V., was
diagnosed with diabetes five years ago and the child has had to undergo important
lifestyle changes and deal with this condition on a daily basis. This disease demands
the constant attention of K.V. and her parents.

While the trial court recognized that both parents were capable of assisting and

helping K.V. monitor her diabetes, he specifically found that K.V. had greater confidence

in her father than her mother in working on controlling her diabetes. The trial court

specifically found both homes were stable with a good financial standard of living and good

physical living conditions. It further found the school system that would be involved in the

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change of custody from Alicia to Cory is a good one and specifically found the children

being in closer proximity to the school they would attend was an advantage in favor of a

change of custody. Still further, the trial court found that Alicia “intensely dislikes” Cory,

manifesting “an open disdain” for him, but the children were “extremely happy that their

relationship with their father has been renewed.” The trial court recognized the stability

and positive influence Alicia had provided for K.V. and C.V. and how much she loves them,

but concluded she had mixed her view of what needed to be done to protect the children

with her disdain and hostility toward Cory, creating a poisonous situation that was damaging

her relationship with her children. The court concluded Alicia strongly disagreed with the

court’s orders that had allowed Cory’s involvement in the children’s lives and that she would

not voluntarily take any steps whatsoever to foster their relationship with Cory. The trial

court noted that a child’s preference is not dispositive in a custody case, but that as children

grow older and more mature their preferences should be seriously considered. The court

recounted that C.V. did not express a strong preference regarding custody, but he did

express a strong desire not to be separated from K.V. and that K.V.’s very strong and clear

preference was to live at her dad’s house.

The trial court found that based on the totality of the evidence presented to it,

material changes in circumstances had taken place since custody was first awarded to Alicia

with the 2008 divorce decree, and it was in the children’s best interests to change custody

to Cory. Our de novo review of the record does not leave us with a definite and firm

conviction that the trial court made a mistake.

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Despite Alicia’s arguments to the contrary, the changes did not all occur with Cory

as the noncustodial parent. In addition to Cory’s remarriage and gaining control of his

alcoholism (which would not justify a change of custody standing alone, but was properly

considered by the trial court, see, e.g., Harral v. McGaha, 2013 Ark. App. 320, 427 S.W.3d

769), Alicia had also remarried since the original divorce decree; she had moved three times,

with three school changes for the kids and was at least contemplating a fourth move; and

the children’s resulting commute time was a concern to the trial court, along with Alicia’s

open disdain for Cory. The primary change in circumstances, however, was that K.V. had

developed diabetes. Alicia discounts the diabetes diagnosis because it occurred five years

earlier. We disagree. Even though the diagnosis had occurred much earlier, the disease

required major lifestyle changes and daily monitoring and treatment. Both families’ efforts

to help K.V. deal with the diagnosis constituted a major portion of the testimony presented.

We noted in an earlier case that in some instances it may be the adverse impact on a child

that makes a change in circumstances “material.” Valentine v. Valentine, 2010 Ark. App.

259, 377 S.W.3d 387. The trial court determined the changes resulting from the diabetes

diagnosis, along with others, constituted a material change in circumstances, and we see no

clear error in that finding.

Neither do we find clear error in the trial court’s determination that changing

custody to Cory was in the children’s best interests. Some of the factors a trial court may

consider in determining best interest include the psychological relationship between the

parents and the child, the need for stability and continuity in the relationship between

parents and the child, the past conduct of the parents toward the child, and the reasonable

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preference of the child. Westin v. Hays, 2017 Ark. App. 128, 513 S.W.3d 900. Here, K.V.’s

strong preference to live with her dad was not the trial court’s sole consideration, but it was

given considerable weight. In expressing her preference, K.V.’s description of her life in her

mother’s household demonstrated that she regarded it as more chaotic and less stable, causing

her more stress than she experienced at her father’s house, which she described as more

calm. K.V. explained that stress was one of the factors that could cause her blood-sugar

levels to get out of line. In addition, K.V. expressed more confidence in the way her father

dealt with her diabetes—being more of a partner with her in addressing her medical needs

and not as prone to panic when things went wrong. She also expressed her fear that Alicia

would alienate herself from K.V. because of her desire to live with her father. The trial court

found that Alicia’s disdain for Cory, as well as their history, was negatively impacting her

relationship with the children, and Cory was more likely to foster the relationship between

Alicia and the children. C.V.’s clear preference is to go where K.V. goes. We are not

convinced the trial court made a mistake in finding that it was in the children’s best interests

to change custody to their father.

Affirmed.

VIRDEN and MURPHY, JJ., agree.

Kevin L. Hickey, for appellant.

Aubrey L. Barr, for appellee.

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