Melissa Ann Phillips v. Robert James Phillips

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JUDGE KAREN R. BAKER

DIVISION III

MELISSA ANN PHILLIPS

APPELLANT

V.

ROBERT JAMES PHILLIPS

APPELLEE

CA02-49

SEPTEMBER 18, 2002

APPEAL FROM THE BENTON CIRCUIT COURT

[E98-1021-2]

HONORABLE DONALD R. HUFFMAN, CIRCUIT JUDGE

REVERSED AND REMANDED

Appellant brings this appeal from the trial court's order granting a change of custody to appellee, the children's father. Appellant asserts three points for reversal. For her third point, appellant states that the trial court erred by shifting the burden of proof required to modify custody away from the party seeking the modification. We agree. Because this case must be remanded in order for the trial court to apply the proper burden of proof, we do not address appellant's arguments challenging the court's finding of a material change of circumstances nor the application of the best interest of the child standard.

A judicial award of custody will not be modified unless it is shown that there are changed conditions which demonstrate that a modification of the decree will be in the best interests of the children. Campbell v. Campbell, 336 Ark. 379, 985 S.W.2d 724 (1999) (citing Feight v. Feight, 253 Ark. 950, 490 S.W.2d 140 (1973)). The party seeking modification of the custody order has

the burden of showing a material change in circumstances. Jones v. Jones, 326 Ark. 481, 491,931 S.W.2d 767, 772 (1996). Once this initial burden is met, the trial court must then determine who should have custody. See Hollinger v. Hollinger, 65 Ark. App. 110, 986 S.W.2d 105 (1999). While child custody is always modifiable, a more rigid standard for modification than for initial determinations is required in order to promote stability and continuity for children and to discourage repeated litigation of the issues. Stellpflug v. Stellpflug, 70 Ark. App. 88, 14 S.W.3d 536 (2000).

To uphold a trial court's shift of the burden of proof in a child custody modification proceeding "would be to undermine the very purpose of our elevated standard of proof and modification proceedings - to promote stability and continuity in the life of the child." Jones, 326 Ark. at 494, 931 S.W.2d at 774.

In the case before us, the mother was awarded custody of the parties' children in the divorce decree. By agreement between the parties, without court intervention or even notification to the court, the children stayed with the father from their Christmas break to approximately one-half of their summer break. There was disputed testimony as to the terms of the out-of-court agreement regarding the return of the children to the mother's physical custody. Regardless of what the original agreement may have been, the father petitioned for a change in custody. Various pre-trial requests for relief had resulted in a court order leaving the children with their father until the final resolution before the trial court.

The trial court in this case made the following comments: "The issue is whether or not he has to give `em back. Why should he have to give `em back?" ... "Why should the Court order him to give `em back?" These statements and a review of the proceedings indicate that the trial court improperly shifted the burden from the father who was the party requesting a change in the original custody order that placed custody of the children with the mother and put the burdenupon the mother to prove why the Court should not grant the father's petition. The trial court's shifting of the burden of proof to the mother is unacceptable, and we cannot uphold it.

We hold that the trial court erred by shifting the burden of proof to the nonmoving party, and, accordingly, reverse and remand for further proceedings.

Reverse and remand.

Bird and Neal, JJ., agree.