Catherine Tillery (Lindsey) v. Floyd Carroll Evans

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN F. STROUD, JR., CHIEF JUDGE

DIVISION I

CATHERINE TILLERY (LINDSEY)

APPELLANT

V.

FLOYD CARROLL EVANS

APPELLEE

CA 02-182

September 18, 2002

APPEAL FROM THE CARROLL

COUNTY CIRCUIT COURT

[E-96-54-5]

HONORABLE DONALD R.

HUFFMAN, JUDGE

REVERSED AND REMANDED

Appellant, Catherine Tillery Lindsey, and appellee, Carroll Evans, are the parents of Macy Evans, who was born in 1995. Although the couple never married, appellee's paternity of the child was established. When the couple stopped living together, custody of the child was awarded to appellant, with appellee having visitation rights. On October 31, 2001, appellant petitioned the court, seeking permission to relocate Macy to Ohio because appellant planned to marry a man named Jim Lindsey, who was a resident of Ohio. She has since married Lindsey, but has remained in Arkansas awaiting the outcome of her petition. Appellee counter-petitioned for custody. The matter came before Judge Donald Huffman, who sat on special assignment because the sitting judge recused, and it was heard in late December 2001. The court denied appellant's petition, and this appeal followed. We reverse and remand.

Catherine Tillery Lindsey testified that she and Jim Lindsey began dating in February 2001, but that they had known each other for four years. They married on December 8, 2001, prior to the relocation hearing. She stated that he resides in Washington County Courthouse, Ohio, which has a population of approximately 28,000 and is about 770 miles from Lowell, Arkansas.

She testified that Macy is in the first grade; that the school she would attend in Ohio is three blocks from Lindsey's house, and that the daycare is located less than twenty steps from the office where she would be working. She stated that she has a job waiting for her in Ohio, at Sugar Creek Packing, where she would be running the transportation department; and that she would be making $900 per week, plus full benefits. She said that she currently works for a trucking company, but that it is in trouble and will soon close. She explained that she is currently on call twenty-four hours a day, seven days a week and earns $650 per week. She stated that she does not currently have health insurance, but that she will have full benefits in the new job in Ohio. She also testified that she and Jim Lindsey plan to start their own business in Ohio.

She explained that she has a son from a previous marriage, Beau Tillery, and that he would join them in Ohio when basketball season ended. She stated that most of her relatives live in Washington County, Arkansas, and that she plans to keep strong ties to the area. She stated that Macy would be able to engage in the same after-school activities in Ohio that she enjoys in Arkansas, and that Jim Lindsey has two brothers with children about Macy's age who live in the same area.

Lindsey stated that she thought Macy would be devastated if she were not allowed to move to Ohio, and that Lindsey was not moving just to interfere with appellee's visitation. She proposed to modify visitation if she moved to Ohio, and stated that she would be willing to bear half the cost of transportation for visitations.

She stated that she has been to Ohio to visit Lindsey approximately twelve times since February 2001, and that Macy had accompanied her four times. She stated that at her present house, she and Macy share a bedroom because appellant's son and oldest daughter live there also. She said that her oldest daughter would not accompany them to Ohio because she was in her second year at the University of Arkansas. She stated that she had talked to some other trucking companies in Springdale about possible jobs before deciding to move to Ohio; however, the job offer in Ohio offered more than she had in this area. She stated that she will be working for the same company in Ohio as Lindsey; that he had not attempted to find employment in Arkansas because he has a good, stable, well-paying job in Ohio; and that he has no children of his own.

When asked by the court why she felt she must move, appellant explained that it was because she was currently married to Mr. Lindsey; that she and Macy would be part of a family environment in Ohio; that she would have a job there making more money and providing more benefits, including health insurance; that her job here was ending; that there was a good school district in Ohio; that Lindsey owned the house in which they would be living; that Macy would have her own bedroom there; and that Lindsey's nieces and nephews would be nearby. She stated, however, that if she were forced to choose betweenmoving to Ohio without Macy or staying in Arkansas with her, she would never leave. She also stated that Lindsey interacted well with her children. At the close of the hearing, appellant introduced a notarized, faxed statement from the President of Sugar Creek Packing Company, stating the terms and the fact of her employment with that company.

Appellee, Carroll Evans, testified that he has lived in northwest Arkansas his entire life and that he had no plans to move; that his other children and grandchild live nearby; that Macy visits him every other weekend and alternate mid-weeks; and that he has attended almost every one of her T-ball games. He stated that he and appellant have had a good relationship when dealing with Macy, but that he was taken by surprise by the petition to relocate. He acknowledged that he did not think appellant intended to defeat his visitation by the move; that he is very close to Macy; and that he thinks the move will benefit appellant, but not Macy. He said that he is self-employed and flexible; that he thinks over time, Macy will forget her family here; and that he is not sure that he will exercise his visitation if she gets to move to Ohio.

Tammy Hood, appellee's married daughter, testified that she lives close to appellee. She said that she has observed her father with Macy and that they have a good relationship.

At the conclusion of the hearing, the court denied appellant's petition to relocate and ordered that if she chose to move to Ohio, custody would be changed to appellee.

Appellant raises five points of appeal: 1) the trial court erred in finding there was no "real advantage" in allowing the custodial mother of a six-year-old child to relocate from Arkansas to Ohio when the mother had married a man residing in Ohio and had securedemployment that substantially increased her income; 2) the trial court erred in finding that the distance between Arkansas and Ohio was so great that "there would be no realistic opportunity" for the non-custodial father "to have visitation or to foster the parent/child relationship"; 3) the trial court erred in taking judicial notice that the appellant was capable of finding employment in Arkansas comparable to her employment in Ohio; 4) the trial court erred in finding that it was in the best interests of the minor child that custody be transferred to the father in the event that the mother chose to move to Ohio; 5) the trial court's exhibited displeasure with the appellant's prior appeal of the trial court, which resulted in reversal of the trial court, indicates a lack of impartiality on the part of the trial court and prejudice towards the appellant's petition.1 These points can be combined into one major issue: whether the trial court erred in denying appellant's petition to relocate. We hold that it did, and therefore we reverse and remand.

A trial court's decision on relocation is reviewed de novo, but its findings will not be reversed unless they are clearly erroneous. Parker v. Parker, 75 Ark. App. 90, 55 S.W.3d 773 (2001). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake was committed. Id. The trial court's findings in the instant case were clearly erroneous and require reversal.

In Staab v. Hurst, 44 Ark. App. 128, 868 S.W.2d 517 (1994), this court recognized that relocation disputes require a more specific and instructive standard, even though "best interest of the child" remains the ultimate objective. This court cited the New Jersey case of D'Onofrio v. D'Onofrio, 144 N.J. Super. 200, 365 A.2d 27, aff'd 144 N.J. Super. 352, 365 A.2d 716 (App. Div. 1976), as helpful, finding the following passage to be persuasive:

The children, after the parents' divorce or separation, belong to a different family unit than they did when the parents lived together. The new family unit consists only of the children and the custodial parent, and what is advantageous to that unit as a whole, to each of its members individually and to the way they relate to each other and function together is obviously in the best interest of the children. It is in the context of what is best for that family unit that the precise nature and terms of visitation and changes in visitation by the noncustodial parent must be considered.

Staab, 44 Ark. App. at 133, 868 S.W.2d at 519. However, our court also noted that care must be taken not to equate the best interest of the child with the best interest of the custodial parent, that it was important to develop and maintain a relationship with the non-custodial parent, and that visitation played a significant role in that relationship. Again, our court quoted from D'Onofrio:

Where the residence of the new family unit and that of the non-custodial parent are geographically close, some variation of visitation on a weekly basis is traditionally viewed as being most consistent with maintaining the parental relationship, and where, as here, that has been the visitation pattern, a court should be loathe to interfere with it by permitting removal of the children for frivolous or unpersuasive or inadequate reasons. . . . [Nevertheless,] the court should not insist that the advantages of the move be sacrificed and the opportunity for a better and more comfortable lifestyle for the [custodial parent] and children be forfeited solely to maintain weekly visitation by the [non-custodial parent] where reasonable alternative visitation is available and where the advantages of the move are substantial.

Id. at 133-34, 868 S.W.2d at 519.

The framework by which courts are to be guided in deciding relocation disputes was described in Staab:

[W]here the custodial parent seeks to move with the parties' children to a place so geographically distant as to render weekly visitation impossible or impractical, and where the non-custodial parent objects to the move, the custodial parent should have the burden of first demonstrating that some real advantage will result to the new family unit from the move. D'Onofrio further provides that, where the custodial parent meets this threshold burden, the court should then consider a number of factors in order to accommodate the compelling interests of all the family members. These factors should include: (1) the prospective advantages of the move in terms of its likely capacity for improving the general quality of life for both the custodial parent and the children; (2) the integrity of the motives of the custodial parent in seeking the move in order to determine whether the removal is inspired primarily by the desire to defeat or frustrate visitation by the non-custodial parent; (3) whether the custodial parent is likely to comply with substitute visitation orders; (4) the integrity of the non-custodial parent's motives in resisting the removal; and (5) whether, if removal is allowed, there will be a realistic opportunity for visitation in lieu of the weekly pattern which can provide an adequate basis for preserving and fostering the parent relationship with the non-custodial parent.

Id. at 134, 868 S.W.2d at 520.

Here, we find that the trial court was clearly erroneous in concluding that appellant had not satisfied her initial burden of establishing that a real advantage would result to the new family unit from the move. Appellant had married a man who was a resident of Ohio and who had a good and secure job there, with family close by. Moreover, she was about to lose her job in northwest Arkansas, but she had one to go to in Ohio that would pay her $300 more per week plus other benefits that she did not currently enjoy, such as health insurance.

Furthermore, in applying the separate Staab factors, we find that they support appellant's petition to relocate and that the trial court was clearly erroneous in finding that they did not:

(1) The move would have the likely capacity for improving the general quality of life for both appellant and Macy in that they would then become part of a family unit that included the new husband. Appellant's salary would be higher and would include health insurance, which her current job does not. Her salary would be supplemented by the fact that her new husband has a good, stable job and that they would be living in a house that he owns and that would provide a separate bedroom for Macy.

(2) Even appellee acknowledged that he did not think appellant was trying to use the move to defeat or frustrate his visitation.

(3) Appellant is very likely to comply with substitute visitation orders. She and appellee seem to get along well with respect to Macy, and appellant specifically stated that she expected to adjust visitation to compensate for the fact that Macy would be so far from appellee after the move.

(4) By the same token, there was no convincing evidence that appellee's motives in resisting the removal were tainted.

(5) Finally, the trial court clearly erred in finding that there was not a realistic opportunity for visitation in lieu of the weekly visits that would foster the parental relationship with appellee. As suggested by appellant, appellee's visitation can be reallocated and substantially expanded during school vacations to compensate for the factthat he will no longer have Macy for regular weekend visits, and appellant can pay for one-half of the cost of transportation for visitation.

Accordingly, we reverse and remand this case to the trial court with instructions to allow Macy to relocate to Ohio with appellant and to establish yearly visitation with appellee as follows: one-half of Macy's Christmas vacation; all of Macy's spring vacation; the first eight weeks of summer vacation; and alternating Thanksgiving holidays. Each party shall be ordered to pay one-half the cost of transportation for visitation.

Reversed and remanded.

Hart and Robbins, JJ., agree.

1 Judge Huffman was a former chancellor who had heard prior custody and related matters between the parties before he left the bench.