Jennifer Jo Krumrey v. Joseph Still

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JUDGE KAREN R. BAKER

DIVISION IV

JENNIFER JO KRUMREY

APPELLANT

v.

JOSEPH STILL

APPELLEE

CA02-542

JANUARY 8, 2003

APPEAL FROM THE BENTON COUNTY CIRCUIT COURT

[E1997-2228-3]

HONORABLE JAY T. FINCH, CIRCUIT JUDGE

REVERSED AND REMANDED

Appellant, Jennifer Jo Krumrey, appeals an award of permanent custody of her minor son to his father, appellee Joseph Still, by the Circuit Court of Benton County. Appellant has two arguments on appeal. First, she argues that the trial court erred in awarding appellee permanent custody of the parties' four-year-old son where it was uncontroverted that the sole basis for a change in the child's custody was moot at the time of the trial on the merits. Second, she argues that the trial court's decision to change custody must be reversed based on the fact that the appellee failed to prove by a preponderance of the evidence that there had been a material change in circumstances and that such change had detrimentally affected the parties' child. We reverse and remand.

The parties were divorced on April 27, 1998. Upon divorce, Ms. Krumrey was given custody of the minor child, with visitation given to Mr. Still every other weekend and every Wednesday night from 4:30 to 7:30 p.m.

Around the time of the divorce, Ms. Krumrey moved from Bella Vista, Arkansas, to Pineville, Missouri. Mr. Still remained in northwest Arkansas. In 1998, she petitioned the court to move to her home state of Iowa, where her family still resided. Her petition was denied by the trial court. In April 1999, Ms. Krumrey again petitioned to move to Joplin, Missouri. An agreed order was entered on April 26, 1999, which stated that Ms. Krumrey could not move any further north than Joplin, Missouri. Ms. Krumrey later accepted a teaching position in Carl Junction, Missouri, a town three or four miles from Joplin. However, her work schedule prevented her from meeting Mr. Still at 4:30 for the Wednesday visitation. As a result, the two agreed that Mr. Still would see the child on Friday evenings rather than Wednesday evenings.

In the spring of 2001, Ms. Krumrey learned that her teaching contract would not be renewed for the 2001 fall term. She was given the option to resign, and she did so. She was unsuccessful in finding another teaching position in and around Joplin. However, she was ultimately offered a teaching position in Kansas City, Missouri. She accepted the position and moved to Kansas City in August 2001.

As a result, Mr. Still filed a petition for modification of custody and a petition for contempt. Mr. Still claimed a material change in circumstances warranted a change in custody. At a temporary hearing, the trial court awarded temporary custody to Mr. Still. Following this ruling, Ms. Krumrey terminated her teaching position in Kansas City and moved to Bella Vista, Arkansas, Mr. Still's hometown, although she did not have a license to teach in Arkansas. Despite her efforts, on December 6, 2001, the trial judge awarded permanent custody of the minor child to Mr. Still. From that order comes this appeal.

A judicial award of custody should not be modified unless it is shown that there are changed conditions that demonstrate that a modification of the decree is 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 the trial judge or were not known by the chancellor at the time the original custody order was entered. Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767 (1996) (citing Stamps v. Rawlins, 297 Ark. 370, 761 S.W.2d 933 (1988)). The party seeking modification has the burden of showing a material change in circumstances. Carter v. Carter, 19 Ark. App. 242, 719 S.W.2d 704 (1986). The best interest of the child is the polestar in every child-custody case; all other considerations are secondary. Taylor v. Taylor, 345 Ark. 300, 47 S.W.3d 222 (2001). Chancery cases are reviewed de novo on appeal. Hobbs v. Hobbs, 75 Ark. App. 186, 55 S.W.3d 331 (2001). A trial judge's findings are not reversed unless this court determines that the findings are clearly erroneous. Id. Special deference is given to a trial judge's findings in child-custody cases because of the trial judge's superior position to determine witness credibility, testimony, and the best interest of the child. Id.

Appellant argues that it was uncontroverted that the sole basis for a change in the child's custody was moot at the time of the trial on the merits and that the trial court's decision to change custody must be reversed because the appellee failed to prove by a preponderance of the evidence that there had been a material change in circumstances and that such change had detrimentally affected the parties' child. We agree. In the case before us, the trial judge gave permanent custody to Mr. Still based on the following oral findings:

Ms. Krumrey kept moving further and further away from Mr. Still, which resulted in disruption after disruption of the father/child relationship and the opportunity for visitation that had been ordered. There have been orders entered that further moves were not to occur, and then there were agreements that a move could occur to one city and then there was a relocation to another one, and another relocation to another one even further away. There may have been justifications for those moves that were apparent after the fact.

. . . There has been no evidence directly given that [Ms. Krumrey] could have gotten a job here, but it does not seem very likely to me, given the circumstances in which we all live here in Northwest Arkansas that she simply could not have gotten a job here. Those things cause me to be further convinced that it was her intention to get away from Mr. Still.

. . . I believe that Mr. Still is an overly controlling and possessive person and that he uses that power to do things that cause the relationship between him and his ex-wife to be very unhappy.

Her reaction to that was to get as far away as she could get as often as she could. Unfortunately, that resulted in a violation of this Court's orders and a violation of the duty to not interfere with the parent/child relationship with the noncustodial parent.

The ideal is that these folks will divide Cole's time equally between them. That is what the Court would like to see and that is the reason that I am saying that on those times when Ms. Krumrey is not working, Cole may be in her care, with the exception of the mornings he is left at Ms. Key's until noon. That is an arrangement that is stable, has been in place for a while, and it shall continue.

First, in his findings, the trial judge based his decision to give Mr. Still permanent custody of the parties' minor child on the fact that Mr. Still's visitation was disrupted by Ms. Krumrey's move to Kansas City, Missouri. However, there is no evidence in the record that Mr. Still missed any visitation due to Ms. Krumrey's move to Kansas City. Second, the trial judge found Ms. Krumrey had the ulterior motive of trying to "get as far away as she could" from Mr. Still. In fact, the evidence showed that each move was the result of employment related issues and opportunities. Although there was evidence that her first move to Pineville, Missouri, was preceded by a harassment suit against Mr. Still, Ms. Krumrey moved to Joplin, Missouri, with the Court's approval, to take a teaching position. She later took a teaching position in Carl Junction, Missouri, only a few miles from Joplin. Upon learning that her contract would not be renewed in Carl Junction, she began unsuccessfully searching for a teaching position in and around Joplin. She eventually found a teaching position in Kansas City, Missouri. Ms. Krumrey testified that she did not look for employment in Arkansas because her Arkansas teaching certification had expired. Eventhough the trial judge found Mr. Still was "overly controlling and possessive," he found Ms. Krumrey caused a detrimental effect on Mr. Still's relationship with the child by moving. Finally, the trial judge stated that "I am going to order that permanent custody be left with Mr. Still and that visitation be left with the mother," when at the time of the hearing Ms. Krumrey had permanent custody of the child. The record in this case simply does not support the finding that there was a material change in circumstances.

The trial judge found that Ms. Krumrey had violated the Court's orders in moving north of Joplin, Missouri, and had thereby interfered with the parent/child relationship of the noncustodial parent. Based solely on this finding, custody was removed from her and awarded to Mr. Still.

This court stated in Hepp v. Hepp, 61 Ark. App. 240, 968 S.W.2d 62 (1998) that:

[V]iolat[ion of] the court's previous directives does not compel a change in custody. The fact that a party seeking to retain custody of a child has violated court orders is a factor to be taken into consideration, but it is not so conclusive as to require the court to act contrary to the best interest of the child. Johnson v. Arledge, 258 Ark. 608, 527 S.W.2d 917 (1975). To hold otherwise would permit the desire to punish a parent to override the paramount consideration in all custody cases, i.e., the welfare of the child involved. Id. Moreover, to ensure compliance with its orders, a chancellor has at his or her disposal the power of contempt. And, we have said that a court's contempt powers should be used prior to the more drastic measure of changing custody, Carter v. Carter, 19 Ark. App. 242, 719 S.W.2d 704 (1986), which is in keeping with the principle that custody is not to be changed merely to punish or reward a parent. Harvell v. Harvell, 36 Ark. App. 24, 820 S.W.2d 463 (1991).

Id. at 254, 968 S.W.2d at 70. Further, in order for custody to be changed, there must not only be proof of a material change in circumstances, but that proof must also be accompanied by evidence that the change in custody would be in the child's best interest. Hepp, supra. (Emphasis in original.). Our reasons for requiring more stringent standards for modification than for initial determinations of custody are to promote stability and continuity in the life of a child, and to discourage repeated litigation of the same issues. Id.

The trial judge referred in his findings to the order, agreed to by the parties, that Ms. Krumrey move no further north than Joplin, Missouri. However, while a temporary agreement is of some importance in showing the parties' attitudes, it should be viewed as nothing more than an indicator of the parties' attitudes on relocation. See Parker v. Parker, 75 Ark. App. 90, 55 S.W.3d 773 (2001) (citing Henkell v. Henkell, 224 Ark. 366, 273 S.W.2d 402 (1954)).

Even were we to accept that a material change in circumstances was proven in this case, we would still be compelled to reverse because there was no determination that the change of custody was in the best interest of the child. Notably, the trial judge never mentioned the best interest of the child in either his oral findings or his written order. As previously stated, the best interest of the child is the polestar in every child-custody case, and all other considerations are secondary. Hollandsworth v. Knyzewski, 78 Ark. App. 190, 79 S.W.3d 856 (2002). In this case, no evidence was presented that it was in the child's best interest to change custody. In fact, neither parent could find true fault with the other's parenting skills and abilities. Mr. Still's only complaint was that he felt that he was being deprived of seeing his son as much as he liked following Ms. Krumrey's move to Kansas City; however, no evidence was presented that his visitation was disrupted due to the move or that suitable alternative visitation was not available. See Staab v. Hurst, 44 Ark. App. 128, 868 S.W.2d 517 (1994) (holding that the chancellor's ruling was made without appropriate consideration of the child's best interest, the well-being of the custodial parent, and without consideration of the possibility of alternatives to the existing visitation schedule). The court in Staab stated that "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." Staab, 44Ark. App. at 134, 868 S.W.2d at 519 (quoting D'Onofrio v. D'Onofrio, 144 N.J.Super. 200, 365 A.2d 27, 30, aff'd 144 N.J.Super. 352, 365 A.2d 716 (App.Div.1976)). Moreover, at the time of the final hearing, Ms. Krumrey had moved back to Bella Vista, Arkansas.

A custodial parent's relocation for employment and education opportunities is not in and of itself a material change in circumstances to warrant a change of custody. See Gerot v. Gerot, 76 Ark. App. 138, 61 S.W.3d 890 (2002) (reversing a trial judge's decision changing custody to the noncustodial father because there was neither allegation nor proof of a material change of circumstances and remanding for reconsideration of the appellant and custodial mother's petition to relocate to Florida where she had obtained more attractive employment); see e.g. Hass v. Hass, 74 Ark. App. 49, 44 S.W.3d 773 (2001) (reversing the trial judge's decision in an intrastate relocation case to prohibit the custodial mother from moving to El Dorado from Fayetteville to accept better employment); Wagner v. Wagner, 74 Ark. App. 135, 45 S.W.3d 852 (2001) (affirming a trial judge's decision to allow relocation to Florida because the custodial parent had a job opportunity there and would be near her mother); Friedrich v. Bevis, 69 Ark. App. 56, 9 S.W.3d 556 (2000) (affirming a chancellor's decision to allow a relocation to Texas because the custodial parent had obtained a better-paying job with less travel); Wilson v. Wilson, 67 Ark. App. 48, 991 S.W.2d 647 (1999) (affirming the chancellor's decision to allow relocation to California because the custodial parent felt she could find employment there). Moreover, in Parker, supra, we reversed a chancellor's denial of a petition to relocate holding that appellant met her threshold burden of demonstrating a real advantage to the family unit in moving from Jonesboro to Little Rock where testimony indicated that a portion of the reason for appellant's desire to relocate was that she had a job offer at a school in Little Rock; she wanted to further her education by pursuing a Ph.D. in School Psychology at the University of Central Arkansas; and she wanted to remove her family fromthe acrimony and embarrassment caused by the divorce, by appellee's obsessive behavior, and by appellee's relationship with a much younger woman.

Although Mr. Still's testimony regarding a harassment suit filed against him by Ms. Krumrey demonstrated that some conflict had existed between Ms. Krumrey and Mr. Still, it is nonetheless clear that her decisions to move were based primarily on employment opportunities. The trial judge found that "it does not seem very likely to me, given the circumstances in which we all live here in Northwest Arkansas that she simply could not have gotten a job here. Those things cause me to be further convinced that it was her intention to get away from Mr. Still." Yet, after the temporary change of custody was granted, Ms. Krumrey gave up her new teaching position in Kansas City and moved to Bella Vista to be near her child. As a result of this move, she was forced to accept substitute teaching positions in the Bentonville School District because the schools in the area were not hiring. She continued to accept long-term substitute teaching positions; but, contrary to the trial judge's finding, her career opportunities were sharply curtailed by returning to Northwest Arkansas. We conclude that Ms. Krumrey had legitimate reasons for her relocation from Joplin to Carl Junction and Kansas City, and her relocation did not present a material change of circumstances meriting a change of custody.

Because Mr. Still failed to prove a material change in circumstances, the trial court's decision to award permanent custody of the parties' minor child to him was clearly erroneous. We reverse and remand this matter to the trial court for entry of an order consistent with this opinion, reinstating permanent custody with Ms. Krumrey.

Stroud, C.J., and Neal, J., agree.