Andrea Shipman Kiddy v. Jason Shipman

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

ANDREA SHIPMAN KIDDY

APPELLANT

V.

JASON SHIPMAN

APPELLEE

CA04-402

January 19, 2005

APPEAL FROM THE UNION COUNTY CIRCUIT COURT

[NO. E 2001-621-2]

HON. EDWARD P. JONES,

JUDGE

REVERSED AND REMANDED

Robert J. Gladwin, Judge

Appellant Andrea Kiddy (formerly Shipman) and appellee Jason Shipman were married in July 1998 and divorced in December 2001. At the time of their divorce, the parties agreed that appellant should have custody of their son, N.S. On December 11, 2002, appellant sought approval from the Union County Circuit Court to move to California but, following a hearing on the matter, her request was denied. On or about May 15, 2003, appellant moved to Tennessee with N.S. and married Terry Kiddy on May 31, 2003. Appellee filed a motion seeking a change of custody, alleging that there had been a "substantial change in circumstances." The trial court entered an order on September 23, 2003, granting appellee's motion and ordering that custody of N.S. be changed from appellant to appellee. Appellant raises two points on appeal: (1) the trial court erred because her relocation with N.S. alone was not a material change of circumstances and because appellee, as the noncustodial parent, failed to rebut the presumption in favor of relocation;

(2) the trial court failed to make a finding that there was a material change of circumstances to justify the modification of custody. We reverse and remand.

In denying appellant's request to move to California, the trial court, in its order entered May 7, 2003, found that for months after their divorce, both parties worked shifts and that, although appellant had custody of their child, appellee cared for N.S. "more than is normal with a non-custodial parent." The court noted that the arrangement between the parties continued until shortly before appellee remarried and that thereafter his visitation with the child was limited by appellant to alternate weekends. The court found that, in her petition for the move, appellant stated that she would have employment with a relative and would reside with her parents. In denying her request to move to California, the trial court found that the close relationship between appellee and N.S. was likely to dissipate because the distance between the parties' homes would limit appellee to having N.S. for summer vacation. While recognizing that obtaining better employment was in the best interest of both parent and child, the court found that the possible harm to N.S. outweighed the job opportunity for appellant. In addition, the court denied appellee's request for a change of custody.

On May 29, 2003, appellee petitioned the court to modify its May 7, 2003 order because appellant had violated a court order and had lied to the court about her relationship with a certain man. Appellee alleged that those two things constituted a substantial change of circumstances. Specifically, appellee alleged that, immediately following the court's decision denying her request to move to California, appellant took N.S. and moved to Tennessee. He also alleged that appellant was living with Terry Kiddy without being married to him and that she was pregnant.

Appellant filed an amended counter-petition for modification of the May 7, 2003 order to allow relocation. In her petition, appellant alleged that there had been a significant change in circumstances that would justify allowing her to move with N.S. to Tennessee. Appellant stated that she had remarried and was residing with her new husband in Savannah, Tennessee, along with N.S., who had started public school there. Appellant alleged that the parties had been cooperating with regard to visitation and that the relationship between appellee and N.S. had not suffered despite the distance between the parties' homes.

At the hearing on September 18, 2003, appellant denied telling the court that Kiddy was only a friend. She testified that Kiddy worked full-time, which allowed her to be a stay-at-home mom for N.S. and for his soon-to-be half-sibling. Appellant stated that she moved to Tennessee to be with her new husband. She stated that, although the court had denied her request to move to California because the relationship between appellee and N.S. would be interrupted, that relationship had not suffered since her move to Tennessee because she drove back and forth so that visitation would continue. According to appellant, visitation was not interrupted until N.S. started school. She testified that she had offered many weekend visits to appellee but that he did not want to meet her half way in Forrest City. Appellant further testified that if the court granted her request to move to Tennessee, she would drive N.S. to El Dorado to visit appellee. Appellant stated that appellee and N.S. talked often on the telephone and that she called appellee to discuss matters concerning N.S. According to appellant, appellee did not visit N.S. when they lived in El Dorado except on visitation days. She stated that her parents were planning to move to Tennessee. When questioned by the court, appellant testified that she learned of the court's order denying her request to move to California in mid-May and that she moved to Tennessee after she and Kiddy were married on May 31, 2003.

Terry Kiddy testified that he owned his house and could financially afford to support appellant and N.S. and pay child support for his two children. He also stated that his family lived nearby and that his mother and sister helped appellant with N.S.

The trial court's order entered on September 23, 2003, gave rise to this appeal. The trial court noted that appellant's previous request to move to California had been denied but that soon afterwards, without seeking approval from the court before doing so, appellant moved to Tennessee with N.S. to be with her new husband. In addressing the relocation issue, the court wrote:

As found previously when the motion by defendant to move to California was considered, the relationship of plaintiff and the child is closer than most noncustodial parents. It was found then not to be in the best interest of the child to move to California and the same would be true if the child moves to Tennessee. It would be impractical and prohibitively inconvenient for visits of the child with plaintiff to occur frequently enough to allow the relationship to continue. In Hollandsworth vs Knyzewsky, [353 Ark. 470, 109 S.W.3d 653 (2003)] the Arkansas Supreme Court set forth certain factors which should be considered when deciding if it is in the best interest of a child and the families involved to relocate. As stated previously, the reason for relocation by defendant is to reside in the home of her new husband. The educational, health, and leisure opportunities available in Tennessee and Arkansas appear to be comparable. The visitation and communication schedule for plaintiff as stated previously would be severely disrupted by the move to Tennessee. There is disagreement regarding the distance between Savannah, Tennessee and El Dorado, Arkansas but it appears to be some 6 to 8 hours drive time. The effect of the move on extended family relationships does not favor the move to Tennessee. Both plaintiff and defendant have extended family in the El Dorado, Arkansas area and there is no extended family in the Savannah, Tennessee area.

The child did not testify and his preference regarding custody is not known. He is also too young for his presence [sic] to be given much weight.

Therefore, for the above reasons, it is the conclusion of this Court that it is in the best interest of the child, [N.S.], to be in the custody of plaintiff and it should be changed to plaintiff from defendant.

For a trial court to change the custody of children, it must first determine that a material change in circumstances has transpired from the time of the divorce decree and, then, determine that a change in custody is in the best interest of the child. Lloyd v. Butts, 343 Ark. 620, 37 S.W.3d 603 (2001). Although we must presume that the trial court made the findings necessary to support its decision, the trial court made no mention of our supreme court's holding in Hollandsworth, supra, that relocation alone is not a material change in circumstances. The trial court cited Hollandsworth in its opinion but did not specifically state what material change in circumstances, other than relocation, had occurred. Instead, the opinion makes it appear as though the trial court went straight to the best-interest analysis because Hollandsworth is cited only for those factors to consider in determining what is in the best interest of the child. The supreme court stated that:

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.

Hollandsworth v. Knyzewski, 353 Ark. at 485, 109 S.W.3d at 663-664.

Significantly, the trial court did not note that the supreme court in Hollandsworth pronounced a presumption in favor of relocation for custodial parents with primary custody. The custodial parent no longer has to prove a real advantage to relocating. Id. Instead, the burden of proof is on the non-custodial parent to rebut the presumption. Id.

Because we hold that the trial court clearly erred with regard to the burden of proof, we reverse its decision to change custody and remand the case for the trial court to reconsider its rulings on both appellee's change-of-custody petition and appellant's petition for relocation in light of what Hollandsworth holds.

Reversed and remanded.

Hart and Baker, JJ., agree.