John David Rawe, Jr. v. Christa S. Rawe
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ARKANSAS COURT OF APPEALS
JUDGE DAVID M. GLOVER
DIVISION I
CA06-1063
October 3, 2007
APPEAL FROM THE WHITE
COUNTY CIRCUIT COURT
[DR-04-541]
JOHN DAVID RAWE, JR.
APPELLANT
V.
CHRISTA S. RAWE
APPELLEE
HONORABLE R. CRAIG HANNAH,
JUDGE
AFFIRMED IN PART; DISMISSED IN
PART ON DIRECT APPEAL; CROSSAPPEAL DISMISSED
The parties in this case met over the internet. Appellant, David Rawe, is from
Arkansas and appellee, Christa Rawe, is from Australia. The parties were married on
November 16, 2002, in Arkansas. Christa became pregnant, and she and David traveled
to Australia to visit her family. Christa was required to sponsor David so that he could
enter Australia because he had a thirteen-year-old felony conviction. Complications in
her pregnancy arose while in Australia that prevented Christa from traveling, and the
couple’s son, Jake, was born in Bendigo, Australia, on October 19, 2003. Jake is a dual
citizen of Australia and the United States. The parties returned to Arkansas in February
2004 and moved in with David’s parents in El Paso, Arkansas. Christa sought permanent
residency status in the United States, which was granted in July 2004.
On July 20, 2004, telling David that she was going shopping, Christa took Jake
and never returned home. David searched to no avail for his wife and son, and he then
filed for divorce on July 22, 2004. David eventually located Christa and Jake in Australia
in September 2004, and he finally was able to talk to Jake in November 2004. After
protracted legal proceedings, an Australian court ordered Jake to be returned to the United
States; Christa returned with Jake, and David began exercising visitation on December
15, 2005.
At the hearing on January 6, 2006, Christa testified that she left David because of
his alcohol problems, his temper, and his violence. Several of her friends, from both
Australia and Arkansas, testified regarding David’s problem with alcohol and his temper.
David, his parents, and two of his friends testified that David was sober and did not have
a temper problem. Christa testified that she left in the manner she did because she did not
have a place to go where she felt safe in the United States. In defense of her actions in
not notifying David of his son’s whereabouts for almost two months, she stated that she
had removed her son from what she considered to be an unsafe environment. She also
testified that she never intended to make Arkansas her home for the rest of her life; she
only filed for permanent residency in the United States to make it easier to travel through
customs. Christa requested custody of Jake as well as permission to return to Australia.
The trial court granted the decree of divorce and awarded Christa custody of Jake
after the January 6, 2006 hearing, but reserved the issues of relocation, visitation, and
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child support.
On February 6, 2006, an in-chambers conference was held on these
outstanding issues. The trial court granted Christa permission to return to Australia with
Jake, set forth a visitation schedule, and ordered child support to be paid at a reduced rate
of seventy-seven dollars per week beginning February 10, 2006. The trial court also
denied Christa’s request for child support retroactive to the date David filed for divorce.
The trial court’s grant of Christa’s petition to relocate with Jake to Australia
allowed them to immediately leave for Australia, but the trial court granted David
visitation with Jake from 5:00 p.m. on February 6 to 8:00 a.m. on February 8. The trial
court also noted that Christa and Jake had been in Arkansas for sixty-two days and that
David had received visitation. The trial court ordered that neither party was required to
travel for visitation in 2006, but that David could travel to Australia for visitation with
Jake as set forth in the visitation order.
The terms of visitation, set forth in the
supplemental decree to establish visitation and support, provided:
[Christa] has testified that she will receive two weeks paid vacation a year once
she obtains employment in Australia. In 2007 and 2008, [Christa] will come to
Arkansas with Jake during her vacation. [Christa] shall give [David] a minimum of
sixty (60) days notice of her anticipated arrival and departure dates in Arkansas.
[David] will be entitled to visit with Jake a minimum of four hours a day Monday
through Thursday with Jake being returned to the care of [Christa] at night.
[David] will further be entitled to weekend visitation with Jake from 6:00 p.m.
Friday until 6:00 p.m. Sunday along with any other reasonable visitation which can
be arranged by mutual agreement between the parties.
In 2007 and 2008, [David] shall travel to Australia to visit with Jake for a
minimum of two weeks. [David] shall give [Christa] a minimum of sixty (60) days
notice of his anticipated arrival and departure in Euchua. [Christa] [sic] will be
entitled to visitation with Jake each day that Jake is not in school from 8:00 a.m.
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until 6:00 p.m. and for two hours per day when Jake is in school. [David] will
further be entitled to weekend visitation with Jake from 6:00 p.m. Friday until 6:00
p.m. Sunday along with any other reasonable visitation which can be arranged by
mutual agreement between the parties. If [David] should stay longer than six (6)
weeks in Euchua, Australia, then weekend visitation shall be on alternate
weekends after the sixth week.
Beginning in 2009 and continuing in odd numbered years thereafter, [Christa] shall
be released from her obligation to travel to Arkansas for two weeks. [David] shall
be entitled to annual visitation during Jake’s long break from school (Christmas
break). In 2009, Jake shall visit with [David] in Arkansas during his six week
break from school, with said visitation period to include transportation to and from
the United States. Said visitation is conditioned upon [David] having had
significant contact with Jake via telephone and/or webcam and [David] having
traveled to Australia to visit with Jake for a minimum period of two weeks each
year in 2007 and 2008. Further, given the young age of Jake and the length of this
visitation period, visitation may be amended upon good showing by [Christa]. If
[Christa] is able to arrange to be in Arkansas during all or a portion of the
visitation period, [Christa] shall be entitled to telephone contact and “visitation”
with Jake. The parties shall arrange visitation to transition Jake into extended time
with [David].
Beginning in 2010 and continuing in even numbered years thereafter, the minor
child shall be with [Christa] for Christmas Eve and Christmas Day in Australia.
The parties shall arrange [David’s] visitation with Jake so that [David] receives the
maximum number of days of visitation in the United States with Jake during the
six week Christmas break, taking into account [Christa’s] right to Christmas Eve
and Christmas Day visitation with Jake in Australia and travel time to and from the
United States.
Beginning in 2009, [Christa] shall bring the minor child to the United States to
begin visitation. Unless [Christa] intends to travel to Arkansas with the minor
child, visitation exchange shall be in Los Angeles, California, or any other U.S.
city designated at the child’s site of entry into the U.S. It shall be the
responsibility of [David] to return Jake to Melbourne, Australia to the care and
custody of [Christa]. If [David] should elect to remain in Australia to visit with
Jake, [David] shall be entitled to reasonable visitation with the minor child.
[David] shall be entitled to telephone contact or internet contact via webcam with
Jake twice a week, on the holidays of Easter, Memorial Day, July 4th, Labor Day,
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Thanksgiving Day, Christmas Day, and Jake’s birthday. [David] shall contact Jake
at 8:30 p.m. Australian time pursuant to the time zone at Jake’s home or location.
[Christa] shall notify [David] if Jake will not be available at 8:30 p.m. on any of
the aforesaid days and arrange a different day and/or time to contact Jake. Within
forty-five (45) days of the date of her return to Australia, [Christa] shall establish
an internet account and purchase a webcam so as to be able to receive internet
contact by webcam from [David].
On appeal, David argues that the trial court erred (1) in awarding Christa custody
of Jake; (2) in allowing Christa to relocate to Australia; and (3) in allowing him only
limited visitation with Jake. Christa cross-appeals, arguing that the trial court erred in
failing to award her child support from the date David filed for divorce until the entry of
the divorce decree and by deviating from the family support chart by decreasing David’s
child-support obligation. We affirm in part and dismiss in part on direct appeal, and we
dismiss the cross-appeal.
Cases sounding in equity are reviewed de novo, and the appellate court will reverse
a trial court’s findings only if they were clearly erroneous or clearly against the
preponderance of the evidence; a finding is clearly erroneous when the reviewing court,
on the entire evidence, is left with the definite and firm conviction that a mistake has been
committed. Ford v. Ford, 347 Ark. 485, 65 S.W.3d 432 (2002). Due deference is given
to the trial court’s superior position to determine witness credibility and the weight to be
given their testimony. Id. Great deference is given in child-custody cases to the trial
court’s findings, and the best interest of the child is the polestar in custody cases – all
other considerations are secondary. Id.
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Custody
David’s first point of appeal is that the trial court erred in awarding custody of
Jake to Christa. We are unable to reach the merits of this argument because of procedural
deficiencies. In his notice of appeal, which was faxed to the courthouse and filed on June
23, 2006, and followed by the hard copy, which was filed on June 26, 2006, David
specifically appeals only from the Supplemental Order and the Supplemental Decree to
Establish Visitation and Support, both entered on May 26, 2006. However, the award of
Jake’s custody to Christa was given in the divorce decree, filed of record on February 6,
2006.
Rule 3(e) of the Rules of Appellate Procedure – Civil provides, “A notice of
appeal . . . shall specify the party or parties taking the appeal; shall designate the
judgment, decree, order or part thereof appealed from; and shall designate the contents of
the record on appeal.” In Arkansas Department of Human Services v. Shipman, 25 Ark.
App. 247, 253, 756 S.W.2d 930, 933 (1988), this court held
that a notice of appeal must be judged by what it recites and not what it was
intended to recite. It must state the parties appealing and the order appealed from
with specificity, and persons not named as parties to the notice and orders not
mentioned in it are not properly before the appellate court.
Here, David made no mention in his notice of appeal of the divorce decree; because the
notice of appeal does not designate the divorce decree, in which the trial court granted
custody of Jake to Christa, as one of the orders appealed from, this court does not have
jurisdiction to entertain David’s argument pertaining to custody.
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Relocation
David next argues that the trial court erred in allowing Christa to relocate to
Australia with Jake. In support of this argument, he cites Hollandsworth v. Knyzewski,
353 Ark. 470, 109 S.W.3d 653 (2003). Hollandsworth established a presumption in favor
of relocation for custodial parents with primary custody, holding that the custodial parent
no longer was required to prove a real advantage to them and the children in relocating,
and that it was the noncustodial parent’s burden to rebut the presumption to relocate. Our
supreme court held that the polestar in making relocation decisions was the best interest
of the child, and it set forth five matters to be considered in making a relocation decision:
(1) the reason for the relocation; (2) the educational, health, and leisure
opportunities available in the location where 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.
353 Ark. at 485, 109 S.W.3d at 663-64.
In this case, Christa wanted to relocate because she was an Australian citizen and
her only tie to Arkansas was David. She had a job in Australia, and she owned real and
personal property in Australia. Christa wanted to return to Australia after her marriage
failed.
There was no testimony that the educational opportunities were deficient in
Australia, and in fact, there was favorable testimony with regard to the health care. Jake
was too young to express a preference as to where he lived; for that reason, the fifth factor
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had no bearing in this case. While it is true that David’s extended family, especially his
parents, would no longer be able to see Jake on a regular basis, a relationship with
grandparents is not sufficient to rebut the presumption to relocate. See Blivin v. Weber,
354 Ark. 483, 126 S.W.3d 351 (2003). Christa’s parents live several hours from her in
Australia, so Jake would have some extended family near him.
Applying the
Hollandsworth factors, we hold that the trial court’s decision to allow Christa to relocate
to Australia with Jake was not clearly erroneous.
Visitation
David’s last point of appeal is that the trial court erred in granting him limited
visitation. We disagree. We believe that the trial court did the best it could in a very
unfortunate situation. In this case, the parties do not merely live in different cities or
different states, but rather they live on different continents. Although in his argument
David classifies the visitation as “minimal to the point of being negligible,” the visitation
schedule, set forth above, allows David to have substantial periods of visitation with Jake,
both in Australia and in Arkansas. David argues that the visitation schedule is not in
Jake’s best interest because it provides only limited contact between father and son.
However, due to the circumstances of this case, a standard visitation schedule was not
feasible and visitation logically was limited to several expanded blocks of time, in
addition to telephone and computer visitation. This is not an ideal situation because the
parties live on separate continents and the noncustodial parent will necessarily have less
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frequent face-to-face visitation as a result of that fact. On these facts, we hold that the
trial court’s visitation schedule is not clearly erroneous.
Cross-appeal
Christa has filed a cross-appeal, arguing that the trial court erred in refusing to
order David to pay child support retroactively from July 22, 2004, and in deviating in a
downward manner from the amount of child support indicated in the Family Support
Chart. The cross-appeal is untimely and is dismissed.
David’s notice of appeal was first filed by fax on June 23, 2006, and the hard copy
notice of appeal was filed three days later, on June 26, 2006, from two orders entered on
May 26, 2006. Christa’s notice of cross-appeal was not filed until August 28, 2006. Rule
4(a) of the Rules of Appellate Procedure – Civil provides that “a notice of cross-appeal
shall be filed within ten (10) days after receipt of the notice of appeal, except that in no
event shall a cross-appellant have less than thirty (30) days from the entry of the
judgment, decree or order within which to file a notice of cross-appeal.” In the June 26
notice of appeal, David’s attorney certified that a copy of the notice of appeal was sent
via facsimile and/or in the mail to Christa’s attorney on June 23, 2006. In the notice of
cross-appeal, Christa’s attorney stated that notice of David’s appeal was not obtained
until August 17, 2006, and the notice of cross-appeal was filed on August 28.
In this case, other than Christa’s attorney’s statement, we have no proof with
which to determine whether the cross-appeal was timely. Jurisdiction is a matter this
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court can raise on its own accord, and we simply cannot determine that we have
jurisdiction to hear a cross-appeal based upon a bare assertion by an attorney. The notice
of appeal was filed on June 23, 2006. Christa made no showing that she did not receive
David’s notice of appeal within ten days of filing her cross-appeal. Therefore, we have
no proof before us that the notice of appeal was not received until August 17, and we
dismiss the cross-appeal as untimely. See Byndom v. State, 344 Ark. 391, 39 S.W.3d 781
(2001).
Affirmed in part and dismissed in part on direct appeal; cross-appeal dismissed.
H EFFLEY, J., agrees.
V AUGHT, J., concurs.
L ARRY D. V AUGHT, Judge, concurring. Although I agree with the reasoning and
results contained in the majority opinion, I write separately to bring attention to an often
overlooked rule of appellate procedure. Rule 3(f) of the Arkansas Rules of Appellate
Procedure – Civil requires that “[a] copy of the notice of appeal or cross-appeal shall be
served by counsel for appellant or cross-appellant upon counsel for all other parties by
any form of mail which requires a signed receipt.” (Emphasis added.) In this case, the
litigants—both the appellant and cross-appellant—failed to serve their notices by signedreceipt mail as required by our rules. While their non-compliance does not impact the
validity of the appeal, it does complicate our determination of jurisdiction to hear the
cross-appeal.
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Here, had the notice of appeal been served by signed-receipt mail, we would know
definitively when appellee received her copy of the notice. We would then apply Rule
4(a) of the Rules of Appellate Procedure – Civil and require that the notice of crossappeal be filed within “ten (10) days after receipt of the notice of appeal.” Without
compliance with Rule 3(f), it is extremely difficult to engage in a jurisdictional
determination that is dependent on the “receipt” of a notice. As such, we encourage the
bar to take note of this rule, and we use the complications surrounding the cross-appeal in
this case as evidence of the rule’s utility.
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