Byrd v. Vanderpool
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ARKANSAS COURT OF APPEALS
DIVISION III
CA07-1313
No.
Opinion Delivered
January 7, 2009
APPEAL FROM THE BENTON
COUNTY CIRCUIT COURT,
[NO. DR-04-295-5]
PAULA VANDERPOOL BYRD
APPELLANT
V.
HONORABLE XOLLIE DUNCAN,
JUDGE
CLIFFORD V. VANDERPOOL, III
APPELLEE
REVERSED ON DIRECT APPEAL;
AFFIRMED ON CROSS APPEAL
LARRY D. VAUGHT, Chief Judge
This child-custody appeal raises two issues. The first issue is whether the trial court
erred in determining that a material change in circumstances occurred authorizing it to revisit
the issue of child custody. The second is whether the trial court erred in determining that a
joint-custody arrangement was in the best interest of the parties’ minor children. Because the
record does not support the initial-material-change-of-circumstances finding, we do not
address the secondary question of joint custody. This appeal also contains a cross appeal
alleging that the trial court erred in its refusal to find appellant in contempt of court. We hold
that the trial court did not abuse its discretion and affirm.
Appellant Paula Vanderpool Byrd and appellee Clifford Vanderpool were married in
1988. They were granted an absolute divorce by the Circuit Court of Benton County,
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Arkansas, on September 22, 2004. The divorce decree was filed on October 12, 2004.
Appellant was granted primary custody of the parties’ two minor children.
On June 6, 2005, appellant filed a petition for contempt and modification of child
support. Specifically, appellant requested that the trial court increase appellee’s child-support
payments and hold him in contempt for failure to make certain payments required by the
decree, including payments for health and dental insurance premiums for the children.
Appellee denied the allegation and filed a counter petition for contempt, alleging that
appellant violated the terms of the divorce decree by making derogatory comments about him
in front of the children.
The court heard the parties’ respective petitions on September 22, 2005. It granted
appellant’s petition for an increase in child support. The court also found both parties in
willful contempt—appellant for making derogatory statements about appellee in the presence
of the children and appellee for failing to pay insurance premiums. A review and sentencing
hearing was set for November 7, 2005. After the hearing on November 7 (and by order
entered November 9), the court directed each to serve specified weekends in the Benton
County Jail. The court also ordered the parties to communicate by telephone every Monday
at 9:00 p.m.
On July 31, 2006, appellee filed a petition for contempt and for modification of
custody, alleging that appellant had violated the court’s November 9, 2005, order by
continuing to make derogatory comments about him in front of the children and failing to
“participate appropriately” in the parties’ mandated telephone calls. Appellee claimed that this
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conduct constituted a material change in circumstances and asked the court to award him
primary custody of the minor children. Appellant denied those allegations and further denied
that appellee should be awarded custody. Appellant also filed a counterclaim for contempt and
modification, asserting that appellee failed to communicate with her and made derogatory
remarks about her in the presence of the children.
The parties’ claims were heard on March 7, 2007. The trial court found that there had
been a material change in circumstances and by order entered July 31, 2007, ruled that the
parties should have joint custody of the children. The order set forth a series of rules and
procedures for the parties to follow regarding visitation and communication that would
minimize the length and number of contacts the parties would have with each other,
especially in the presence of the children. The court also ordered counseling for both the
children and the parties. It declined to hold either party in contempt, but warned that—based
on the parties’ history in this case—any future willful violations of the court’s orders would
result in a “lengthy incarceration.”
On July 31, 2007, appellee filed a motion for reconsideration wherein he asked the
court to amend its initial order to address certain issues that had not been previously resolved.
The court entered an amended order on August 30, 2007, and it is from that amended order
that appellant appeals and appellee cross appeals.
Our supreme court has noted that “the primary consideration in child-custody cases
is the welfare and best interest of the children; all other considerations are secondary.”
Hamilton v. Barrett, 337 Ark. 460, 466, 989 S.W.2d 520, 523 (1999). We review child-custody
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cases de novo and apply a “clearly erroneous” standard to the trial judge’s findings. Dansby v.
Dansby, 87 Ark. App. 156, 189 S.W.3d 473 (2004). A finding is clearly erroneous when,
although there is evidence to support it, the reviewing court is left with a definite and firm
conviction that a mistake has been made. Smith v. Parker, 67 Ark. App. 221, 998 S.W.2d 1
(1999).
First we address the court’s changed-circumstances finding. It is essential that a material
change in circumstances affecting the best interests of a child must be shown before a court
may modify an order regarding child custody. Thompson v. Thompson, 63 Ark. App. 89, 974
S.W.2d 494 (1998). And, the burden of proving that the conditions have so materially
changed as to warrant modification and that the best interest of the child requires a change
of custody is on the party seeking modification. Word v. Remick, 75 Ark. App. 390, 58 S.W.3d
422 (2001). In this case, the rationale for the trial court’s conclusion that a material change in
circumstances had occurred was stated as such:
The Court finds from the testimony, the credibility of the witnesses, the
exhibits and other matters considered by the Court, that it appears that Susan
Monson [the children’s counselor] and this Court are concerned about the
impact the two parents’ behavior is having on the minor children, Joshua
Vanderpool and Ethan Vanderpool, and are concerned enough to want to do
something about it. However, the Court is concerned that both parents are
more concerned with harboring their anger and resentment toward the other
parent and seizing every opportunity to point out the other’s faults than with
how sad [sic] and the impact they are having on the minor children.
Because the trial judge in this case did not make specific findings of fact to support her
conclusion that a material change in circumstances had occurred, we are required to review
the evidence in the record regarding allegedly changed circumstances de novo. Hamilton v.
Barrett, 337 Ark. 460, 989 S.W.2d 520 (1999).
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After conducting a de novo review of the record, we conclude that as a matter of law
the trial court’s changed circumstances finding cannot stand. First, according to both the
children’s counselor and attorney ad litem, the children of this turbulent couple have escaped
from their parents’ child-like gamesmanship relatively unscathed. The professionals both noted
that it is the parents, not the children, who are in need of assistance and counseling. Second,
the specific incidents that appellee argues support a changed circumstance are trivial, at best.
The highlights include: 1) an alleged “stomping around” and “ranting and raving” about
missing coats following an exchange of custody; 2) a disagreement about which of the two
bags of laundry that the children brought home from a ski trip were clean versus dirty; 3) the
appropriateness of attending a Super Bowl party with the children in tow; 4) a shoulder slap,
followed by a “thank you,” that appellee took to mean as a sarcastic gesture relating to the
consequences of his failure to participate in court ordered Monday telephone calls with
appellant; 5) an incident where appellant nudged between appellee and his current wife during
a parents’ group baseball discussion with their son’s coach; and 6) the fact that appellant used
a “clucking chicken” ring tone to identify appellee’s calls and referred to him by his nickname
“Cliffy” when they would speak privately.
Appellee seems to concede that any of these “incidents,” taken separately would not
justify changed circumstances, but he contends that “when taken as a whole, the evidence
supports [the] conclusion that appellant was not fostering his relationship with the children.”
Appellee then directs this court’s attention to Sharp v. Keeler, 99 Ark. App. 42, ___ S.W.3d
____ (2007), for the proposition that a custodial parent’s failure to foster the relationship
between a child and the non-custodial parent constitutes a material change of circumstances.
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In Keeler, we affirmed a trial court’s finding of a material change in circumstances. The court
noted that the record was replete with evidence that the custodial parent was attempting to
alienate the non-custodial parent from his son—including evidence that she refused to keep
the father apprised of the child’s medical information (and the child had serious health
problems); that she failed to have the child ready for visitation; that she failed to tender the
child for scheduled visitation when she felt it was in the child’s best interest; and that she
would not allow the father to babysit the child. This was all done following the trial court’s
admonishment that she “promote the bond and relationship” between the child and the noncustodial father. Id.
In this case, we are convinced that the scattering of petty complaints does not amount
to a “failure to foster” of a significant degree to support a finding of changed circumstances.
However, we would be remis if we failed to note that it is apparent from the final order that
the trial court made a valiant effort to navigate a tumultuous situation with a creative solution
that would best serve the needs of the parties’ children. Unfortunately, because the solution
was premised on a clearly erroneous foundation, we are forced to order reversal. Further,
because we conclude as a matter of law that no changed circumstances exist, there is no need
to examine the merit (or lack thereof as the case may be) of the trial court’s joint-custody
award.
Finally, we turn our attention to the cross appeal challenging the trial court’s refusal
to find appellant in contempt of court. We review a trial court’s refusal to punish an alleged
contemnor using an abuse-of-discretion standard. Page v. Anderson, 85 Ark. App. 538, 157
S.W.3d 575 (2004). In support of reversal, appellee argues that appellant made a change to the
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children’s health insurance without notification to him, which resulted in retroactive
reimbursement. While this might be true, appellee fails to connect this act with a specific
court order. Thus, it cannot be said that the trial court abused its discretion in its refusal to
hold a party in contempt for violating one of its own orders. As such, we affirm.
Reversed on direct appeal; affirmed on cross appeal.
G LOVER AND M ARSHALL, JJ., agree.
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