Lauren Hoover La Cerra Dickson Hoover Rogers PLLC

Lauren Hoover La. Cerra, Dickson, Hoover, & Rogers, PLLC 212 Center Street, 2 nd Floor Little Rock, AR 72201 www. ldhrlaw. com CASE LAW UPDATE 2017 -2018 LACERRA, DICKSON, HOOVER, & ROGERS PLLC

GARRISON V. AQUINO 2017 Ark. App. 338 (5 -24 -17) https: //opinions. arcourts. gov/ark/courtofappeals/en/item/300 252/index. do • Personal Injury Case, but interesting…. • Parents divorced. Mom has primary legal and physical custody of Teen. Dad exercises visitation but lives in Texas, while Mom and Teen live in Jonesboro. Plaintiff’s lawsuit alleged negligence against Teen and alleged that Austin’s negligence was imputed to Mom and Dad pursuant to Arkansas Code Annotated section 27 -16 -702 • 27 -16 -702(a)(1)(A) states that the application shall be signed by “either the father or mother of the applicant, if either is living and has custody. ” • Subsection (b)(1) imputes liability for the minor’s negligence or willful misconduct while driving to the person who signed the form, and subsection (c)(1) imputes liability to “any person who is required or authorized by subsection (a) of this section to sign the application” who causes, knowingly causes, or permits his or her child to drive. • First, it is not supported by the plain language of the statute, which does not cover Al. Second, even if liability could be imputed to Al under the statute if he had “permitted” Austin to drive, the court correctly found that Al had no legal authority to do so while Austin was in Carrie’s custody. Because Al did not sign Austin’s application form, the only subsection of the statute upon which Sue can rely to claim imputed liability is subsection (c)(1) • However, this subsection does not apply to all parents; it applies only to a person who is required or authorized by subsection (a) to sign the form. Subsection (a) allows either parent to sign the form “if either is living and has custody” of the minor. Here, Al did not have custody of Austin and therefore would not have been authorized to sign under subsection (a).

JONES V. SANCHEZ 2017 Ark. App. 461 (9 -20 -17) https: //opinions. arcourts. gov/ark/courtofappeals/en/item/300622/index. do • On September 20, 2016, April Sanchez petitioned for an order of protection for herself and her daughter, A. J. The petition stated that A. J. ’s father, Jones, was currently incarcerated but was scheduled to be released within thirty days. In her accompanying affidavit, Sanchez alleged that Jones had been increasingly angry and hostile toward her and had threatened to kill her and kidnap their daughter once he was released from prison. These threats had been made to her both over the phone and in person when she took their daughter to visit him in prison. • The circuit court entered an ex parte order of protection effective until October 11 2016. On October 11, the court continued the case until October 25 and ordered that the order of protection remain in effect until then. Both the ex parte order of protection and the continuance order were served on Jones at the Wrightsville Unit on October 20. The court convened a hearing on October 25, which Jones did not attend, nor was he represented by counsel. The court was informed that Jones had been served on October 20 and that he was “scheduled to parole out like in May for some reason. ” The court proceeded to enter a five-year order of protection. The final order of protection was entered on October 25, and Jones filed a notice of appeal on November 21.

JONES V. SANCHEZ 2017 Ark. App. 461 (9 -20 -17) https: //opinions. arcourts. gov/ark/courtofappeals/en/item/300622/index. do • Respondent Inmate argued that he was entitled to 60 days to respond to the Petition since he was incarcerated per Ark. Rules of Civil Procedure. • However, proceedings filed under the Domestic Abuse Act are special proceedings, and to the extent that the statutes creating special proceedings provide for a procedure that is different from our rules of civil procedure, the rules of civil procedure do not apply. See Ark. R. Civ. P. 81(a) (2016) • Arkansas Code Annotated section 9 -15 -204(b)(1)(A) requires that service be made upon the Cite as 2017 Ark. App. 4613 respondent at least five days before the date of the hearing, which was done in this case. In addition, the circuit court has no obligation to arrange the transport of the respondent to the hearing; if Jones wished to attend the hearing, he should have requested transportation or arranged representation. • For his second point on appeal, Jones argues that he was denied a sufficient opportunity to obtain counsel because the five days prior to the hearing included a weekend, which effectively left him only three days. Normally, under Ark. R. Civ. P. 6(a), when a period of time prescribed or allowed is less than fourteen days, intermediate Saturdays, Sundays, and legal holidays are excluded in the computation. But again, because this was a special proceeding governed by its own rules, the rules of civil procedure do not apply. See Ark. R. Civ. P. 81(a). And § 9 -15 -204 provides no mechanism for setting aside intermediate Saturdays, Sundays, or legal holidays.

BARHAM V. BOWMAN 2017 Ark. App. 507, (10 -4 -17) https: //opinions. arcourts. gov/ark/courtofappeals/en/it em/300626/index. do • Parties divorced in 2012. At the time of the divorce, 3 kids were 10, 6, and 6. Benton County case. • Soon after the parties divorced, Mom remarried and moved to Washington state with the children. Dad moved to Washington in March 2015, worked for Mom’s new husband, and saw the children often. He then returned to Arkansas in October 2015 and remarried in July 2016. • On March 17, 2016, Mom filed a petition for contempt, alleging Dad was in arrears on child support and had refused to pay his share of dental, medical, and hospitalization expenses. She requested a show-cause hearing. On May 23, 2016, Dad filed a counter-petition for contempt, alleging that Mom had made derogatory remarks about Dad to the children, had interfered with his telephone visitations with the children, and had failed to provide him with school and medical information about the children. He, too, requested a show-cause hearing. • On May 26, 2016, the trial court entered a temporary order. The order provided in part that because of Mom’s move to Washington and Dad’s return to Arkansas, the previously ordered visitation schedule was no longer feasible; that Daniel would be filing a motion to modify visitation; that for the summer of 2016, Daniel was to have the children from July 11 to August 18; and that the contempt issues would be reserved until the final hearing in the matter. Daniel filed his motion to modify visitation on June 16, 2016.

BARHAM V. BOWMAN 2017 Ark. App. 507 (10 -4 -17) https: //opinions. arcourts. gov/ark/courtofappeals/en/item/ 300626/index. do • More motions get filed. Temporary Order gets amended. • Final Hearing: Stepmom testifies that she had occasions to listen to the conversations between the children and their mother and that she had made some notes of the conversations. She stated that Mom would tell M. B. , the older child, to watch out for the twins because Daniel and Francis were unfit to do so. She said that Mom never referred to Daniel as “dad” when she talked to the children, calling him Dad instead and referring to him as a “deadbeat. ” She further recalled that Mom would tell the children that she was trying to get them to never come back o Arkansas and that Mom would pray with the children over the phone, praying to Jehovah that the children would never have to come back to “this awful place and be with us. ” She said that Mom told M. B. she was trying to get Dad put in jail because of the “I-Pad incident”; that she had assured Mom she and Daniel had not pawned the I-Pad; and that they had just taken it away from M. B. because “no child in the home had any kind of electronics. ” • Stepmom recorded some conversations, but didn’t have a recording that backed up her testimony

BARHAM V. BOWMAN 2017 Ark. App. 507 (10 -4 -17) https: //opinions. arcourts. gov/ark/courtofappeals/en/it em/300626/index. do • Dad testified that Mom had labeled him “deadbeat dad” on M. B. ’s I-Pad • Mom testified in part that she had never prohibited Dad from bringing the children to Arkansas; that she had never told the children she was going to have Dad put in jail; that she had never told them they would never have to return to Arkansas; and that she did not pray to Jehovah so that they would never have to return to Arkansas. She acknowledged that she had installed her data card on M. B. ’s I-Pad when the children went to Arkansas for the summer; that when the card connected, the phrase “Daniel Deadbeat” appeared; and that, in retrospect, that was not a good idea and she has changed it. • Trial Court found Mom’s conduct as such that can only be interpreted to be disparaging of the defendant and an interference with visitation in violation of the Court’s previous orders, found her in contempt, and sentenced her to five days in the Benton County jail and ordered her to pay $1, 000. 00 in Dad’s attorneys’ fees. • Affirmed. Trial Court found stepmom and dad’s testimony more credible than Mom. • Mom’s appeal was mostly arguing why it wasn’t so bad what she did and Dad should have had to go to jail too for his contempt in not paying child support

BARHAM V. BOWMAN 2017 Ark. App. 507 (10 -4 -17) https: //opinions. arcourts. gov/ark/courtofappeals/en/i tem/300626/index. do • Only reversible error was that the Trial Court did not give her 10% interest on the arrearage of child support. • Arkansas Code Annotated section 9 -14 -233(a) provides that “[a]ll child support that becomes due and remains unpaid shall accrue interest at the rate of ten percent (10%) per annum unless the owner of the judgment or the owner’s counsel of record requests prior to the accrual of the interest that the judgment shall not accrue interest. ” • Here, the parties stipulated in part about the amount of unpaid support, but the trial court found that an additional amount was also due. The October 31, 2016 order from which Jessi appeals makes no provision for interest on the unpaid arrearage. Therefore, we remand this one issue involving ten-percent interest on the child-support arrearage to the trial court to consider the applicability of section 9 -14 -233 to the facts of this case. • Way to go Mom, you won something.

BONDS V. BONDS 2017 Ark. App. 518, (10 -4 -17) https: //opinions. arcourts. gov/ark/courtofappeals/en/it em/300660/index. do • Change of Custody Case from Pope County. REVERSED for no material change • Agreed Decree awarded sole legal custody of the children to Mom with Dad granted liberal visitation with the children. The decree provided that “[n]either parent shall have any overnight visitors with whom they are romantically involved when the children are present. ” • Dad filed EMERGENCY change of custody, permanent change of custody, contempt and other matters, along with exhibits, on April 26, 2016, alleging a number of material changes in circumstances, including: (1) the children have appeared before with bruises on their faces which they alleged were caused by Boyfriend’s children; (2) Boyfriend, who is of questionable integrity and morality, lives with appellant and the children and keeps the children while Mom works; (3) BF has argued with Dad by text regarding Dad’s decision-making when it comes to the children and has indicated, with Mom, to one of the children that it is Dad’s fault that the child does not get to participate in anything; (4) BF has posted a number of vulgar and distasteful posts on Facebook, which appellant has “liked”; (5) Mom has refused appellee extra time with the children to make up for time lost due to various activities of the children; (6) appellant has purposely withheld her work schedule from appellee with no explanation as to who is keeping the kids

BONDS V. BONDS 2017 Ark. App. 518, (10 -4 -17) https: //opinions. arcourts. gov/ark/courtofappeals/en/ite m/300660/index. do • Dad said Mom did more things that were also a change of circumstance as well as contemptuous • Ex Parte Order entered granting Dad custody. Ex Parte Order then extended based on the appearance that appellant is in a romantic relationship with BF that it appears that BF has stayed overnight with Mom while the children were in her care. • This is interesting: The court ordered that BF submit to the jurisdiction of the court and that Mom take reasonable steps and actions to avoid the appearance of BF staying overnight in the presence of the children. BF subsequently submitted to the court’s jurisdiction • Please go read the Trial Court’s order following the Final Hearing about how much the trial court hated this boyfriend in the COA opinion. It’s amazing. I cannot repeat the things that BF posted on Facebook but it involves PROFANITY + TACOS + TODDLERS

BONDS V. BONDS 2017 Ark. App. 518, (10 -4 -17) https: //opinions. arcourts. gov/ark/courtofappeal s/en/item/300660/index. do • In finding that custody should be changed to appellee, the court focused on social media posts made by appellant’s boyfriend and his use of profanity toward or in the presence of the minor children. Although we do not condone these actions by Shaw, we hold that they were insufficient to warrant the custody modification. • In fact, all the things the trial court cited had either happened before the divorce decree or had been ongoing since before the divorce. The court failed to outline exactly what the material changes of circumstance were, and there seems to be some underlying hostility that this court is not privy to. • While our case law permits us to review the record and determine whethere was sufficient evidence from which the trial court could have found a change in circumstances, after a thorough review of the record, we find no independent basis for concluding that a material change in circumstances occurred. Therefore, we reverse on this point.

KIRBY V. SEMEYN 2017 Ark. App. 556 (10 -25 -17) https: //opinions. arcourts. gov/ark/courtofappeals/en/it em/300693/index. do • At the time of divorce, Jeffrey was a student in medical school, but the parties anticipated that he would eventually graduate, begin and complete a residency, and then begin a medical practice. • With this in mind, they designed the child-custody agreement to take care of their two children, one of whom has Down syndrome and will require a lifetime of care. With respect to support and maintenance of the children, Heather and Jeffrey agreed: Support and maintenance of the children. [Jeffrey] shall pay child support in the amount of $407. 40 per month beginning the 1 st day of March, 1999 until he begins his medical residency. The same shall become due and payable on the 1 st and 15 th day of each month. The obligation of [Jeffrey] to pay child support shall continue until said children have obtained the age of eighteen (18) years, graduates from high school, dies or marries, whichever event is the first to occur. However, due to the disabilities of the parties minor child, [JPS], child support shall continue during his lifetime. Child support shall be computed annually and shall be commensurate with the Arkansas Child Support Chart

KIRBY V. SEMEYN 2017 Ark. App. 556 (10 -2517) • The custodial parent reserves the right to seek reevaluation of the child support required amounts to be paid by the non-custodial parent in the event that he were to gain a material increase in income of more than $100. 00 per month, under the material change of circumstances of A. C. A. 9 -14 -107 of 1997 for bringing such cause of action. • Under Debt and Medical Obligations: The parties also agreed to set up a special-needs trust to provide for the care of JPS • Mom argued that Dad was required to annually adjust his support that the Decree “contained an automatic escalation clause. ” Therefore, he was in arrears of $255, 000. Jeffrey denied that the child-custody agreement contained an escalation clause and argued that Heather’s request was an improper attempt to obtain a child-support modification retroactively. He also argued that the doctrine of laches prevented Heather from prevailing on her claim.

KIRBY V. SEMEYN 2017 Ark. App. 556 (10 -25 -17) • HELD: We do not find Heather’s However, it also states that the custodial parent reserves the right to seek reevaluation of the amount of child support required to be paid by the noncustodial arguments persuasive for two reasons. First, the trial court was not clearly erroneous in its finding that the child-custody agreement did not contain an automatic-escalation clause. Admittedly, the child-custody agreement does state that child support shall be computed annually and shall be commensurate with the Arkansas Child Support Chart. parent in the event there was a material increase in income of more than $100 a month under the material-change-of-circumstances provision of Arkansas Code Annotated section 9 -14 -107(Repl. 2015). Such a consideration would not be necessary if modification was automatic. Thus, it is not entirely clear from these provisions that the child-custody agreement anticipated that modifications would be automatic. • Automatic Escalation Clauses are Okay, but ……. We recognized the concept of automatic increases of child support in Brandt v. Brandt, 103 Ark. App. 66, 286 S. W. 3 d 202 (2008), but we did so only when the language in the decree clearly provided for automatic increases. We refused to allow automatic escalation when a divorce decree contains no language providing for automatic increases and no mechanism for gathering income information.

• • • COOPER V. KALKWARF – ROUND 1 2017 Ark. App. 200, No. CV-16 -897 (3 -29 -17) http: //opinions. aoc. arkansas. gov/Web. Link 8/0/doc/361549/Electronic. asp x Relocation case: Trial Court reversed for using Hollandsworth rather than Singletary/Jones Joint legal custody with Mom as primary physical custodian - Dad had 3 out of every 7 days As for relocation, the agreement stated, ‘[n]either party shall move the minor child out of the State of Arkansas without express consent in writing from the other party and/or an order from the Court authorizing the removal of the child from Arkansas. • No contempt actions or filings post divorce until Mom filed her Petition to Relocate • As in Singletary, the trial court was faced with ambiguous language: on one hand the parties are to share joint legal custody; and on the other hand, appellee is named the primary custodian. When a contract is ambiguous on its face, we resolve the ambiguity by looking at other parts of the contract and the parties’ testimony about what they intended, as well as their conduct. “Here, appellant testified that he understood joint custody to mean that he and appellee would have an equal amount of time with B. C. He stated that as it was explained to him, appellee was designated the primary physical custodian because B. C. was in her custody one more day out of a week than in appellant’s custody. He presented the court with evidence showing that he actually spent over sixty percent of the days out of the year with B. C. , although the decree called for only approximately forty-three percent. Appellee presented evidence that B. C. was with her over sixty percent of the time; however, she did not contest the amount of time appellant claimed to have spent with B. C. Additionally, both parties testified that they would spend time as a family unit during major holidays, as well as milestone occasions, after the divorce. Based on this evidence, we hold that the court improperly relied on Hollandsworth. ”

COOPER V. KALKWARF 2017 Ark. App. 200, No. CV-16 -897 (3 -29 -17) http: //opinions. aoc. arkansas. gov/Web. Link 8/0/doc/361549/Electronic. as px • AMBIGUOUS LANGUAGE: On one hand the parties are to share joint legal custody; and on the other hand, appellee is named the primary custodian. • Take away: JOINT LEGAL CUSTODY IS NOT SOLE CUSTODY • Mom also failed to prove material change and so case was not remanded for best interest determination. •

COOPER V. KALKWARF – REHEARING GRANTED BY COA (6/21/17) • Still reversed the trial court, but did so in a 5 -4 decision. https: //opinions. arcourts. gov/ark/courtofappeals/en/item/300308/index. do • GRUBER, C. J. , and GLOVER and HIXSON, JJ. , agree. VIRDEN, J. , concurs • Vaught, Klappenbach, Whiteacre, and Abramson dissented. • Not really going to talk about it much because then the Arkansas Supreme Court granted review. • Note, Judge Virden’s concurrence: I am writing to bring attention to an ambiguity in our caselaw regarding “joint custody. "Historically, custody of minor children was placed with one parent and the other parent received visitation. As the family dynamic evolved, our courts and laws struggled to keep pace. Terms like “joint legal custody” and “primary physical custody” began to appear in divorce decrees with little or no guidance to the meaning of those terms. As a result, we do not have a hard-and-fast rule to determine whether the parties had true joint custody. Our legislature has determined that it is public policy of our state to favor joint custody. See Ark. Code Ann. § 9 -13 -101(a)(1)(A)(iii).

COOPER V. KALKWARF – ARSC REVIEW 2017 Ark. 331 https: //opinions. arcourts. gov/ark/supremecourt/en/item/301752/ index. do • 4 -3 Decision – Goodson, Womack, Woods, Kemp in Majority, Kemp concurring • Baker, Hart, Wynne Dissent • Result: Modified Test on Relocation, but Hollandsworth is not abandoned. • Reversed and Remanded to Trial Court opinion • In Hollandsworth, supra, the mother who was seeking to relocate had been awarded primary custody of the children, and the father was only entitled to visitation during one half of the children’s free time on weekends, holidays, and summer vacation. Our adoption of the Hollandsworth presumption in favor of relocation by the custodial parent was based on the principle that “the custodial parent who bears the burden and responsibility for the child is entitled to seek a better life for herself or himself and the children, as enjoyed by the noncustodial parent. ” Hollandsworth, 353 Ark. at 477, 109 S. W. 3 d at 658. We further noted that, according to social-science research and literature, “what is good for the custodial parent is good for the child. ” Id. at 480, 109 S. W. 3 d at 653 (quoting Baures v. Lewis, 770 A. 2 d 214 (N. J. 2001)). • As we then discussed in Singletary, supra, however, the rationale behind Hollandsworth, which was to preserve and protect the stability of the relationship between the child and the custodial parent with whom the child spent the majority of his time while balancing the custodial parent’s right to relocate, simply does not apply to joint-custody situations. Singletary, 2013 Ark. 506, at 8, 431 S. W. 3 d at 240.

COOPER V. KALKWARF – ARSC REVIEW 2017 Ark. 331 • Since Hollandsworth was decided in 2003, the typical postdivorce custodial arrangement has evolved from a traditional custody situation, where one parent receives sole or primary custody and the noncustodial parent receives weekend visitation, to a shared-custody situation. This evolution is reflected in the 2013 amendment to our custody statute, Ark. Code Ann. § 9 -13 -101(a)(1)(A)(iii), which provides that awards of joint custody are now favored in Arkansas. See Act of April 11, 2013, No. 1156, §§ 1– 3, 2013 Ark. Acts 4706– 07. • However, shared-custody or co-parenting arrangements, such as the one here, have also made it difficult for circuit courts to determine which analysis to apply to a relocation request. This difficulty is evidenced by the circuit court’s frustration in this case. As the circuit court here noted, it is often a difference of only one or two small details that persuades a court to utilize either the Hollandsworth or the Singletary analysis, and thus, these small factual distinctions can ultimately change the outcome of the court’s decision. Other state courts have grappled with this issue as well, and the recent trend has been to impose a best-interests test in all cases when considering a relocation application, regardless of whether that parent is designated as the primary custodian or whether the parties equally share custody. See Bisbing v. Bisbing, 166 A. 3 d 1155 (N. J. 2017) (noting that the majority of states, either by statute or by case law, now impose a best-interests test rather than a preference or presumption in favor of a primary custodian).

COOPER V. KALKWARF – ARSC REVIEW 2017 Ark. 331 • Despite this trend, we choose not to eliminate entirely the presumption in favor of a sole or primary custodian that was announced in Hollandsworth, supra, because the rationale supporting that decision remains persuasive in certain situations, such as in a traditional custody arrangement. Accordingly, we specifically reject the one-size-fits-all suggestion made by the circuit court in paragraph 56 of its order cited above. • We instead clarify that the Hollandsworth presumption should be applied only when the parent seeking to relocate is not just labeled the “primary” custodian in the divorce decree but also spends significantly more time with the child than the other parent. This standard preserves the rights of a primary custodian when he or she has shouldered the vast majority of the responsibility of caring for and making decisions on behalf of the child, and it also more accurately reflects the best interest of the child, which is the polestar consideration in any custody decision. Stehl v. Zimmerebner, 375 Ark. 446, 291 S. W. 3 d 573 (2009).

COOPER V. KALKWARF • Thus, we do not attempt to oversimplify the issue of relocation by imposing an arbitrary percentage of time that a parent must spend with the child for the Singletary analysis to apply. Rather, by this opinion, we seek to recognize the realities of modern parenting and to emphasize that a joint-custody arrangement does not necessarily involve a precise “ 50/50” division of time. We further note that parental influence and commitment, involvement in the child’s daily activities, and responsibility for making decisions on behalf of the child are important factors in the circuit court’s consideration of the relocation issue. As the Bisbing court noted, recent social-science research has indicated that a close relationship with the parent of alternate residence is of critical importance to a child’s wellbeing following a divorce. Bisbing, 166 A. 3 d at 1166. By limiting the Hollandsworth presumption to those situations where the child spends significantly less time with the alternate parent, the disruptive impact that a relocation would have on that relationship is minimized. • Here, both parties shared the responsibility for making decisions on B. C. ’s behalf, and each parent has a significant and meaningful relationship with the child. Under the revised test discussed above, we conclude that the analysis set forth in Singletary, supra, governs appellee’s relocation petition rather than Hollandsworth, supra. Accordingly, we reverse the circuit court’s decision and remand for the court to apply this analysis to the facts in this case.

Sills v. Ark. Dep't of Human Servs 2018 Ark. App. 9 (1 -10 -2018) • Termination of Parental Rights out of Craighead County • Points on Appeal: (1) insufficient evidence to support the grounds for termination and the circuit court's best-interest finding (2) Due Process Violations from DHS • At the time kid was born, child tested positive for THC. Custody was removed from Mom. Dad was in jail at the time of his birth. • Dad shows up at the probable cause hearing. He’s unrepresented. He is adjudicated and declared the father of the kid. Court noted that he was incarcerated on a 15 month sentence, but still ordered standard services. • Adjudication Hearing – Dad appears, but still unrepresented. The court entered an adjudication order finding that Sills had been served by certified mail. Kid found to be dependent-neglected due to parental unfitness and the drug use of the mother and that Dad HAD NOT contributed to the dependency-neglect of the child. However, the court further found Sills was not a fit parent for purposes of custody and visitation. The court continued its previous orders and specifically ordered Sills to resolve his criminal issues and to complete the case plan and court orders before placement or visitation would be provided.

Sills v. Ark. Dep't of Human Servs 2018 Ark. App. 9 (1 -10 -2018) • 2 review hearings. Dad not present and not represented by counsel. After each hearing, the court [*3] found that he had not complied with the case plan. The court also held a permanency-planning hearing (PPH). Once again Sills was not present or represented by counsel. After the hearing, the court changed the goal of the case to adoption, and an attorney was then appointed to represent Sills. Once again, the court found that Sills had not participated in the case plan or complied with its orders. • Petition to Terminate Filed: DHS alleged that Dad had abandoned B. S. (Ark. Code Ann. § 9 -27341(b)(3)(B)(iv) (Supp. 2017)); that there were subsequent other factors (Ark. Code Ann. § 9 -27341(b)(3)(B)(vii)(a)); and that Sills was sentenced in a criminal proceeding for a period of time that would constitute a substantial period of the child's life (Ark. Code Ann. § 9 -27 -341(b)(3)(B)(viii)). As for the last statutory ground, DHS alleged that Sills had been incarcerated in the Arkansas Department of Correction since February 18, 2016, following the revocation of probation related to a conviction for robbery. DHS further stated that he was not eligible for release until October 2017 at the earliest. • The court conducted a hearing on the petition to terminate Sills's parental rights on May 12, 2017. Sills was present for the first time since adjudication and this time was represented by counsel. When DHS attempted to introduce the prior orders of the court as exhibits, Sills's counsel objected to the introduction of the two review-hearing orders and the PPH order on the following basis: Sills had not been transported to court or allowed to participate by telephone; Sills had not been represented by counsel; and Sills was never sent a copy of the orders entered thereafter. The court admitted the evidence over counsel's objection.

Sills v. Ark. Dep't of Human Servs 2018 Ark. App. 9 (1 -10 -2018) • Dad was the first witness called by DHS. He testified that he had been incarcerated on the day B. S. was born and was not responsible for the child's removal. He continued to be incarcerated in the Arkansas Department of Correction on a probation violation (failure to pay fines), he had been incarcerated for 17 months, but he was set to be released soon. He testified that his expected release date was August 1 but that he fully anticipated to be released mid-June. He stated that he is on parole until January 2021. He testified that once he is released from custody, he intends to live with his mother and work at Anchor Packaging. • Basically Dad attended one hearing telephonically and one in person; wasn’t appointed an attorney until one year into the case; DHS knew that he was incarcerated but failed to communicate with him and that he did not know who to contact at DHS; never received a copy of the case plan and only received a copy of the petition from Cox's attorney. Once he received the petition to terminate, he wrote letters advising DHS that he wanted to come to court and participate in the case. He also indicated that his mother and grandmother were interested in being a placement for the child but that DHS would not give them any information when they called. In fact, he stated that no one from DHS had contacted his family to see if they might be interested [as a possible placement for B. S. • As for services, he stated that he had completed anger- and stress-management classes and had completed a class on communication skills and thinking errors. He stated that DHS never sent him a copy of "The Clock is Ticking" video and denied having the ability to watch it on You. Tube. He admitted he had never seen the child because of his incarceration, but he insisted that he had not abandoned the child. He complained that DHS never made arrangements to have the child brought to him and that he never wrote to the child because the child is too young to read.

Sills v. Ark. Dep't of Human Servs 2018 Ark. App. 9 (1 -10 -2018) • DHS ADMISSIONS: • Caseworker had not had any contact with Dad and had never received any telephone calls or emails from him. Caseworker did acknowledge receiving a letter from Dad dated March 16, 2017, stating he did not want his parental rights terminated. Caseworker said that she knew Sills was incarcerated, that no services had been provided to him by DHS, and that no attempt had been made to transport the child to visit him. She also admitted that she never sent him a copy of the case plan. She testified that she had no contact with any of Dad's family members regarding placement of the child. In fact, she admitted there was nothing in the CHRIS database about him and that he was not even listed as a client. She further admitted that, based on all this, she was unsure if DHS's petition should be granted. • Despite this uncertainty, Caseworker stated that the case was approximately 15 months old, and that she believed the child had a right to permanency after that amount of time. She opined that the child could not be safely placed in Dad’s home anytime soon, even upon his release. She stated that once he was released, he would have to complete all the standard services and that it could take as long as twelve months or more for him to comply. She testified that B. S. is an adoptable child and that there is nothing in his makeup that would hinder any sort of an adoption. In fact, the foster family had indicated an interest in adopting the child.

Sills v. Ark. Dep't of Human Servs 2018 Ark. App. 9 (1 -10 -2018) • HELD: A court may terminate parental rights if the parent is sentenced to a criminal proceeding for a period of time that would constitute a substantial period of the juvenile's life. It is the prison sentence itself, not the potential release date, that determines whether this statutory ground is satisfied. Here, Sills was sentenced to at least five years' imprisonment (based on his sentence of revocation and his parole end date). We find this is a substantial period of time for a child less than two years of age. • Under the incarceration ground, DHS does not have to provide services to a parent while he or she is in prison as a prerequisite to termination or to contemplate what it will do when the parent is released. Moses, supra. As a result, whether DHS provided services to Dad is not relevant to proving the statutory ground for termination. • HELD: To terminate parental rights, a circuit court must find by clear and convincing evidence that doing so is in the best interest of the juvenile, while considering (1) the likelihood that the juvenile will be adopted if the termination petition is granted and (2) the potential harm, specifically addressing the effect on the health and safety of the child, caused by returning the child to the custody of the parent. • The potential-harm inquiry must be viewed in a forward-looking manner and in broad terms; there is no requirement that actual harm would result or that the circuit court identify the potential harm. • HELD: the court had evidence that B. S. had already been in DHS's custody his entire life and would be required to linger in DHS custody until Dad is released from jail or perhaps longer to allow Sills the opportunity to prove that he has a stable home and stable employment. We have held that "this kind of wait-and-see is the definition of the instability that the termination statute is intended to protect children from.

Sills v. Ark. Dep't of Human Servs 2018 Ark. App. 9 (1 -10 -2018) • Due Process Argument gave the Court pause because DHS literally did almost nothing to engage Dad in reunification process. • We have long held that few consequences of judicial action are so grave as the severance of natural family ties • Nonetheless, we take this opportunity to remind DHS and the ad litem of the magnitude and importance of the rights involved in termination cases. DHS has the duty to ensure that both parents are provided the resources necessary to promote positive, nurturing parent-child relationships and that they are given ample opportunity to reunite with their children before the natural, familial bonds are severed and a forced dissolution of their parental rights occurs. • Nonetheless, argument did not prevail because remember the Juvenile Code is super technical for lots of technical reasons you can read about why it was okay. • TAKEAWAY: DON’T BE IN JAIL WHEN YOUR KID IS BORN.

Glisson v. Glisson 2018 Ark. App. 21 (1/24/18) • Following trial, trial court ordered “that the parents share joint custody of their minor children and that Kellie has primary custody. ” • Time sharing: Steven every other Thursday through Monday. Steven is also allotted an additional overnight visit on the opposite Tuesday beginning after school and returning the children to school on Wednesday morning. Holidays and summer vacation are split evenly between the parents and rotated yearly. • Point on Appeal: Whether the circuit court erred in designating the custody arrangement in the decree as "joint custody" because "the parties do not have an 'approximate or reasonable equal division of time with the child' and therefore this is not joint custody. • HELD: 6 out of 14 days is within the range of "approximate and reasonable equal division of time with the child" as set forth in Ark. Code Ann. § 9 -13 -101(a)(1)(A) • Note: Mom did not argue on appeal that “parental conduct supports her argument that true joint custody does not exist; thus, we are limited to reviewing only whether the circuit court's division of time is approximately equal. ”

Glisson v. Glisson 2018 Ark. App. 21 (1/24/18) • Recently, in Cooper v. Kalkwarf, 2017 Ark. 331, at 15, 532 S. W. 3 d 58, 67, our supreme court emphasized that the legislature intended that joint custody may exist when the division of time is only approximately equal, holding that "the joint-custody arrangement does not necessarily involve a precise '50/50' division of time. " • In Cooper, as in the instant case, the decree set forth that the parties shared joint custody with primary custody in the mother, and our supreme court held that this language was ambiguous on its face. • The Arkansas Supreme Court held that the decree awarded the father nearly equal time with the child, that "it is unclear from the language in the decree whether the parties had 'joint custody, '" and that "the circuit court was correct in reviewing the parties' subsequent statements and conduct. " Child Support Order reversed because Court ordered child support of $349. 00 per month but there was no finding or determination of the payor’s income.

Lazaravage v. Ark. Dep't of Human Servs. & Minor Child, 2018 Ark. App. 29 (1/24/2018) HELD: A mother's claim that the trial court committed reversible error by failing to require that the Department of Human Services notify the Indian tribe as required by federal law was not considered on appeal where she had failed to raise the issue below; [2]-Even if the issue of notice to the Indian tribe had been properly raised, it lacked merit where the mother never provided any information about the child's potential Indian heritage; [3]-The trial court did not err in terminating the mother's parental rights where it determined that she continued to exhibit mentalhealth concerns and that she had failed to demonstrate the ability to safely parent her child.

Otis v. Ark. Dep't of Human Servs. & Minor Child, 2018 Ark. App. 28 (1/24/18) • At least one statutory ground must exist, in addition to a finding that it is in the child's best interest to terminate parental rights; those must be proved by clear and convincing evidence. Ark. Code Ann. § 9 -27 -341 (2015). Clear and convincing evidence is that degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established. • No challenge on statutory ground only best interest finding. • The best-interest finding must be based on a consideration of two factors: (1) the likelihood that if parental rights are terminated, the juvenile will be adopted and (2) the potential harm caused by returning the child to the custody of the parent. Ark. Code Ann. § 9 -27 -341(b)(3)(A). Adoptability is not an essential element but is rather a factor that the trial court must consider. HELD: • Termination of the mother's parental rights was in the child's best interests under Ark. Code Ann. § 9 -27 -341(b)(3)(A) because the trial court found aggravated circumstances such that there was little likelihood that further services would result in the mother successfully reunifying with the child as the mother was mentally ill and a drug user; and the lack of exploration of placing the child with a relative before termination did not render the trial court's overall best-interest finding clearly erroneous as the child was not being cared for by a relative at the time of the termination hearing; the cousin testified that the mother did not, at least initially, want her to be considered a placement or to be permitted visitation; and the mother's attorney never argued that termination was not proper because there was a potential relative placement for the child. • Theme in all Juvenile Cases this year: preserve everything or nothing is preserved.

Wilhelm v. Wilhelm, 2018 Ark. App. 47 (1 -24 -18) • Mom awarded temporary custody with Dad having every Wed and Thursday and the parties alternating weekends…so a 2 -2 -3 • Dad was awarded a right of first refusal for if Mom had to travel for work or could not get home by 6: 00 p. m. for any reason • Final hearing and 18 witnesses later…… • Trial Court from the bench: The Legislature has seen fit to enact a statute that says that joint custody is favored in Arkansas. And I said, the statute was enacted by the Legislature. I've never seen an appellate court case that said joint custody is favored by the courts in Arkansas. But that having been done, I do feel an obligation to consider it in every case. And I don't—I've never ordered it when the parties weren't agreeable to it. So I did ask the parties to consider whether or not they would be agreeable to joint custody, and the answer was no. • Now, if I had not thought that you were both good parents, I would not have asked you to consider or if you would consider joint custody. I think you're both fit to be parents. But I have to make a decision here. It is clear to me that the plan for the two of you for some time was [appellant] was going to concentrate on that job whatever it meant

Wilhelm v. Wilhelm, 2018 Ark. App. 47 (1 -24 -18) • Remember those 18 witnesses…. it was the poor neighbors – they saw Dad more with the kids • From the trial court: But the neighbors in the neighborhood testified that it was Dad that they saw bring the kids home. It was Dad they saw bringing the groceries home. It was Dad that was out in the yard playing with the kids until Mom came home. Mom was seen from time to time in the yard. But the testimony of the neighbors was that Dad was the one who took care of the kids and that it was often that Mom was not off in time to take the kids home and be with them immediately after school. And that's just the way they worked it, and everybody seemed to be happy with it until the parties separated, and then the normal jockeying started of the parties started to improve their positions with regard to their chances of getting custody. Now, the testimony, and Dad agreed with this, that lately Mom had not had to travel as much, that she has had more time. He does not deny that. But his job has not changed a bit. I know that he is going—he hasn't changed his job, and he's been available and that hasn't changed. And I don't know what your job is going to bring in the future, but you're going to have to be available to do whatever you have to do in your job.

Wilhelm v. Wilhelm, 2018 Ark. App. 47 (1 -24 -18) • Dad awarded custody, Mom got visitation, Mom ordered to pay child support with percentage of bonuses awarded, and Mom ordered to pay Dad 18, 000 in attorneys fees. OUCH! • Mom appealed arguing in part that (1) the circuit court's findings do not support awarding primary custody to Dad; (2) a complete review of the evidence and the record on de novo review favors awarding primary custody to Mom; and (3) the circuit court erred by refusing to consider joint custody. • Lost points 1 & 2 because her appeal was basically asking the Court of Appeals to “reweigh the evidence” which is cannot do as credibility determinations are left to the trial court. • On Point 3: “Although our legislature has amended Arkansas Code Annotated section 9 -13 -101 to state tha an award of joint custody is favored in Arkansas, joint custody is by no means mandatory. Furthermore, a failure by the circuit court to award joint custody does not mean that the circuit court failed to consider awarding the same. The circuit court expressly stated from the bench that both parties were good parents, but that it would not award joint custody where the parties were not agreeable to a joint-custody arrangement. It went on to state that both parties had declined to entertain joint custody when asked by the circuit court. Accordingly, the circuit court clearly considered awarding joint custody, but appellant's own unwillingness to consider the same was a contributing factor to the circuit court's decision not to award join custody. A person cannot complain of an alleged erroneous action of the circuit court if she induced such action.

Benson v. Ark. Dep't of Human Servs. , 2018 Ark. App. 65 (1/31/2018) • Termination of parental rights is a two-step process requiring a determination that the parent is unfit and that termination is in the best interest of the children. The first step requires proof of one or more statutory grounds for termination; the second step, the bestinterest analysis, includes consideration of the likelihood the juveniles will be adopted and of the potential harm caused by returning custody of the children to the parent. Each step requires proof by clear and convincing evidence, which is the degree of proof that will produce in the finder of fact a firm conviction regarding the allegation sought to be established. • HELD: The evidence was sufficient to support the circuit court's finding that termination of a mother's parental rights was in the child's best interest where the mother was incarcerated, her completion of programs in prison carried little weight because she was not free to make many choices in prison, she provided no real details for her life after her release from prison, and her failure to improve her parenting skills before her parental rights to another child were terminated was a good indicator of her future conduct; • Neither Ark. Code Ann. §§ 9 -27 -338 nor 9 -27 -359 required that the mother be given 15 months to improve her situation and parenting skills.

Blasingame v. Ark. Dep't of Human Servs. , 2018 Ark. App. 71 (1/31/2018) • In a termination of parental rights case under Ark. Code Ann. § 9 -27 -341 (Supp. 2017), the appellate court found no reversible error in the circuit court's finding that a father's continued pattern of violence, arrests, and instability constituted a failure to remedy those conditions. • The appellate court declined to reweigh the evidence supporting each of the circuit court's findings • The circuit court did not ignore evidence of the father's recent progress • Sufficient evidence supported at least one statutory ground for termination of the father's parental rights.

Blasingame v. Ark. Dep't of Human Servs. , 2018 Ark. App. 71 (1/31/2018) • One interesting Point…. to Remember • Blasingame's final argument on appeal is that the circuit court violated Arkansas Code Annotated section 927 -341(e) by failing to file the written termination order within thirty days of the hearing. Instead, the court waited 127 days before filing the order. DHS contends that this argument [**9] was not raised below and is therefore not preserved for appeal. Blasingame responds that he never had the opportunity to raise this point before the filing of the termination order and relies on the rule that where a party has no opportunity to object to a circuit court's ruling, it is not necessary to raise the issue below in order to preserve it for appeal. Our caselaw is clear that a posttrial motion is unnecessary to preserve an issue for appeal in a dependencyneglect case. Therefore, because Blasingame's first [*8] opportunity to raise the issue would have been in a posttrial motion, his argument is not barred from appellate review due to lack of preservation. • However, Blasingame's challenge to the timeliness of the order fails on its merits. He has acknowledged that our precedents unequivocally hold that compliance with this part of the statute is little more than a "best practice, " the violation of which does not warrant reversal or any other sanction. There are numerous cases holding that failure to comply with the statute's time requirement is not jurisdictional and does not warrant reversal. While Blasingame argues that these cases were wrongly decided and should be reversed, we need not consider this argument because the Arkansas Supreme Court decided Wade v. Arkansas Department of Human Services and the Arkansas Court of Appeals is not at liberty to overturn a decision of the Arkansas Supreme Court.

Ewasiuk v. Ark. Dep't of Human Servs. , 2018 Ark. App. 59 (1/31/18) • LENGTHY RECITATION OF THE FACTS IN THE OPINION…. • HELD: • Evidence was sufficient to terminate the father's parental rights under the subsequent other factors ground in Ark. Code Ann. § 9 -27 -341(b)(3)(B)(vii)(a): 1. After completing outpatient treatment, he tested positive for illegal drugs 2. He continued to have contact with his wife, whose parental rights had been terminated 3. He lacked the urgency to become a parent capable of providing a safe environment for his children's return, when 21 months into the case, he had allowed his employment situation to deteriorate to unstable job hopping 4. Failed to remedy the subsequent factors occurred despite appropriate family services being offered.

Montez v. Montez, 2018 Ark. App. 55 (1/31/2018) “MONTEZ II” MONTEZ I…FOR THOSE WHO DON’T REMEMBER FROM LAST YEAR’S PRESENTATION Child Custody and Visitation: The parties agree that they are both fit and proper parents. The parties agree that they shall enjoy joint custody of the two minor children, [M. M. and J. M. , ] and shall endeavor to have equal time with the minor children as delineated herein. Went Friday to Friday , No Child Support, Mom filed motion for child support saying material change because Dad stopped helping with the kids financially when the kids were in her care more. Dad filed Motion to Change Custody. Alleges Mom’s new husband is a drunk, it’s a volatile situation, New husband had plead guilty to 4 th offense DWI (5 years jail), one of the kids was a truant and using drugs in moms care, and other bad stuff Mom then files a Motion to Change Custody saying that Dad was alienating the kids from her, that he had fought her new husband, and other bad stuff

MONTEZ I • Lots of testimony about the bad stuff back and forth; trial court denies both motion for change of custody for failure to show material change and continues the joint custody • When the parties have fallen into such discord that they are unable to cooperate in sharing physical care of their children, this constitutes a material change in circumstances affecting the children’s best interest. We have reversed the continuation of a joint-custody arrangement on a motion to modify custody when “there was a mountain of evidence. . . demonstrating that the parties could no longer cooperate in reaching shared decisions in matters affecting their children. • Material Change Here: • both Daniel and Consuela testified that they cannot communicate with each other and that the joint -custody arrangement is not working. • Consuela described the circumstances as “chaotic, ” and Daniel stated that he cannot have a “civil conversation” with Consuela. • Impact on the Kids • J. M. ’s demeanor has changed and significant disciplinary issues and MM was smoking weed and getting in trouble too • Plus the testimony showed that since the divorce, M. M. had significant disciplinary issues. Moreover, there was evidence that Consuela and her new husband had a volatile relationship that had also negatively affected the children.

MONTEZ II • So Montez I reversed on failing to find a material change, Montez I said there had been a material change… • Why are we back? Because the trial court after remand still awarded joint custody – what the parties had before…. • On remand, the circuit court held a hearing on May 12, 2017. The court did not consider any new evidence or testimony, and the parties did not make arguments. On June 6, 2017, the court entered a written order finding that a material change in circumstances had occurred following the entry of the divorce decree but nonetheless found it was not in the best interest of the children to change custody. The court found that the children benefited from extended time with both parents and ordered the joint-custody arrangement to continue. The court ordered the parties to communicate by telephone daily. • But Wait, I thought in order to prove a change of custody you have to show first a material change and then additionally that it is in the best interests of the children. So what did the trial court do wrong? See next slide …… • Long discussion on the history of the mandate that you can go read yourself.

MONTEZ II • Here, we hold that the circuit court's decision on remand is contrary to our opinion in Montez I. In Montez I, we held that the circuit court clearly erred in finding that Daniel had failed to establish a change of circumstances warranting a modification of custody. We specifically stated, "When the parties have fallen into such discord that they are unable to cooperate in sharing physical care of their children, this constitutes a material change in circumstances affecting the children's best interest. " • We cited our caselaw that it is a reversible error to order continuation of a joint-custody arrangement when there is evidence that demonstrates the parents can no longer cooperate in reaching decisions in matters affecting their children. We then discussed the overwhelming evidence that Daniel and Consuela could not communicate with each other, as well as the evidence of the effect of that turmoil on the children. We "reversed the circuit court's award of joint custody“ and remanded the case to the circuit court "for an award of custody consistent with this opinion. " On remand, the court acknowledged our holding that Daniel had established a material change in circumstances warranting modification of custody, but the court nonetheless found that it was in the best interest of the children to continue joint custody. That decision was contrary to our opinion in Montez I. Accordingly, we hold that the circuit court failed to execute our mandate. We again reverse and remand to the circuit court for termination of the joint-custody arrangement. On remand, we direct the circuit court to make a sole-custody determination with a corresponding child-support determination. Because of this holding, we do not reach the other issues on appeal. This statement is Lauren’s only – so why not just say that the first time?

Morris v. Clark, 2018 Ark. App. 73 (1/31/2018) • Termination of Guardianship Case • The cases interpreting the termination-of-guardianship statute have been in, and apparently continue to be in, a state of flux and ongoing clarifications. The pertinent line of supreme court cases began with Graham v. Matheny, 2009 Ark. 481, 346 S. W. 3 d 273, and was followed by In re Guardianship of S. H. (1), 2012 Ark. 245, 409 S. W. 3 d 307, and In re Guardianship of S. H. (2), 2015 Ark. 75, 455 S. W. 3 d 313. Finally, in 2015, in what appeared to be a significant departure from the historical interpretation of the statute, the supreme court delivered In Re Guardianship of W. L. , 2015 Ark. 289, 467 S. W. 3 d 129. • 2015 W. L. Holding: We have already said that a guardianship is no longer necessary once a fit parent revokes an earlier-given consent. This is because a fit parent is presumed to be acting in the child's best interest. By petitioning to terminate the guardianship and revoking consent, the fit parent, who has the child's best interest at heart, informs the court that the guardianship is no longer necessary. That is sufficient to meet the statutory requirement where the court "may" terminate the guardianship. In other words, a guardianship is no longer necessary—per the statute—when a fit parent revokes consent. The fit parent does not have to prove anything else. The statute does contain another method for the guardianship to be terminated, that is, by showing it is no longer in the ward's best interest. However, given that the legislature has created a disjunctive test, the parent can move to terminate under either prong. • This ruling is consistent with the statutory text and a fit parent's fundamental liberty interest in the care, control, and custody of his or her child. Furthermore, the burden of proof does not and cannot shift to the guardians when a guardianship is terminated based on a fit parent's revocation of consent. Simply put, a fit parent's decision regarding his or her children is conclusive.

Morris v. Clark, 2018 Ark. App. 73 (1/31/2018) • 2016 Donley Supreme Court: In discussing the fit-parent presumption, the Donley supreme court wrote: Based on our holding in In re W. L. , here, . . . [the mother] was a fit parent, revoked her consent to the guardianship, and the burden shifted to [the guardian] to demonstrate that the guardianship was still necessary or in [the child's] best interest. Stated differently, when [the mother] revoked her consent, the statute was triggered, the presumption applied and the burden shifted to [the guardian]. • Per the Court of Appeals…. . “While the Donley opinion's language with respect to the "burden shifting" to the guardian may appear to conflict with In re W. L. , the above-cited "burden-shifting" language in Donley is the latest pronouncement on the guardianshiptermination interpretation issued by our supreme court and, hence, is the controlling precedent. • Got it?

Morris v. Clark, 2018 Ark. App. 73 (1/31/2018) • Okay, so Mom relied on In re W. L. that where a fit parent revokes her consent to the guardianship, a fit parent's decision regarding his or her children is conclusive and, therefore, the guardianship is no longer necessary. “Ergo, according to [Mom], because the statutory language is disjunctive, the guardianship should be terminated. • HELD: While that argument may have been dispositive under In re W. L. , that argument is no longer dispositive, and our analysis must be guided by our supreme court's later holding in Donley, as this reflects its most recent interpretation of the guardianship-termination statute and how it must be applied. • Per Donley, when Mom, a fit parent, petitioned to terminate the guardianship, Alicia was entitled to the fit-parent presumption and the burden then shifted to Guardian to demonstrate that the guardianship was still necessary or that the guardianship was in J. M. 's best interest. • Here Trial Court gave Mom the right presumption, but found that termination of guardianship was not in best interest.

Morris v. Clark, 2018 Ark. App. 73 (1/31/2018) • Items that supported denial of termination of guardianship under best interest: • J. M. had very little contact with his natural mother from the time he was three months old • J. M. was well adjusted after being in Guardian’s care, and that J. M. wished to remain Guardian's custody. • “In so doing, the trial court effectively applied the burden-shifting standard announced by our supreme court in Donley, and found that the guardian had met her burden of proving that continuing the guardianship was still in J. M. 's best interest. We conclude on this record that the trial court did not clearly err in finding that Guardian met her burden of showing that the guardianship was in J. M. 's best interest, and therefore we affirm the trial court's order denying Alicia's petition. • Okay so REMEMBER: If a consent is later revoked by a fit parent, guardian can still keep custody if shows guardianship is in best interest. Guardian’s burden. • Side Note: Guardian moved to Memphis with kid, but Mom never raised that below. "[a] guardianship may be terminated by court order after such notice as the court may require [i]f the ward becomes a nonresident of this state. "

Stovall v. Preston, 2018 Ark. App. 64 (1/31/18) • ISSUE: Whether the probate court erred and acted contrary to law and public policy when it extended comity in a probate proceeding to a foreign marriage celebrated in Louisiana where the evidence was undisputed that the parties did not actually reside in Louisiana, at the time they celebrated the marriage, and where there was no evidence that the parties consummated the marriage in Louisiana, following the marriage ceremony, as required for extending comity to foreign marriages, under Ark. Code Ann. § 9 -11 -107(a). " • Faye and Rudy married for 27 years. They were married in 1994 on a boat, officiated by a boat captain, and had a LA marriage license. (Sounds pretty awesome) and it was undisputed was a valid marriage in Louisiana. • Son from prior marriage was appointed guardian of Faye. Rudy didn’t object at the time and didn’t appeal the order appointing Son as guardian. • Later, Rudy the Husband filed a motion to terminate guardianship, or alternatively to vacate and modify the order appointing a guardian and a motion for accounting, pled the waiver was obtained through fraud, and he should have had the opportunity to address the court about the best interests of his wife; that Son had not used the guardianship to promote and protect Faye and her property, and Rudy sought an inventory and an independent medical evaluation. HELD: The clear focus of section 9 -11 -107 is to recognize as valid all marriages contracted outside of Arkansas that would be valid by the laws of the state or country in which the marriages were consummated. Here, as previously mentioned, it is undisputed the marriage between Rudy and Faye is valid under Louisiana law. To read the language of section 9 -11 -107 relied upon by Son to invalidate their marriage would fly in the face of the statute's stated purpose and run counter to the rationale employed in De. Potty and the conflict-of-laws cases.

Toney v. Burgess, 2018 Ark. App. 54 (1/31/18) • Decree for Divorce incorporated but not merged the Property Settlement Agreement (Agreement) on July 29, 2016. In its order, the circuit court reserved general jurisdiction over the case to ascertain and enforce all rights and obligations of the parties under the decree. The Agreement provided that "Wife agrees to pay the 2014 personal property tax debt. " • On September 8, 2016, Burgess filed a "Motion to Correct Scrivener's Error, " and the circuit court held a hearing on the motion on November 22, 2016. • At the hearing, Burgess testified that the Agreement should have read "Wife agrees to pay the 2014 income tax debt" instead of "Wife agrees to pay the 2014 personal property tax debt. " The 2014 personal property taxes were $225. 36, and the 2014 income taxes were $12, 500. Burgess testified that he did not discover the error in the Agreement until Toney mentioned to him on the phone that she did not have to pay the income taxes according to the paperwork and laughed at him. Toney testified that she did not laugh at Burgess and that she believed the settlement properly reflected the agreement of the parties that she would pay the personal property taxes. Burgess's attorney, George Ellis, stated to the circuit court that it was an overlooked error on his part and that the agreement was supposed to read "income tax debt" rather than "personal property tax debt. " The circuit court stated that, based on everything it had seen and heard, the parties intended to settle the income tax debt. The circuit court found a mutual mistake and reformed the decree to reflect this correction. The circuit court signed its order modifying the decree on November 29, 2016.

Toney v. Burgess, 2018 Ark. App. 54 (1/31/18) • First argument – It wasn’t a clerical error and the Court couldn’t fix it after 90 days under Rule 60. WRONG! • Held: Although this was not a clerical error contemplated by Rule 60(b), the circuit court had jurisdiction to modify the decree more than ninety days after its entry. The circuit court reserved jurisdiction over the decree and therefore did not violate Rule 60 by exercising jurisdiction. As we stated in Jones, the circuit court may modify the decree with respect to issues that it considered. Since the court specifically considered the issue of payment of income tax debt, the court retained jurisdiction to modify that issue. • Second Argument: No Parol Evidence should have been considered. WRONG • HELD: The parol-evidence rule bars introduction of evidence that adds or varies the parties' written contract that is unambiguous in the absence of fraud, duress, or mutual mistake and this was a mutual mistake.

Toney v. Burgess, 2018 Ark. App. 54 (1/31/18) • Last Point on Appeal – Reformation is not warranted here because no mutual mistake – WRONG! • Reformation is an equitable remedy that is available when the parties have reached a complete agreement but, through mutual mistake, the terms of their agreement are not correctly reflected in the written instrument purporting to evidence the agreement. A mutual mistake is one that is reciprocal and common to both parties, each alike laboring under the same misconception in respect to the terms of the written instrument. A mutual mistake must be shown by clear and decisive evidence that, at the time the agreement was reduced to writing, both parties intended their written agreement to say one thing and, by mistake, it expressed something different. Whether a mutual mistake warranting reformation occurred is a question of fact. Even in reformation cases, where the burden of proof is by clear and convincing evidence, we defer to the superior position of the trial judge to evaluate the evidence, and the proof need not be undisputed. If you were curious the difference between 2014 personal property taxes and 2014 income tax debt was $250 v. $12, 500.

Turner v. Ark. Dep't of Human Servs. , 2018 Ark. App. 52 (1/31/18) • HELD: The circuit court properly terminated a mother's parental rights because, while was the order was unquestionably untimely under Ark. Code Ann. § 9 -27 -327 and the mother and her attorney were present at the adjudication hearing, yet failed to appeal from the adjudication order, which, pursuant to Ark. R. App. P. Civ. 2, became a final, appealable order, the circuit court's violation did not cause it to lose jurisdiction when the General Assembly did not provide a sanction for the violation, there was no evidence that such a result was intended, and it was in the child's best interests that the mother's parental rights be terminated. Unquestionably, the circuit court failed to hold a timely adjudication hearing and then compounded its failure by failing to enter a timely adjudication order after it had held the hearing. • Although the circuit court erred, we hold that appellant failed to timely present this issue. She and her attorney were present at the adjudication hearing, yet appellant failed to appeal from the adjudication order. Pursuant to Ark. R. App. P. —Civ. 2, the adjudication order was a final, appealable order. That failure precludes our review of the issue. We also note that appellant failed to raise this issue at the termination hearing. Indeed, appellant never raised this issue to the circuit court. • Termination cases are unique civil cases because time is viewed from the juvenile's perspective, and the best interests of the children take precedence at every stage of the proceedings. To reverse this case would be contrary to JH's best interest. We hold that the circuit court's violation of the time limits set forth in Ark. Code Ann. § 9 -27 -327 did not deprive it of jurisdiction over the case.

Williams v. Williams, 2018 Ark. App. 79 (1/31/18) Alimony case…. • The parties met each other through an online dating site called TAG in January or February 2009. At that time, appellant had just completed a deployment in Iraq and was stationed in Georgia as an IT security specialist and warrant officer for the United States Army. Appellee had a business cleaning residential and commercial properties which she had owned since 1993. Appellant was subsequently transferred to Fort Bliss in El Paso, Texas, and appellee joined him around July 2009, closing her cleaning business. • They lived together in El Paso and were married on December 28, 2009. The parties lived in Texas approximately two and a half years, and appellee worked as a cosmetology instructor for a couple of months while there. The parties moved to Augusta, Georgia, in 2011 when appellant was sent to officer training there. After training, appellant was transferred to Tennessee. Appellee worked several months as a cosmetology instructor while in Tennessee. Appellant underwent hip surgery in 2012, and he retired in February 2013. The parties moved to California after appellant's retirement because he was unhappy with the service he was receiving from the VA in Tennessee. Appellee flew to Tennessee while appellant was receiving services in California to get appellant's medical records and to downsize their home. They lived in California for about a year and then returned to Tennessee. They subsequently sold their home, packed up their RV, and moved to Arkansas. Appellee helped clean cabins and haul "wood and stuff" after she moved to Arkansas. Appellant underwent back surgery in November 2015. Appellant left appellee on April 10, 2016, and moved back to California.

Williams v. Williams, 2018 Ark. App. 79 (1/31/18) • Permanent Alimony Award Reversed • Payor had income of $6, 506. 56, expenses of $5, 299. 92. Ordered to pay $1, 100. 00 in alimony for 5 years. This left the Payor with $100. 00 per month. • Other important factors: (1) the parties lived a rather modest lifestyle in an RV and motorhome; (2) the marital home and RV were ordered to be sold and each party will equally split the proceeds; (3) appellant has a fixed income that is unlikely to change in the future; however, appellee has applied for disability and has appealed that decision so there is a possibility that she will receive disability payments in the future of her own; (4) both parties are going to share equally in the money from the sale of the RV and motorhome; (5) there is evidence that neither party is able to earn any income; (6) the jointly held property is scheduled to be sold and the proceeds divided so no one party will receive a windfall of the money; (7) both parties have bad health and medical needs and appellant is responsible for paying for appellee's medical insurance until the marital property is sold; (8) the parties were only married for six years and this was the third marriage for both of them. • Based on this evidence, the court's alimony award was not reasonable and was an abuse of discretion. To the extent that appellant argues that the trial court should have awarded appellee rehabilitative alimony, that issue is not preserved for our review. However, we reverse the court's award of permanent alimony and remand for the court to issue an order consistent with this opinion. In doing so, we are not foreclosing the court from considering whether appellee is entitled to some other form of alimony.

Martens v. Blasingame, 2018 Ark. App. 96 (2/7/18) • Craig Martens appeals a White County Circuit Court order denying his request for automatic termination of alimony payments upon the remarriage of his ex-wife Melanie Martens (now Blasingame). • Martens and Blasingame were married in May 1996 and divorced in January 2015. The parties agreed on several issues, which were set forth in the divorce decree. They agreed on child custody, visitation, and child support. They also agreed on property division; specifically, Blasingame was awarded sole ownership of the parties' GMC Acadia and agreed to indemnify, defend, and hold Martens harmless from any and all indebtedness owed on the vehicle. Additionally, they agreed on alimony, and the decree awarded Blasingame "alimony" in the amount of $702. 34 for 48 consecutive months—the exact amount and duration of the car payments on the Acadia. • After the decree was entered, Martens made only two spousal-support payments. Martens unilaterally ceased his alimony payments, believing Blasingame had begun cohabitating with her boyfriend in March 2015. In May 2015, Blasingame remarried. On December 15, 2016, the Office of Child Support Enforcement notified Martens that it would begin withholding past -due and future claims for child and spousal support from his wages. As a result, Martens filed a motion to clarify the divorce decree relating to alimony. Citing Arkansas Code Annotated section 9 -12 -312, Martens argued that he no longer owed spousal support because his liability for alimony automatically ceased in March 2015 upon Blasingame's cohabitation, or at the very latest, in May 2015 when Blasingame remarried.

Martens v. Blasingame, 2018 Ark. App. 96 (2/7/18) • Trial Court: Although designated as alimony, the $702. 34 was in actuality a payment pursuant to a property-settlement agreement reached by the parties and noted that the "alimony" payments were derived from the amount owed on the vehicle. It also noted that the way the other property was divided in the divorce, along with Blasingame's apparent lack of need at the time, further militated toward a finding of property settlement over alimony. As a result, the trial court refused to find that the payments were terminated upon Blasingame's remarriage HELD: Under our de novo review, we find that the parties reached an independent agreement for the payment of alimony; thus, removing it from the automatic-cessation requirements of the law.

Martens v. Blasingame, 2018 Ark. App. 96 (2/7/18) • Here, both parties admitted to an agreement regarding the payment of alimony. They both admitted that the alimony payments were designed to cover the remaining balance of the automobile loan covering the GMC Acadia. They further agreed to alimony payments of a designated sum for a designated period of time. In Artman v. Hoy, 370 Ark. 131, 257 S. W. 3 d 864 (2007), our supreme court held that section 9 -12 -312, which provides for the automatic termination of alimony when the receiving spouse remarries or cohabitates, does not apply to an agreement for the payment of alimony over a term of years, even when the decree does not specifically address the effect of remarriage or cohabitation on the alimony obligation. Instead, when the parties agree to alimony for a designated period of time, it follows that there has been an agreement as contemplated by section 9 -12 -312(a), such that the automatic-termination provision regarding remarriage or cohabitation is not applicable. Id. • Because we can affirm the trial court when it reaches the right result, even though it may have announced the wrong reason, Delgado v. Delgado, 2012 Ark. App. 100, 389 S. W. 3 d 52, we hereby affirm the trial court's decision to deny Martens's request for termination of his alimony payments. • Make sure your independent alimony agreements state affirmatively the termination language if that is what you are trying to do…. .

Howell v. Ark. Dep't of Human Serv. , 2018 Ark. App. 117 (2/7/18) • DHS filed a petition for termination of parental rights on March 7, 2017. It claimed that termination of parental rights was in the best interest of the two children, and three statutory grounds were alleged as to Tiffany. • DHS also alleged that Tiffany had been represented by counsel from the beginning of the case, had been served pursuant to Arkansas Rule of Civil Procedure 4 (2017) at the initiation of the proceedings, and the case had been initiated less than two years prior. See Ark. Code Ann. § 9 -27 -341(b)(2)(A) (requiring that the petition to terminate parental rights may be served under Ark. R. Civ. P. 5 (2017) if the parent was served under Rule 4 at the initiation of the proceeding). • Further, DHS alleged that Tiffany would be served in accordance with Rule 5, "specifically service to be effectuated on her counsel, Terry Jones. " The certificate of service states that the petition for termination of parental rights was served on Jones by email and lists the email address. At the termination hearing held June 27, 2017, Tiffany's attorney moved for a continuance stating “My client was not served with a petition for the termination while she was in prison and I am asking for a continuance at this time to give me an opportunity to go over this with my client. She is getting out of prison next week and this would also give me additional opportunity to discuss the matter with her. I also never received a copy of the petition. ” • DHS opposed the continuance motion, arguing that Rule 5 service was appropriate and that an email was sent. Further, DHS noted that the termination hearing had been originally set for May 11, and Tiffany did not argue at that time that she had not been served with the petition. DHS claimed that the request for continuance was late, and the attorney ad litem also objected to the continuance. The trial court denied the motion for continuance, noting its agreement that Rule 5 service was authorized.

Howell v. Ark. Dep't of Human Serv. , 2018 Ark. App. 117 (2/7/18) • 5(b) Service: How Made. (1) Whenever under this rule or any statute service is required or permitted to be made upon a party represented by an attorney, the service shall be upon the attorney. . • (2) Except as provided in paragraph (3) of this subdivision, service upon the attorney or upon the party shall be made by delivering a copy to him or by sending it to him by regular mail or commercial delivery company at his last known address or, if no address is known, by leaving it with the clerk of the court. . When service is permitted upon an attorney, such service may be effected by electronic transmission, including e-mail, provided that the attorney being served has facilities within his or her office to receive and reproduce verbatim electronic transmissions. Service is complete upon transmission but is not effective if it does not reach the person to be served.

Howell v. Ark. Dep't of Human Serv. , 2018 Ark. App. 117 (2/7/18) • HELD: • We agree and hold that DHS failed to carry its burden of proving that the petition to terminate parental rights was effectively served. • We do not accept DHS's argument that Brown, supra, is inapplicable because Tiffany failed to argue that service was defective under Rule 5 was the basis of Tiffany's argument, and the trial court relied on Rule 5 when it found that Tiffany was served through her attorney. • Similarly, we disagree with DHS's argument that the petition for termination of parental rights was no surprise to Tiffany and therefore she had no basis to seek a continuance. As stated in Brown, awareness of the case cannot cure a service defect. Because DHS failed to prove that it procured effective service of the petition to terminate parental rights, we reverse the trial court's decision to terminate parental rights.

Nauman v. Nauman, 2018 Ark. App. 114 (2/14/18) • Divorced in November 2016 • Married for 19 years. Mom was a stay at home mom, Dad traveled a lot for work. Kids were 14 and 17. • Parties were roughly splitting property in half – each got $6. 5 million in liquid assets and personal property. • Tried the issues of alimony, child custody/child support, and whether certain stock options were marital property. • Child Support: $9100 per month to continue until both children reach age eighteen. The circuit court clarified that no child support shall be payable on Michael's stock grants that are divided with Rene, but Michael shall pay fifteen percent of the value of the stock grants that are not divided (the post-2017 stock grants) into a trust for the children. Alimony of $2, 500 per month awarded. Trial court acknowledged that, though Rene has a means of income through investments, child-support payments will continue only four more years and that "with two school-aged children, with which [Mom] is heavily involved and [Dad] who is only able to be here some, only working part-time right now is feasible for [Mom]. . [s]uch… work could be increased as the children leave home. Therefore, [Dad] shall pay spousal support of. . . $2500 per month. " The circuit court also noted that the matter of alimony is subject to review in four years but that "the Court is just not going to try and predict that far out. "

Nauman v. Nauman, 2018 Ark. App. 114 (2/14/18) • Shuffield explained that if Rene does not liquidate any of her assets, the dividends from investments provide around $85, 000 in yearly income. Shuffield testified that, according to her pretax analysis, if Rene chooses to spend the principal and the interest of the assets she receives in the divorce, not including retirement accounts or child-support payments, she will have a yearly income of $130, 000. Shuffield estimated that if the spendable amount of child support is added to this amount, Rene's yearly income would be around $190, 000. HELD: Although the facts of this case would arguably support the denial of an award of alimony if that had occurred, it is not our duty under our standard of review to simply substitute our judgment for that of the circuit court, which was in a far better position to judge the credibility of the witnesses. It is instead our duty to determine if the circuit court abused its discretion in making its findings regarding the award of alimony. In both Cole and the instant case, the circuit court clearly considered the facts, testimony, and evidence and thoughtfully employed its discretion.

Nauman v. Nauman, 2018 Ark. App. 114 (2/14/18) • The circuit court engaged in a careful analysis weighing the relative financial positions of the parties, Rene's role as primary caregiver, her improved ability to find employment or further education when the children are in college, both parties' affidavits and testimony regarding household expenses, and the amount of child support awarded. The circuit court did not exercise its discretion thoughtlessly, improvidently, or without due consideration. • Stock Options: Court analogized it to that of contingency fee agreements divided in divorces: Like Mc. Dermott, during the marriage, Michael expended time and effort working for Brady. The stock options Michael can "collect" as deferred compensation for the work he performed before the divorce are divisible, marital property. • In the instant case, the circuit court makes it clear that Rene's interest in the stock awards is a quantifiable, proportional percentage of the deferred payment for Michael's past performance for Brady during the marriage. The court's percentage-based division of the property is appropriate and necessary when the value of the property is not immediately ascertainable as it is here and in Mc. Dermott. For the reasons set forth above, we affirm.

Wakefield v. Bell, 2018 Ark. App. 120 (2/14/2018) • Paternity Case • Dad filed Petition for Paternity and Petition for Custody. Temp. hearing held and Mom awarded temporary custody. • Allegations of abuse surfaced against Mom during the litigation. SHOCKING! • Final Hearing, Mom put up an expert witness with a bachelor's degree in psychology and a Ph. D in education. • Dad objected to the expert testimony because she had never met Dad or been to his house, she had a total of seven sessions with Mom, the only information she had was what Mom had described to her about the child's conduct upon returning from a visit with Dad, and she was not familiar with the best-interest standard in Arkansas. Her testimony was also weird because she kept talking about how awful it would be if the child was placed in foster care which was not something that was really being threatened. • Trial court admitted the testimony over the objection of Dad and said his objections went to the weight of the testimony. • Dad never objected that Expert’s qualifications or argued anything else like prejudicial > probative. • In reviewing the trial court's handling of this witness's testimony, it is important to note the matter was being tried to the court. In responding to Nate's objections to many aspects of Rye's testimony, the trial court directed the witness to be specific to the case at hand, it noted that the objections would go to the weight of the testimony, and the trial court expressed its understanding that Rye had not interviewed Nate. We find no basis for reversal under this point

Wakefield v. Bell, 2018 Ark. App. 120 (2/14/2018) • Okay on the 2 nd point of appeal…. There is this zip drive. It’s stipulated by everyone that it can be admitted into evidence. It contains pictures depicting injuries and medical records. • When being offered as a Joint Exhibit, the trial court asked if the 100 s of pictures and documents were relevant. Trial Court said “we do not need that if we have twenty-five we are going to testify about. That will be fine. ” • Then it was like everyone gave up on it and just proffered it rather than get the 25 pictures or whatever that would be relevant. • Although the parties stipulated to the admission of the zip-drive exhibit containing "hundreds" of photographs, the stipulation did not include explanations putting the hundreds of photographs in context, e. g. , when they were taken, under what circumstances, and by whom. Moreover, the only testimony relied upon by Nate in his appellate arguments regarding the "included medical reports" came from his father, Travis Wakefield, who has no medical expertise nor record-keeping responsibilities concerning the medical records. In fact, the testimony from appellant's father regarding the medical records, and relied upon by Nate in arguing this issue, consisted of the following: "The medical records on that disc show that he [R. W. ] had contusions, bruises and things like that. “ • Without more explanation from either counsel, the trial court's ruling was perfectly rational because the trial court had sufficient evidence before it on the abuse issue and did not need the addition of "hundreds" of unexplained photographs and "included medical records. "

Garcia v. Garcia, 2018 Ark. App. 146 (2/21/2018) • Jose and appellee, Maria Garcia, were married for thirteen years. The couple have two minor children together, X. G. (born in 2003) and B. G. (born in 2005). • At the trial on June 8, 2017, Maria waived corroboration of grounds for divorce, and Jose waived all rights to visitation with his children. When the agreement for monetary support came up, the court clearly stated that it was not going to enforce an agreement that was entered into before either party had an attorney and was written in a language that one party did not understand. Maria repudiated the agreement in open court. Jose's attorney asked that the repudiation be put in the language of the divorce decree so that it may be filed with the clerk's office, to which the court agreed. • Regarding Maria's pension, Jose testified that he should receive the "marital fraction, " "the portion of Ms. Garcia's pension that corresponds to the time we were married. " Maria testified that, although she is not a contributor to the pension plan, she is vested and will receive "something" from the district after she retires. She testified that "I know I'm vested" and "I was vested after three. . . years of working at the school district. “ • Trial court awarded Jose "the marital fraction, if any there be, of Ms. Garcia's pension with the Little Rock School District. " • HELD: reversible error for the court to fail to make an unequivocal finding that Maria had a vested interest in her pension plan based on the undisputed evidence presented at trial. To the extent that this is a finding at all, it is clearly erroneous. Reversed and remanded for an unequivocal finding and for a specific distribution of the pension.

Garcia v. Garcia, 2018 Ark. App. 146 (2/21/2018) • Jose's third and final point on appeal alleges that the court failed to evenly divide the parties' marital property because it failed to distribute numerous items of personal property Jose specifically requested, including a floor buffer, an Apple computer (or the proceeds therefrom), title and license plates for the vehicles, his California driver's license, his Mexican military documents, a large speaker, a photograph of his father, and pictures of the children without their faces cut out. • These items were specifically requested in Jose's pretrial motion for contempt, and he testified about them at trial, but the court's written order fails to designate them as marital or nonmarital property or to distribute them to either party. Jose argues that it is impossible for us to determine whether the court equally distributed the couple's marital property when these items, some of which were of significant value, were not addressed in the decree. • We agree. For the reasons stated above as to Jose's first point on appeal, we reverse and remand for a specific designation and allocation of assets pursuant to 9 -12 -315

Tidwell v. Rosenbaum 2018 Ark. App. 167 • Relocation Case – Post Cooper • Ronald Shelton Tidwell appeals from the Hempstead County Circuit Court's order allowing appellee Lauren Madison Rosenbaum to relocate to Florida with their minor child, A. T. On appeal, Tidwell contends that the circuit court made a mistake of law when it interpreted the original agreed custody order as granting Rosenbaum "sole custody" when the express terms of the agreed order had granted the parties "joint custody. " We reverse the circuit court's order and remand for further proceedings. First, let’s go to the Order……. .

Tidwell v. Rosenbaum 2018 Ark. App. 167 (2/28/18) • Tidwell and Rosenbaum have one child together, A. T. Tidwell filed a petition to establish paternity and award custody in 2012. • The court found Tidwell to be the "actual, legal and biological father" of A. T. and provided the following regarding custody and visitation: • [Tidwell] and [Rosenbaum] are granted joint custody of said minor child born to them, with primary physical custody and custodial residence being awarded to [Rosenbaum]. • [Tidwell] is granted visitation with said minor child as follows: (a) Sunday at 6: 00 p. m. until Tuesday at 6: 00 p. m. ; then Friday of the same week from 6: 00 p. m. until Sunday at 6: 00 p. m. ; then the following Wednesday at 6: 00 p. m. until Thursday at 6: 00 p. m. ; whereupon the foregoing two-week rotation will resume per the foregoing on Sunday at 6: 00 p. m. and so forth. • Holiday visitation shall be as outlined for a child of three (3) years or older in this Court's Standard Order Regarding Child Visitation and Related Matters (a copy of which is attached hereto and incorporated herein • Tidwell]'s overnight visitation shall take place at [Tidwell]'s parent's home; and, (e) All other provisions of this Court's Standard Order Regarding Visitation and Related Matters not inconsistent with the terms hereof are incorporated herein.

Tidwell v. Rosenbaum 2018 Ark. App. 167 • On June 4, 2015, Rosenbaum filed a motion to "modify custody relocation restrictions, " alleging that the circuit court's standard visitation order prohibited her from removing A. T. from the state except for brief trips and vacations without the advance written permission of the circuit court or from "permanent removal without a hearing unless both parties have agreed in writing to the removal with notarized signatures. " • Rosenbaum alleged that the agreed order granted her primary physical custody and custodial residence; that a material change of circumstances had occurred since the entry of the agreed order; and that it was in A. T. 's best interest to allow her to relocate with A. T. to Lake City, Florida. • Rosenbaum stated that she was now married and that her husband, Michael Boyle, had obtained a job transfer with his employer to move to Florida. Rosenbaum and Boyle also have a child together, and Boyle's ex-wife had custody of two of his children in Florida. • Rosenbaum additionally alleged that she would be able to pursue her nursing degree in Florida and that A. T. would benefit by being able to continue her relationship with her oneyear-old brother, six-year-old stepbrother, and seven-year-old stepsister once they are in Florida.

Tidwell v. Rosenbaum 2018 Ark. App. 167 • Tidwell testified that he is married and that he and his wife have a child together. Although he admitted that he had occasionally been behind on child support, he said that he was current at the time of the hearing and had never been behind more than two weeks. • Tidwell testified that although the agreed order provided that overnight visitation would occur at his mother's home, the parties had orally modified the agreement to allow visitation in his home. Tidwell acknowledged that Rosenbaum is a good mother and that she is the proper person to have primary physical custody of A. T. unless she moved to Florida. • Tidwell additionally admitted that Rosenbaum took A. T. to all of her medical, dental, and optometrist appointments and had never presented him with a bill or asked him to pay for those appointments. • When asked about what joint custody meant to him, Tidwell responded that "joint custody gives me the right to take A. T. to the doctor, be A. T. 's caregiver, and to participate in the major decisions in her life. " Tidwell argued that visitation and participation in A. T. 's life would be difficult if Rosenbaum and A. T. moved to Florida since he spent at least twelve to fourteen days a month with A. T. in his custody. •

Tidwell v. Rosenbaum 2018 Ark. App. 167 • The circuit court found in favor of Rosenbaum, allowing her to relocate with A. T. to Florida. The court did not find a material change of circumstances and did not go through an analysis regarding primary versus joint custody pursuant to the Hollandsworth and Singletary line of cases; rather, it based its decision on the parties' "agreed" order, finding as follows: • “That this case does not present the legal or factual situation of an existing true joint custody case because the parties had previously ordered that primary physical custody of the minor child was vested with the Mother, who was also granted the sole right to determine the residence of the Child, all as set forth in this Court's prior Order of March 12, 2013[. ]” • Reversed!

Tidwell v. Rosenbaum 2018 Ark. App. 167 • HELD: • The agreed order "granted joint custody of said minor child born to them with primary physical custody and custodial residence being awarded to Mom is ambiguous on its face. • When a contract is ambiguous on its face, we resolve the ambiguity by looking at other parts of the contract and the parties' testimony about what they intended, as well as their conduct. Jones v. Jones, 2015 Ark. App. 468, at 10, 469 S. W. 3 d 402, 408. The circuit court failed to conduct this analysis in this case and instead found "[t]hat this case does not present the legal or factual situation of an existing true [*9] joint custody case because the parties had previously Ordered that primary physical custody of the minor child was vested with the Mother, who was also granted the sole right to determine the residence of the Child, all as set forth in this Court's prior Order of March 12, 2013. " Because this finding is clearly in error based on precedent set forth herein, we reverse and remand for the circuit court to apply the Singletary and Cooper analyses.

Wyatt v. Wyatt, 2018 Ark. App. 177 (3/7/2018) • “Terry and Lorene Wyatt's divorce generated this appeal. Their divorce proceedings unfolded over several years and did not go smoothly. ” p. s. Love this Quote! • Before and during the marriage, Terry was involved in several businesses—three of them are critical to this appeal. Terry formed A-1 Recovery, Inc. , in 1992—before his marriage to Lorene. Two other corporations—A-1 Recovery Rental, LLC, and A-1 Recovery Towing & Recovery, Inc. —were formed during the marriage. Of great significance to this appeal is the fact that these various business entities owned most of the property used by the parties—including real estate and vehicles—and were used to pay many of the parties' personal expenses. For example, Terry used corporate funds to pay for household furnishings, personal property, personal legal fees, and food. After Lorene filed for divorce, the shenanigans started. • Terry filed of record a sales contract allegedly signed on February 28, 2011, wherein A-1 Recovery Rental, LLC, sold 56 Wyatt Lane—the house the parties lived in before their separation—to Billy Joe Studebaker. • On August 23, 2011, Terry sold A-1 Recovery Rental, LLC, to Billy Joe Studebaker. • September 4, 2012 Terry sold A-1 Recovery Towing & Recovery, Inc. , to Gerald Kennon. • In a separate case before the same circuit court, Lorene attempted to have the conveyances of 56 Wyatt Lane and A-1 Recovery Rental, LLC, to Billy Joe Studebaker set aside as fraudulent. The circuit court refused to set aside those conveyances. BLUE MEANS MARITAL

Wyatt v. Wyatt, 2018 Ark. App. 177 (3/7/2018) • On May 24, 2013 the circuit court entered a divorce decree that adjudicated custody and visitation of Lorene and Terry's minor child—the other two children, twin boys, were over eighteen. By consent and agreement of the parties, the circuit court reserved deciding all issues of property division "due to the unusual circumstances of the parties' property division. " • On January 6, 2016, three years after the circuit court had granted the parties' divorce, the circuit court entered a lengthy order and judgment that dealt with property, child support, spousal support, and attorney's fees. In dividing the parties' property, the circuit court valued the property as of their separation date in August 2011 finding it "impossible to arrive at a reliable value or composition of the marital estate after that date. " • Lorene successfully argued at trial that she was entitled to a portion of the value of A-1 Recovery, Inc—a corporation formed before the parties' marriage. Applying established precedent, the circuit court found that Lorene contributed to the growth of A-1 Recovery, Inc. , and awarded her $412, 765, which represented one-half of the marital value of A-1 Recovery, Inc. , and its wholly owned corporations. Additionally, the circuit court determined that Terry was operating the corporations as his alter ego and pierced the corporate veil. On child support, the circuit court imputed $12, 833. 73 in monthly income to Terry when calculating his obligation. Finally, the circuit court awarded Lorene $31, 950 in attorney's fees. Terry timely appealed the circuit court's order and judgment.

Wyatt v. Wyatt, 2018 Ark. App. 177 (3/7/2018) • 9 -12 -315 states that "at the time a divorce decree is entered all marital property shall be distributed. " • EXCEPTIONS have been established by supreme court cases. One exception allows parties who specifically agree to postpone the division of property to do so. So, the caselaw authorizes Lorene and Terry's agreement to delay the disposition of their property. • HELD: Terry contends that this caselaw should be overruled in favor of fidelity to the plain language of the statute. That is always a good argument to make, but we cannot overrule a supreme court case. Be that as it may, any alleged error was invited by both parties, and "it is fundamental that, pursuant to the doctrine of invited error, an appellant cannot request a ruling. . . and then complain of that ruling on appeal. "

Wyatt v. Wyatt, 2018 Ark. App. 177 (3/7/2018) • Terry argued it was error to divide “as of separation date” rather than as of “date of divorce. ” • Court of Appeals Affirmed: The circuit court's findings clearly establish that it found Terry's unilateral actions of disposing of property before the date of divorce were done specifically with Lorene's detriment in mind. We hold that those findings are not clearly erroneous, and we refuse to reverse. • The circuit court valued the parties' marital property as of the date of their separation because it found using this date was the only means to achieve a fair and equitable result. Stated in practical terms, nothing is gained by ordering the circuit court to do something that it has plainly said it cannot do given the proof the parties placed before it and the meandering and complicated nature of this case.

Wyatt v. Wyatt, 2018 Ark. App. 177 (3/7/2018) • Next issue: whether the circuit court erred by piercing the corporate veil. • Simply put, the circuit court found that Terry had commingled the assets of the marital estate with those of his corporations such that he abandoned the corporate form, and his corporations became his alter egos. As a general principle, a corporation and its stockholders are separate and distinct entities, even though a stockholder may own the majority of the stock. A stockholder does not acquire any estate in the property of a corporation by virtue of his or her stock ownership; the full legal and equitable title thereto is in the corporation. But when special circumstances warrant, a court may disregard the corporate façade when the corporate form has been abused to the injury of a third party. The doctrine of piercing the corporate veil is founded in equity and is applied to prevent an injustice. Terry argued that there is no reported case in Arkansas in which the corporate veil has been pierced in a domestic-relations case, so Arkansas does not allow for piercing of the corporate veil in divorce actions.

Wyatt v. Wyatt, 2018 Ark. App. 177 (3/7/2018) • Our law regarding piercing the corporate veil requires a finding that the corporate form has been abused to the injury of a third party. We use a clearly-erroneous standard of review to evaluate whether the corporate veil was properly pierced. • Whether the corporate veil may be pierced is a fact-dependent and credibility-based decision. • Here, there is sufficient evidence to support the circuit court's finding that Terry illegally abused the corporate form to Lorene's detriment. The evidence demonstrated that Terry was using corporate funds to pay for many personal expenses, including real estate, vehicles, meals, and clothing. This was to Lorene's detriment because it looked like he had limited personal funds available for child support and for property division when, in fact, he seemingly had broad access to his corporate entities' largesse to use for his personal expenses. We hold that it was not clearly erroneous to pierce the corporate veil given this record.

Wyatt v. Wyatt, 2018 Ark. App. 177 (3/7/2018) • Because we hold that the circuit court's decision to pierce the corporate veil must be affirmed each entity—A-1 Recovery, Inc. ; A-1 Recovery Rental, LLC; and A-1 Recovery Towing & Recovery, Inc. —operated as Terry's alter ego through the duration of the parties' . So each entity—regardless of whether it was formed before the marriage, a wholly-owned subsidiary of a corporation formed before the marriage, or an entity formed during the marriage—is marital property subject to division. The circuit court did not err by marriage awarding Lorene one-half of the value of each of these corporate entities.

Dare v. Frost, 2018 Ark. 83 (3/8/2018) • Parrish Dare (MOM) appeals from an order of the Saline County Circuit Court modifying the visitation awarded to appellee Scott Frost (DAD) and denying her petition to modify the amount Frost pays in child support. • She argues that the circuit court erred in finding that there had been a material change in circumstances that justified modifying Frost's visitation with the parties' child. She also argues that the trial court erred in deciding not to include the increase in the value of Frost's stock portfolio in the calculation of his child-support obligation and deciding not to impute additional income to Frost. We affirm. • While the parties lived in Virginia, they were involved in a relationship that produced one child, R. D. The parties were never married. A Virginia court ordered Frost to pay child support in the amount of $400 per month. The court awarded Frost "liberal visitation" and set a visitation schedule that alternated holidays and gave Frost two weeks in the summer with R. D. After Dare relocated to Arkansas with the child, Frost typically kept the child for three to four weeks during the summer. Frost also began paying $425 per month in child support. • In 2015, Dare began asking Frost to pay additional child support; he declined. During this same period, Dare restricted Frost's visitation to that provided for in the Virginia court order • SERIOUSLY? ? EVERYONE KNOWS WHAT YOU ARE DOING MOM!

Dare v. Frost, 2018 Ark. 83 (3/8/2018) • In February 2016, Frost petitioned to register the Virginia orders in the Saline County Circuit Court. He contemporaneously filed a motion for modification in which he alleged that there had been a change in Dare's "willingness to co-parent" that constituted a material change in circumstances justifying an award of additional visitation with R. D. • Dare filed a counterclaim in which she requested a modification of Frost's child-support obligation to reflect his current income. (WALKED RIGHT INTO IT) • The circuit court held hearings on the visitation and child-support issues. Regarding child support, Dare argued that the growth of Frost's stock portfolio should be considered in the calculation of his child-support obligation. Dare also contended that the trial court should impute Frost's income commensurate with his lifestyle. • Trial Court determined a material change in circumstances had occurred and modified Frost's visitation, increasing summer visitation to four weeks each summer and setting out a schedule for holiday visitation. • The circuit court also found that there was insufficient evidence to impute income beyond that reported on his affidavit of financial means and ordered him to pay child support in the amount of $213. 00 every two weeks based on his reported bi-weekly income of $1, 174. 46. (this was only $36. 00 more than he was already paying voluntarily)

Dare v. Frost, 2018 Ark. 83 (3/8/2018) • The parties filed competing petitions for review with the ARSC, with Dare seeking review of the portion of the circuit court order on the issue of visitation that was affirmed and Frost seeking review of the court of appeals' decision to reverse and remand on the issue of child support. Dare's petition was denied; Frost's was granted. (THE ARSC then treats the appeal as if originally filed in ARSC) • Let’s talk about what Mom did to hurt the child’s relationship with Dad: • The circuit court found that Dare had exposed R. D. to inappropriate circumstances and had been negative toward Frost to such a degree that it caused strain between R. D. and Frost. • Examples: Parties agreed to modify the VA Order in 2011 to give Dad more time in the summer which was 3 -4 weeks. During his testimony, Frost read from an email sent to him by Dare in which she stated that if he did not pay more than was required by the child-support guidelines, she would not do anything outside of the visitation guidelines. Mom did not dispute this position. • In 2015, she sent the kid to stay in TX with one of her friends for 2 weeks and only gave Dad 2 weeks in the summer. • Frost also testified regarding a Thanksgiving visitation when Dare sent R. D. to his home with a mostly empty suitcase. Dare testified that this was intended as a message to Frost that he was not taking responsibility for R. D. 's care while she was with him. SHE SENT HER CHILD WITH A EMPTY SUITCASE TO SEND A MESSAGE TO HIS DAD. • Frost further testified that Dare told him that she allowed R. D. to read their correspondence regarding child support, which included statements by Dare that he was not doing enough for R. D. Frost stated that this resulted in different behavior toward him by R. D. Frost stated that he felt like Dare pushed him out and made R. D. feel like it was acceptable to minimize his part in her life.

Dare v. Frost, 2018 Ark. 83 (3/8/2018) • Under these circumstances, we conclude that the change in the parties' interactions with each other constitute a material change in circumstances sufficient to warrant a modification of visitation. We affirm the circuit court's order modifying the visitation schedule. • Child Support Issue: Dad has a stock account worth 40 K. It fluctuates, but he doesn’t “realize” any of the money in the account. Mom wanted increases in value to be considered income for purposes of child support and get a percentage of it as it were a bonus. • The order requires Frost to treat funds he receives from the investment account as income in calculating child support, while not requiring him to treat an unrealized increase in his portfolio's value as income. This would require Frost to include cash dividends or realized gains he receives from his stocks in the amount of child support to be paid. On this record, we cannot conclude that the circuit court erred, as the record is insufficient to establish that the portfolio activity sought by Dare to be included in the child support calculation constitutes income as defined in Administrative Order Number 10. • Baker, Hart, and Goodson concur in part and dissent in part. Couched this stuff as petty complaints and not a material change and would have treated the capital gains as income per Admin. Order No. 10. Said record supported that finding.

Mays v. Mullins, 2018 Ark. App. 200 (3/14/18) This law places the burden on the party contesting the premarital agreement to prove its invalidity. To prevail under this statute, it was Kathy's burden to establish either that she did not execute the agreement voluntarily, or that all of the following existed: (1) that the agreement was unconscionable; (2) that, before the execution of the premarital agreement, she was not provided a fair and reasonable disclosure of Sedrick's property or his financial obligations; (3) that, before the execution of the premarital agreement, she did not voluntarily and expressly waive, after consulting with legal counsel, in writing, any right to disclosure of Sedrick's property or financial obligations beyond the disclosures provided; and (4) that, before the execution of the premarital agreement, she did not have, or reasonably could not have had, an adequate knowledge of Sedrick's property or financial obligations.

Mays v. Mullins, 2018 Ark. App. 200 (3/14/18) • On the issue of voluntariness, Kathy's argument appears to be that she was tricked into signing only the signature pages, that she was deceived into believing that she was witnessing a promise by Willie to repay a debt to Sedrick, and that she could only have been asked to do this after the marriage and not before she married. What Kathy is asking us to do, in essence, is to reweigh the evidence in her favor and to find her to be credible, which is not the function of the appellate court. • The trial court had before it the testimony of Willie Bradley who confirmed that the execution of this document took place on the day before the wedding, with Sedrick, Kathy, Angela, and the notary present; Willie stated that Sedrick introduced Kathy as his fiancée; the document bore the notary seal pressed through each of the final pages; the page on which Kathy's signature appears contains the words "antenuptial agreement" just below her signature; a document examiner provided expert testimony supporting a finding that this was Kathy's signature; and even Kathy acknowledged that she probably signed something with these people present, although she disputed the document's length, purpose, and the timing of its execution. The trial court obviously believed that the entire agreement was present on the date it recites that it was signed. The trial court clearly put the responsibility on Kathy, an adult college -educated person, for any alleged failure to read or comprehend this agreement as a choice made at her own peril. Therefore, we cannot say that the trial court clearly erred in concluding that Kathy failed to prove that she involuntarily executed the agreement. HELD: A trial court did not clearly err in finding that the decedent's wife had voluntarily signed a premarital agreement where it put the responsibility on the wife, an adult college-educated person, for any alleged failure to read or comprehend the agreement as a choice made at her own peril HELD: The trial court did not err in concluding that the premarital agreement was not unconscionable where the parties had equal bargaining power, and the agreement disclosed the decedent's premarital real estate with particularity.

Thompson v. Brunck, 2018 Ark. App. 198 (3/14/18) • Note: You need to read the facts of this case. It’s too long to condense into slides. While bio mother has issues, what went down here is awful. The adoptive parents are also victims in this. Whomever Amber Biggerstaff is, she ought to be ashamed of herself. You can tell her I said it. /s/ Lauren • Issue was whether an adoption should stand…… • Even when a final adoption decree has been entered, a statutory consent to adopt may be withdrawn when fraud, duress, or intimidation is proven. Setting aside an adoption is, of course, not an easy thing to do for obvious reasons. The fraud for which a decree will be canceled must consist in its procurement and not merely in the original cause of action. It is not sufficient to show that the court reached its conclusion upon false or incompetent evidence or without any evidence at all, but it must be shown that some fraud or imposition was practiced upon the court in the procurement of the decree, and this must be something more than false or fraudulent acts or testimony the truth of which was, or might have been, in issue in the proceeding before the court which resulted in the decree assailed. The law is settled that the fraud which entitles a party to impeach a judgment must be fraud extrinsic of the matter tried in the cause, and does not consist of any false or fraudulent act or testimony the truth of which was or might have been in issue in the proceeding before the court which resulted in the judgment assailed. It must be a fraud practiced upon the court in the procurement of the judgment itself. The party seeking to set aside the judgment has the burden of showing that the judgment was obtained by fraud, and the charge of fraud must be sustained by clear, strong, and satisfactory proof.

• Thompson v. Brunck, 2018 Ark. App. 198 (3/14/18) Kristal neither signed, nor understood, the relinquishment affidavit in a contextual vacuum. As her testimony and the text messages trumpet, she signed with this in mind: she and Amber had a temporary plan, one that Amber admittedly changed. • Kristal signed a document that she believed gave Amber the ability to temporarily care for N. R. D. in some stated particulars—like taking the child to the doctor and putting her in daycare while Kristal got on her feet financially. In this joint scheme, adoption was considered solely as an option for Amber and her husband to adopt N. R. D. with the purpose of preventing N. R. D. 's biological father from requesting custody. • Setting aside the moral morass that the conspiratorial plan raises from the father's perspective—and that Amber doled out "legal advice" as if from a Pez dispenser—the written evidence established that Kristal wanted to proceed with an adoption, if at all, on the (mis)understanding that she could share "joint custody" of N. R. D. with the Biggerstaffs. There is no evidence to the contrary. • Unbeknownst to Kristal, the Biggerstaffs were not the would-be adoptive parents; two people who lived in Loveland, Ohio, and whom Kristal had never met or communicated with, were the targets. The parties' briefs do not explain how the Biggerstaffs know the Bruncks. The parties' briefs do not explain how the Kristal/N. R. D. /Amber triangle morphed into a Kristal/N. R. D. /Bruncks triangle. • What we do know is that the Bruncks apparently did not testify during the hearing that was convened for the sole purpose of deciding whether their adoption had been procured by a fraud. It is unclear if they were even present at the hearing. What we do know is that Kristal grew increasingly uncomfortable with the arrangement and, within a few short weeks, had expressly pleaded with "momma bear" to give her child back. Amber replied that the paperwork could not be undone.

Thompson v. Brunck, 2018 Ark. App. 198 (3/14/18) KRISTAL: Aunt Amber, I want my baby back, what are you trying to tell that I have to do to come and get my baby back because you told me that I could come get my baby back when I was ready, so what are you telling me that I have to do to get my baby back? AMBER: This isn't how it works Kristal. Would u like to speak to the attorney? KRISTAL: Yes ma'am I would like to speak to the attorney so we undo the paperwork and I can get my baby. AMBER: U can't undo the paperwork. I can sign her over but the paperwork can't be undone. Legal papers don't work like that. KRISTAL: That's not how you explained it to me. AMBER: Yes it is Kristal. No one has done anything without u knowing[. ] The Bruncks' petition to adopt had not yet been filed and no adoption order had yet been entered when Amber provided this "legal advice. " And, again, as far as we can tell, the record does not establish that Amber told Kristal that N. R. D. was headed to a couple who lived in Ohio. Nor did she arguably disclose to Kristal that she later notarized Kristal's signature on a separate page and then used that notarized signature to support an out-of-state adoption.

Thompson v. Brunck, 2018 Ark. App. 198 (3/14/18) • The circuit court agreed that Amber's statements in the text messages were "misrepresentations. " Correct. It erred, however, by declaring them irrelevant. A false representation of a past or present material fact, when one has a duty to speak the truth, is a fraud when another detrimentally relies on the representation. Moreover, a legal duty can arise when one person has placed a special confidence in another person; in which case, the latter person is bound, in equity and good conscience, to act in good faith and with due regard for the interests of the other. That is the case here. Put bluntly, Amber owed a duty of full disclosure to Kristal given the special and sensitive circumstances. BIG PICTURE: A circuit court clearly erred in failing to set aside an adoption decree where although the face of the relinquishment affidavit attached to the adoption petition reflected that the biological mother may well have signed it, the text messages and testimony showed that the mother believed that the document gave a friend the temporary ability to care for the child, that she wanted to proceed with an adoption, if at all, with the misunderstanding that the friend would adopt the child and she would share custody, and that she had never met nor communicated with the adoptive couple from OHIO that she didn’t know.

Hewett v. Hewett, 2018 Ark. App. 235 (4/4/18) • Dad and Mom were divorced on October 29, 2012. Based on an agreement of the parties, the court awarded Mom primary custody of the couple's son, who was five years old at the time, and awarded Dad standard visitation. The record reflects that the parties have had significant difficulty communicating since the divorce and that they have continually argued. • In 2013, Mom obtained an ex parte order of protection against Dad, which was dismissed after a full hearing and that which resulted in the court increasing Dad's visitation. • In August 2016, Mom obtained an ex parte order terminating Dad’s visitation, stemming from an incident on July 31, 2016, in which Dad’s new wife called Mom and reported that New Wife and Dad had gotten into an argument, Dad had been drinking, the police had been called, and Dad had left with G. H. to go to a hotel room. Mom retrieved G. H. from the hotel room and refused to allow Dad to have further visitation. The court entered an ex parte order suspending Dad's visitation but subsequently vacated the order and reinstated visitation after a full hearing. • Dad then filed a motion for contempt against Mom and a counterclaim for modification of custody. He argued that Mom had made derogatory statements about him, failed to notify him of G. H. 's baptism, refused to provide him with extracurricular equipment he purchased for G. H. , was disrespectful to Dad via text and in the presence of G. H. , and was attempting to alienate G. H. from Dad.

Hewett v. Hewett, 2018 Ark. App. 235 (4/4/18) • After a temporary hearing, the court found that the parties had not been able to get along since the time of the divorce and found no reason to restrict Dad’s visitation. Mom amended her motion to include allegations that Kelly had been excessively checking G. H. out of school and that Dad had failed to give Mom the right of first refusal when he needed childcare for G. H. , as required by the divorce decree. • The final hearing revealed further evidence of antagonistic behavior by both parties, including name-calling and an inability to communicate with each other. The court issued an order, filed on January 17, 2017, which found that there had been a material change in circumstances warranting a change of custody. While the court did not explicitly state how the circumstances had changed, the only circumstances that the court mentions in the order are the parties' inability to get along or communicate civilly with each other. The court found it was in G. H. 's best interest to award joint custody, which it did. It ordered the parties to agree on all decisions regarding the child, specifically stating that if the parents could not agree on extracurricular activities then G. H. would not be able to participate in such activities. The court found both parties in contempt: Mom for name-calling and Dad for being under the influence of alcohol in the presence of the child. Mom filed a timely notice of appeal challenging the court's modification of custody.

Hewett v. Hewett, 2018 Ark. App. 235 (4/4/18) • To facilitate stability and continuity in the life of a child and to discourage repeated litigation of the same issues, custody can be modified only upon a showing of a material change of circumstances. • The court's order failed to articulate the specific change in circumstances warranting modification in this case. • The only circumstances referenced in the order were the parents' inability to communicate civilly and work together to make parenting decisions. • These facts do not demonstrate a change; in the temporary order filed September 21, 2016, the court found that "the parties have a miserable relationship going back to the divorce. " The court had previously found in 2013 and 2014 that Angie's demeanor toward Kelly was unreasonable and could negatively impact the child. Neither the evidence presented at the hearing nor the court's final order demonstrate that the parties' bickering and name-calling was new or had significantly worsened. We agree with Angie's argument that this case is akin to the "scattering of petty complaints" we rejected in Byrd v. Vanderpool. Based on the evidence presented below and the court's previous findings, we see no basis for determining that there had been a material change, which is required before modification of custody can be considered.

Hewett v. Hewett, 2018 Ark. App. 235 (4/4/18) • Court considered for the sake of argument, that the parties' inability to get along and their overt hostility toward each other amounted to a material change in circumstances, it clearly counsels against affirming on the second point, whether joint custody was in G. H. 's best interest. • In the recent case of Li v. Ding, 2017 Ark. App. 244, we reversed and remanded an award of joint custody where the parties had a longstanding problem with communication and cooperation. • In Li, we explained 9 -13 -101 states that an award of joint custody is favored in Arkansas. As used in this section, "joint custody" means the approximate and reasonable equal division of time with the child by both parents individually as agreed to by the parents or as ordered by the court. Regardless of whether joint custody is favored, our law remains that the mutual ability of the parties to cooperate in reaching shared decisions in matters affecting the child's welfare is a crucial factor bearing on the propriety of an award of joint custody, and such an award is reversible error when cooperation between the parties is lacking.

Atherton v. Atherton, 2018 Ark. App. 245 • In a divorce decree, the trial court did not err in determining that the ex-husband's business had a value of $175, 000 because there were substantial cash assets taken in by the business that were not necessarily reflected in the financial documents; the business was providing income and benefits in excess of what was reflected on the tax returns; the husband represented on two financial statements that the value of the business as a nonmarketable security was $375, 000, and that information provided by the husband, which was certified by his signature to be true, correct, and complete, bore some relation to the fair market value of the business and could be considered along with the other evidence in determining its value; and the trial court valued the business at $175, 000, which was less than half of the value represented on the husband's financial statements. • FINANCIAL STATEMENTS ARE GOLD MINES! WE ALL KNOW THEY ARE INFLATED, BUT PEOPLE SIGN THOSE UNDER OATH SO USE THEM WHEN YOU CAN AND HAVE THE TOUGH TALK WITH YOUR CLIENT WHEN THEY ARE THE ONE THAT SIGNED ONE. • Finally, we briefly address David's claim that any value assigned to the business was a result of his personal goodwill, which he claims cannot be divided upon divorce. First of all, we cannot ascertain any significant personal goodwill in a business such as this, which involves the selling of motors to operate gates, nor did the trial court find any. More importantly, the only case cited by David in support of this argument is Brave v. Brave, [*9] 2013 Ark. App. 542, 432 S. W. 3 d 42. However, that case was vacated by our supreme court in Brave v. Brave, 2014 Ark. 175, 433 S. W. 3 d 227, and therefore is of no precedential value and cannot be cited as authority. In our supreme court's opinion in Brave, the supreme court declined to answer the issue of whether personal goodwill could be found in the valuation of a nonprofessional business, as opposed to a professional business. So, although it is settled law that personal goodwill is not a proper consideration in dividing a professional practice or business upon divorce, see Wilson v. Wilson, 294 Ark. 194, 741 S. W. 2 d 640 (1987), this concept has not been extended by the supreme court to encompass a nonprofessional business such as the one involved here.

Townsend v. Townsend, 2018 Ark. App. 246 (4/8/18) • The trial court did not have jurisdiction to modify the parties' visitation arrangement set forth in a Hawaii decree because there was no evidence on the record that the requirements of the Uniform Child Custody Jurisdiction and Enforcement Act, Ark. Code Ann. § 9 -19 -203 (2015), were met • You can enforce, but you cannot modify unless Except as otherwise provided in § 9 -19 -204, a court of this state may not modify a child-custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial determination under § 919 -201(a)(1) or (2) and: • (1) the court of the other state determines it no longer has exclusive, continuing jurisdiction under § 9 -19 -202 or that a court of this state would be a more convenient forum under § 9 -19 -207; or • (2) a court of this state or a court of the other state determines that the child, the child's parents, and any person acting as a parent do not presently reside in the other state. • The trial court changed the father's visitation with the children while they were in the mother's custody from a minimum of twice a week phone/Skype/Face. Time calls to daily calls, and it also granted the mother's request for daily visitation with her children while they were in the father's custody, a point on which the decree was completely silent.

Franks v. Franks, 2018 Ark. App. 266 (4/25/18) • A circuit court did not err in finding that the husband's retirement accounts were separate property where the clear terms of a prenuptial agreement stated that the retirement plan and pension were excluded as his separate premarital property. • Change of names of Retirement had no impact • Wife’s access to the retirement account to withdraw money at the husband's request did not impact the account's ownership • The circuit court properly divided the marital home equally, while enforcing the prenuptial agreement as written, where the wife did not argue that the agreement was unconscionable or unenforceable, but merely asserted that it was unfair as applied; • The wife's arguments that the parties' monthly income was grossly inequitable were rejected as they were merely a re-argument that the prenuptial agreement was unfair as applied.

Cooper v. Merwether, 2018 Ark. App. 282 (5/2/18) • Cooper and Merwether are the parents of A. M. , who was born in September 2014. Although Cooper and Merwether were never married, they lived together following A. M. 's birth until sometime the following spring. After their separation, the parties agreed that each parent would keep A. M. for a week at a time, and neither would pay child support. • In April 2016, Merwether filed a paternity complaint and petition for custody of A. M. Cooper answered and filed a counterclaim asking that custody be placed with her. • The circuit court held a hearing on the complaint and counterclaim in February 2017. Dad presented evidence about his education, work history, and home life, and he related his concerns about Mom's home life. One of those concerns involved a period of time in which Mom resided in a camper trailer, which Dad felt was an inappropriate environment for A. M. Another concern involved the safety of Mom's current residence due to crime in the area. He also expressed his worries about her parenting skills, specifically referencing episodes of severe diaper rash that went untreated by Mom, and he complained about the cleanliness of Mom's home and A. M. 's hygiene while in Mom's care. He further described his frustration with her refusal to cooperate in shared parenting, mentioning specific instances when she refused to return A. M. at the appointed time. • Mom likewise presented evidence of her circumstances. She explained that she was a stay-at-home mother and was able to do so because of her husband's income. She admitted that for a brief time, she and her husband lived in a camper trailer because of the failure of the heater at their rented apartment. She described her current apartment accommodations and noted that A. M. had her own bedroom, as opposed to Dad's home, where A. M. and Dad shared a room. Mom conceded that there recently had been a shooting at the apartment complex, but she denied that it was an unsafe environment for A. M. She expressed her concerns about Merwether's being the primary custodian, explaining that he was too reliant on his mother for care and assistance of A. M. ; here, she complained that his mother had serious health problems that required a significant amount of narcotic medications. She also objected to the fact that Dad lived in a three-bedroom home with his mother, his mother's boyfriend, and his adult brother.

Cooper v. Merwether, 2018 Ark. App. 282 (5/2/18) • Trial Court found that the parties separated around September 2015 and agreed to a child visitation schedule. • Dad testified that he kept the child for a period of 71 days without contact from Mom because of living arrangement problems encountered by Mom. Dad testified that 71 days passed with no contact from Mom about minor child, A. M. • Mom disputes the length of time absent, as well as witnesses who testified on behalf of Mom. The court carefully observed and listened to the testimony on this issue, as well as all other testimony. • The Court believed Dad and considers the actions of Mom in being absent from her child at a young age for that extensive period of time, very detrimental conduct concerning the health, welfare and safety of a minor child. • AFFIRMED

Killingsworth v. Dittmar, 2018 Ark. App. 294 (5/9/2018) • ISSUE: Whether the custody of children was properly awarded to their father. • RELOCATION CASE…. . • Nicole and J. D. divorced on July 6, 2015. A custody agreement was incorporated, but not merged, into the divorce decree, stating in part: • The Husband Wife are to have joint custody of the minor children with the Wife being the primary residential custodian. The Husband shall have reasonable visitation at any time the parties agree. The Husband shall have visitation every week from Thursday at 6: 00 p. m. until Sunday at 6: 00 p. m. and holidays shall be divided pursuant to the Court's standard visitation schedule attached hereto as Exhibit Number 1. . • (b) The parties shall abide by the Court's Proper Conduct rules as attached hereto as Exhibit Number 2. Exhibit number 2, entitled "Proper Conduct of Divorced or Separated Parents, " includes the following rule: "If you are divorced, DO NOT expose your children to any person with whom you may be living unless you are married to that person. Proper and acceptable contact and association with other persons after divorce is not prohibited under this rule. ”

Killingsworth v. Dittmar, 2018 Ark. App. 294 (5/9/2018) • July 21, 2016, Nicole filed a motion to modify visitation and child support in which she asserted that she had moved from Cave City, Arkansas, to Viola, Arkansas, and that she had enrolled the children in school in Viola, where she now works. • Nicole alleged that a material change in circumstances had occurred because she was no longer employed at White River Medical Center (WRMC) where she had been required to work weekends. Nicole alleged that she now works Monday through Friday and that the visitation schedule should be modified such that she will have the children every other weekend. Nicole further alleged that there was also a material change in circumstances regarding her need for support given that the parties now live a greater distance apart. • J. D. responded and alleged that the parties were true joint custodians and that Nicole had unilaterally moved the children to Viola to live with her boyfriend. J. D. alleged that there was no material change in circumstances but that, if the trial court determined that there was a material change, custody of the children should be awarded to him. • Nicole amended her motion to add that she is the primary residential custodian pursuant to the divorce decree and that the parties did not share true joint custody.

Killingsworth v. Dittmar, 2018 Ark. App. 294 (5/9/2018) • J. D. responded to the amended motion, alleging that the parties had agreed to joint custody in the divorce decree. J. D. further alleged that the children had been enrolled in the Cave City School District and that, without notice or permission, Nicole had transferred the children to the Viola School District and had moved in with her boyfriend in violation of the proper conduct rules. J. D. counterclaimed that there had been a material change in circumstances warranting modification of the decree with an award of full custody to him. • In answering J. D. 's counterclaim, Nicole clarified that she had moved in with her husband, Robby Killingsworth, who was previously her boyfriend. Nicole asserted the affirmative defense of unclean hands, alleging that J. D. had moved his then girlfriend Stephanie Johnson into his home three days after the parties had separated and that she had continued to reside there until she and J. D. were married. Nicole further alleged that she had abided by the terms of the divorce decree after her relocation, that nothing in the decree required that she give notice or seek permission from J. D. to move to a neighboring county, and that J. D. was not in a position to adequately care for the children during the week.

Killingsworth v. Dittmar, 2018 Ark. App. 294 (5/9/2018) • Amy Rucker, a speech pathologist at the Viola School District, testified that she had been working with A. D. , who has a mild language impairment and dyslexia. She said that he had an IEP (individual education plan) for speech therapy but that testing requested by Nicole indicated that he also had dyslexia. Rucker testified that Nicole is "very interested" in A. D. 's education and that his stepfather attended meetings with Nicole and asked about A. D. when picking him up from school. She said that she had never had any contact with J. D. She testified that she was unaware of the services offered by the Cave City School District but that school districts are expected to have the same testing capabilities. She said that A. D. had been doing much better since moving to Viola and that he seemed to be happy. • Erline Divelbiss, a dyslexia interventionist at the Viola School District, testified that she worked with A. D. four days a week. She stated that A. D. 's grades had improved since coming to the Viola School District. She said that, without the one-on-one help A. D. was receiving at Viola, he would not have made as much improvement as he has. She said that she would have concerns about A. D. regressing if he were moved to a different school and did not get such help. Divelbiss testified that she did not know of any school districts that did not offer the one-on-one help A. D. needed but that A. D. had been receiving only speech therapy at the Cave City School District. She stated that Nicole was "very cooperative" and "very compliant" with anything that needed to be done. Divelbiss had never met J. D. but had spoken with him once when M. D. was sick at school.

Killingsworth v. Dittmar, 2018 Ark. App. 294 (5/9/2018) • Nicole testified that she and J. D. divorced because he had been cheating on her with his current wife for the last two years of their marriage. She said that she and Robby had gotten engaged in December 2015. She stated that after losing her job at WRMC in February 2016, she and the children moved in with Robby in Viola in March 2016. She said that, although she had violated the order about not exposing the children to people with whom she is romantically involved, she thought that J. D. had done the same with his current wife. She testified that in June 2016 Robby got divorced after twenty years of marriage; that she and Robby married on September 3, 2016; and that they are expecting a child on August 3, 2017. • Nicole testified that she is now a paraprofessional at the Viola School District and that she provides one-on-one care for a disabled boy. She said that she had gotten the job a week after losing her job at WRMC. She conceded that she had not applied for any jobs in Batesville, Cave City, or Ash Flat. She stated that at her previous job, she had worked ten-hour shifts on Fridays, Saturdays, and Sundays and that she now works Monday through Friday and has time off whenever the school district is not in session. She said that she is now able to spend quality time with her boys over the weekend and that she currently does not get to take them to movies or birthday parties because she does not have them on weekends. She said that if she does not have the boys some weekends, she is concerned that they may not be able to spend time with the new baby.

Killingsworth v. Dittmar, 2018 Ark. App. 294 (5/9/2018) • Nicole said that ten-year-old M. D. and eight-year-old A. D. started school in Viola the week after spring break. She said that J. D. did not learn the children would be attending the Viola School District until the weekend that they moved from Cave City. She said that at the Cave City School District, M. D. had been doing well academically but had been "having a hard time emotionally" and that he had cried when she dropped him off at school. She said that A. D. had Cs, Ds, mostly Fs, and maybe a B while attending the Cave City School District. She said that she thought A. D. required extra help but that the Cave City School District had not made the changes she requested and had even taken him out of occupational therapy and reading programs. She said that she had spoken with J. D. about A. D. 's needing extra help at school but that J. D. had refused to go to the school to speak with the teachers about it and had said that there was nothing wrong with his child. Nicole stated that she had A. D. tested at Miracle Kids in Jonesboro and learned that he has characteristics for dyslexia and ADHD. • Nicole testified that the children are "doing great" at the Viola School District. She said that J. D. is "a good dad" and was involved "sports-wise at school. " She said that she was afraid that, if J. D. had the children through the week, they would not receive the same type of academic attention that they are currently receiving. Nicole stated that Robby is a "wonderful stepdad, " helps the boys with their homework, and had taken them hunting. She said that Robby was the first to mention that A. D. might be dyslexic.

Killingsworth v. Dittmar, 2018 Ark. App. 294 (5/9/2018) • Robby testified that he had lived in Viola most of his life. He said that he had been an insurance adjuster and had traveled for his job but that he is now unemployed after having had a bad car wreck in 2012. He said that he currently draws workers'-compensation benefits and will apply for disability. He said that he met Nicole around Thanksgiving in 2015. He said that they became engaged and decided that they wanted children together so Nicole had gotten "her tubes reversed. " • He said that, after having two weeks off for the surgery, Nicole lost her job at WRMC. He said that he helps the children with their homework, cooks, gets them up and ready for school in the mornings, and takes them to meet the school bus. He said that early on in his relationship with Nicole, A. D. had drawn him a picture and written his (Robby's) name on it. Robby stated that he told Nicole that he thought A. D. might be dyslexic like him. He said that, although he had helped raise his ex-wife's children, he did not have the bond with them that he has with M. D. and A. D. • M. D. testified that he likes the Viola School District. He said that he likes it better than the Cave City School District because Cave City has a football team, he does not like football, and his dad wants him to play football. M. D. testified that he does not like having to get up early while at his father's home. He explained that they must leave for school in Viola at 6: 45 a. m. M. D. said that he would like to live with his mom in Viola and spend some weekends with her so that they could go on vacations. He testified that he likes his stepparents but that his dad and stepmother smoke and fight. • J. D. testified that he began seeing his wife, Stephanie, in October 2015 and denied having had an affair or sexual relations with her prior to his divorce from Nicole. He said that they were married in April 2016 and that she moved in with him in May 2016. He stated that she did not spend the night with him when his children were present. He said that his wife's children are friends with M. D. and A. D. and that they play together. • J. D. testified that he has worked as a master plumber for twelve years and that he does not work on Fridays or on weekends. He agreed that it was fair for Nicole to have the children on some weekends considering her new schedule. He stated, however, that he wanted his children back at the Cave City School District because they had grown up and have family and friends there. He stated that he volunteers as a coach for the Cave City High School Booster Club. He said that M. D. plays baseball, that he had not missed any games and did not remember missing any practices, and that M. D. also plays baseball at Viola and that he had not missed any of those games. J. D. said that, while both boys are athletically inclined, if either of them did not want to play sports, it was okay. J. D. conceded that he did not understand A. D. 's symptoms before but that he does now. He stated that A. D. will get the help he needs at school if he comes back to Cave City.

Killingsworth v. Dittmar, 2018 Ark. App. 294 (5/9/2018) • J. D. said that when he agreed to joint custody, he was under the impression that he had "equal rights with the kids. " He said that he would not have signed the agreement if he had known that Nicole "could get up and move with the kids. " • Nicole said that she now lives fifty-one miles from J. D. and that it is an hour's drive from Viola to Cave City. She said that she thought that, as the primary residential custodian, she had "the say" in where the children lived and went to school. Nicole stated that her lawyer had prepared the agreement in the divorce proceedings and that J. D. had refused to sign it unless it provided for "joint custody. “ • In ruling from the bench, the trial court first determined that the language from the divorce decree "sort of muddied the waters" with the term "primary residential custodian" but that there was only some possible advantage in the time division in Nicole's favor in that she had the boys four days a week and that J. D. had them three days a week. The trial court concluded that the parties had a true joint-custody arrangement. • Mom had 3 days, Dad had 4 days

Killingsworth v. Dittmar, 2018 Ark. App. 294 (5/9/2018) • Nicole contends that the trial court erred in not applying the Hollandsworth presumption. She argues that her move to Viola from Cave City and the children's change of schools were not a material change of circumstances to justify awarding custody of the children to J. D. • In Singletary, supra, the supreme court clarified that the Hollandsworth presumption applies only in cases in which a parent has been granted sole or primary custody of a child and simply does not apply when the parents share joint custody of a child. In Cooper v. Kalkwarf, 2017 Ark. 331, 532 S. W. 3 d 58, the supreme court held that the Hollandsworth presumption should be applied only when the parent seeking to relocate is not just labeled the "primary" custodian in the divorce decree but also spends significantly more time with the child than the other parent. Here, Nicole did not spend significantly more time with the children, and because we hold that the parties shared joint custody, the trial court did not err in not applying the Hollandsworth presumption.

Killingsworth v. Dittmar, 2018 Ark. App. 294 (5/9/2018) • Relocation with a Joint-Custody Arrangement: The Singletary court recognized that the proper analysis for a court facing a change-in-custody request due to relocation of one parent when the parents have joint custody was announced in Lewellyn v. Lewellyn, 351 Ark. 346, 93 S. W. 3 d 681 (2002), and is essentially the same as a change-in-custody analysis when relocation is not involved. • Nicole argues that, even if there was a joint-custody arrangement, her moving fifty-one miles from Cave City to Viola does not constitute a material change in circumstances. She contends that there was little evidence that J. D. had ever been seriously concerned with or involved in the education of his children. Nicole points out that M. D. testified that he likes the Viola School District better and wants to live in Viola with her. She asserts that there was no material change in circumstances, and even if there was, the record clearly shows that it was in the children's best interest to remain in her custody. She contends that the trial court's order is notable for its failure to even discuss the best interest of the children. • The trial court listed multiple changes in circumstances, but Nicole does not address the findings that she violated the trial court's order by living with Robby before they were married and that she lost her job in Batesville when she decided to have her tubal ligation reversed so that she could have children with Robby. Moreover, Nicole's pleadings below indicate that she thought her move, which involved getting a new job with better hours and enrolling the children in what she considered a better school district, was a material change in circumstances. She cannot now argue that there was no material change in circumstances. A party litigant is bound by his or her pleadings and the allegations therein and cannot maintain a position inconsistent therewith.

Killingsworth v. Dittmar, 2018 Ark. App. 294 (5/9/2018) • HOLDINGS: The parties shared joint custody of their children, under Ark. Code Ann. § 9 -13 -101(a)(5); • HELD that the trial court did not clearly err in reaching its decision because the court's comments from the bench showed that it considered the children's best interest, the court noted that the reason for the mother's relocation was so that she could foster her romantic relationship with her paramour, and noted that there was no advantage to enrolling the children at the school district where the mother then lived as both that school district and the prior school district offered comparable services and were good school systems. The trial court further ruled that it was in the children's best interest that the parents continue to divide their time with the children as nearly equal as possible.

Major v. Penney, 2018 Ark. App. 291 (5/9/18) • April and Michael were married on March 22, 2007. The parties have two children, T. P. , born November 1, 2006, and P. P. , born July 9, 2008. The parties were divorced by an order of the Faulkner County Circuit Court on March 19, 2010. The order incorporated a written custody, support, and property-settlement agreement, which contained the following: The parties shall have joint custody with Wife retaining primary custody of the parties' minor children, subject to Husband's visitation privileges. Both parties are in the military and will be deployed in 2010 and/or 2011. When the residential parent is away for extended time, the other parent will be the primary caregiver. If for some reason the other parent cannot provide the childcare, then care shall be the responsibility of Barbara Penney, paternal grandmother or Lori Scroggins, maternal grandmother.

Major v. Penney, 2018 Ark. App. 291 (5/9/18) • It was not clear error to find a material change in circumstances warranting a change in children's custody because credible testimony showed their poor school attendance, they were not in school when custody was first awarded, appellant mother did not communicate well with a former babysitter she placed the children with or notify appellee father of the placement, the mother's alcohol use was a problem, the children's home was dirty, and she had undetermined relationships with two men; • It was not clear error to find a change of custody was in the children's best interest because the father was more stable, the mother moved the children too often, the father had relatives available to help with child care, while the mother relied on transient friends, and she had left the children with a person who was not a blood relative without notifying the father. • (Dad found out via Facebook while deployed who was keeping the kids and Maternal grandmother testified against Mom)

Chism v. Chism, 2018 Ark. App. 310 (5/16/18) • Wife put her income in her own account that Husband knew of during the marriage and didn’t spend it on household. Trial Court gave him a judgment for ½ of those funds. • REVERSED: There was absolutely no evidence presented, nor did Jim even argue, that Evelyn concealed or disposed of her income in an attempt to defraud him, and the circuit court made no such finding. Neither party was able to say how much, if any, money remained in the Regions account at the time of trial. The circuit court had already equally divided this account based on the testimony as to the balance at the time of separation. Given the lack of evidence of any intent by Evelyn to defraud Jim, the circuit court clearly erred in awarding Jim one-half of Evelyn's earnings and retirement income. • Arkansas law does not require parties to a divorce to account for every sum spent during a marriage. (THANK GOODNESS!!) • Our courts have held that a spouse has the right to transfer his or her property, with or without consideration, as long as the spouse does so in good faith and without the intent of defrauding the other spouse. A spouse is not entitled to be reimbursed in a divorce proceeding for every nonconsensual transfer of marital funds made by the other spouse in the absence of proof of an intent to defraud.

Chism v. Chism, 2018 Ark. App. 310 (5/16/18) • Wife bugged her husband a lot for him to add her to some premarital land. Husband did. At the divorce, he sought to set aside these conveyances, arguing that Evelyn had exerted undue influence over him. • The circuit court found that although there was much testimony given by [Jim] as to the actions of [Evelyn] and how she constantly brought the matter of these lands and minerals up for discussion, the court is not convinced that the influence exerted by [Evelyn] was sufficient to show that [Evelyn] occupied such a superior position of dominance or advantage as would imply a dominating influence over [Jim]. Therefore, the court refuses to set aside the conveyances in these exhibits and finds that they shall stand. • In his brief, Jim discusses what he contends are examples of Evelyn's exercise of undue influence over him. At trial, he introduced evidence attempting to show that he was susceptible to such influence because he suffered from cancer and other health problems. Evelyn presented testimony from herself and her children that Jim was the dominant figure in the relationship and that Jim made all the financial decisions for the couple. • No error in refusing to set aside the conveyances.

Chism v. Chism, 2018 Ark. App. 310 (5/16/18) • Y’all the son was third partied in the case…… • Trial court awarded each parent a judgment against their son for $97, 500. 00 --- REVERSED • Neither Jim nor Evelyn asked the court to enforce the oral agreement. To the contrary, Jim's counsel clearly acknowledged that Jim was not requesting such relief and stated that the court could not grant such relief because of the statute of frauds. The court did not make a finding as to the statute of frauds, but the specific five acres involved are not in any way identified and no means of identification are furnished, as required by the statute. Thus, the circuit court erred in granting judgment for the unpaid purchase price because to do so is to enforce a contract otherwise barred by the statute of frauds. • BUT judgment against the son for unpaid car loan payments was affirmed. Son got a loan from Mom and Dad to buy a car. The loan was 25 K. Son and Mom claim that the loan was forgiven and Mom forgave the loan on behalf of Dad and Mom. Dad demanded to be paid. • Judgment of 25 K to be split between Mom and Dad affirmed. • P. S. Remind me to not go to Thanksgiving at their house this year……

Morgan v. Morgan, 2018 Ark. App. 316 (5/16/18) • GENERAL RULE is that a court cannot modify a parties' contract that is incorporated into the decree. However, a circuit court always retains jurisdiction over child support as a matter of public policy, and no matter what an independent contract states, either party has the right to request modification of a child-support award. • That said, a party seeking modification has the burden of showing a change in circumstances sufficient to warrant the modification, and there is a presumption that the circuit court correctly fixed the proper amount in the original divorce decree. • Ark. Code Ann. § 9 -14 -107(c) specifically states that a material change of circumstances is found to exist when there is an inconsistency between the existing support award and the amount of support that results from application of the family-support chart, and no reasons are given to rebut the presumption that the guideline amount was correct. • As a result of § 9 -14 -107(c), parties cannot with any security enter into agreements regarding child support that vary by even a small amount from the family-support chart.

Morgan v. Morgan, 2018 Ark. App. 316 (5/16/18) Basically Decree did not state payor’s income as required; they just picked an amount to agree upon; and Dad agreed to pay child care. Kids were no longer in childcare since they were school age at the time of filing modification motion. Much of Brian's brief on appeal focuses on his argument that Kacie was time-barred from complaining that the decree of divorce that set child support failed to comply with Administrative Order No. 10. He argues that because she failed to appeal from the decree or seek timely relief under Arkansas Rule of Civil Procedure 60, the decree could not be modified under the statute for this reason under the doctrines of waiver or res judicata. Brian is mistaken, and his arguments have already been rejected in Stevenson v. Stevenson, 2011 Ark. App. 552, and Alfano v. Alfano, 77 Ark. App. 62, 72 S. W. 3 d 104 (2002) Income tax refunds were income for purposes of child support. Brian additionally admitted in his posthearing motion that there was "a direct correlation in the increase in refund attributed to the benefit of claiming a child as a dependent for tax purposes. " As we already noted above, the definition of income for child support purposes is "intentionally broad and designed to encompass the widest range of sources consistent with this State's policy to interpret 'income' broadly for the benefit of the child. " Ford v. Ford, 347 Ark. 485, 495, 65 S. W. 3 d 432, 439 (2002); see also Ark. Sup. Ct. Admin. Order No. 10(II)(a)(4). To that end our supreme court has previously recognized nonperiodic monetary judgments, monetary gifts, certificates of deposit, retirement payments, and gambling winnings as income for purposes of determining child support. See, e. g. , Evans v. Tillery, 361 Ark. 63, 204 S. W. 3 d 547 (2005); Ford, supra; Mc. Whorter v. Mc. Whorter, 346 Ark. 475, 58 S. W. 3 d 840 (2001). Thus, under the broad definition of income and under these specific facts, we cannot say that the circuit court's findings constituted reversible error.

Lauren Hoover La. Cerra, Dickson, Hoover, & Rogers, PLLC 212 Center Street, 2 nd Floor Little Rock, AR 72201 www. ldhrlaw. com LACERRA, DICKSON, HOOVER, & ROGERS PLLC