Opinion
No. CA11-1234
05-23-2012
JOE VANDER HEYDEN APPELLANT v. CINDY VANDER HEYDEN APPELLEE
APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FOURTEENTH DIVISION
[NO. 60 DR 2011-2016]
HONORABLE VANN SMITH, JUDGE
AFFIRMED
ROBERT J. GLADWIN , Judge
Appellant, Joe Vander Heyden, appeals the divorce decree filed by the Pulaski County Circuit Court on October 18, 2011, that awarded appellee, Cindy Vander Heyden, custody of the parties' minor children and granted her request to relocate to Canada with the children. Appellant argues that the trial court erred in denying his request for custody of the parties' children and in allowing appellee to relocate with the children to Canada. We affirm.
In a prior case, appellee filed for separate maintenance; appellant filed and then withdrew his counterclaim for divorce; and the trial court entered a decree of separate maintenance on March 5, 2010. That decree awarded joint legal custody of the children to the parties and awarded appellee primary physical custody of the children and appellant liberal visitation. On April 27, 2011, appellee filed for divorce, asking the trial court for permission to relocate with the children to Canada, and she filed an amended complaint on May 18, 2011.
Appellant counterclaimed for divorce and asked for custody on June 8, 2011, and appellee filed an answer on June 13, 2011. Appellee petitioned for an attorney ad litem, and one was appointed on August 22, 2011. On September 15, 2011, the hearing began, and the trial court entered a decree of divorce on October 18, 2011. Appellant filed a motion for reconsideration and motion to stay the custody and relocation decisions on October 28, 2011. A hearing on that motion was held on November 4, 2011, after which the trial court denied appellant's motion. On October 28, 2011, appellant filed his notice of appeal, and an amended notice of appeal was filed on November 10, 2011. On December 14, 2011, appellant filed his motion for an expedited order to stay the order granting appellee custody and permission to relocate with the minor children pending appeal. This court denied appellant's motion on January 11, 2012.
On appeal, in child custody matters, this court considers the evidence de novo and does not reverse unless the trial court's findings of fact are clearly erroneous. Chaffin v. Chaffin, 2011 Ark. App. 293. A finding is clearly erroneous when, although there is evidence to support it, the court is left with a definite and firm conviction that the trial court made a mistake. Id. Due deference is given to the trial court's superior position to judge the credibility of the witnesses. Id.
Appellate courts generally impose more stringent standards for modification in custody proceedings than for initial determinations of custody in order to promote stability and continuity in the life of the child. See Alphin v. Alphin, 364 Ark. 332, 219 S.W.3d 160 (2005). The party seeking modification of the custody order has the burden of showing a material change in circumstances. Id. Appellate courts have held that there is no other case in which the superior position, ability, and opportunity of the trial judge to observe the parties carries a greater weight than one involving the custody of minor children. Id. The best interest of the child is the polestar in every child-custody case; all other considerations are secondary. Ford v. Ford, 347 Ark. 485, 65 S.W.3d 432 (2002).
I. Denial of Appellant's Request for Change of Custody
A. Accumulation of Credit-Card Debt
Appellant contends that a material change of circumstances occurred following the entry of the separate-maintenance decree that granted appellee primary physical custody of the children. Evidence was presented that appellee amassed $28,500 in credit-card debt between August 2010 and August 2011, despite having her living expenses covered by appellant and receiving $2000 per month in support. The trial court received an analysis of the credit-card spending by appellee for expenditures that included, but were not limited to, travel, dining out, and entertainment. Appellant maintains that the evidence indicated that appellee is unable to manage her budget to the extent that ensured stability in her planned new home in Canada.
At the time of trial, the children resided with her in a private home, attended private schooling, received extra educational assistance, and were involved in extracurricular activities. No witness testified that the home in which appellee resided with the children was anything but well-appointed, clean, and well maintained. Appellant presented no evidence that the utilities were shut off, that the mortgage was delinquent, or that appellee could not adequately provide the children with clothing, food, and other necessities.
We note that appellee was unable to seek employment because of her immigration status, testimony verified by Milton Dejesus, an immigration attorney. Thus, appellee was entirely dependent on her alimony and child support to maintain her and the children's standard of living under the decree of separate maintenance.
The trial court mentioned appellee's debt in the decree of divorce; however, the trial court found that it did not constitute a material change of circumstances. Appellant fails to cite any case law wherein an appellate court has found that credit-card debt incurred by the custodial parent is satisfactory proof sufficient to support a material change in circumstances. We hold that the trial court did not err in finding that appellant failed to show a material change of circumstances in her ability to manage her finances since the entry of the decree of separate maintenance. Accordingly, we affirm on this point.
B. Educational Needs
Additionally, appellant claims that there was a material change in circumstances related to A.V.'s education. The trial court included detailed findings concerning the children's education, noting that the parties' younger child, AD.V., had above-average grades in school, but that the older child, A.V., had been diagnosed with a learning disability and attended a special program within the private school he attended.
Appellant argues that appellee has failed to properly ensure that A.V. does well in school. Testimony indicated that appellant had been the lead parent in assisting A.V. in his educational struggles. The children themselves acknowledged this, with AD.V. specifically stating that appellee does not help with homework, and A.V. saying that it is his father who is the "homework parent." Evidence was presented that A.V.'s grades began to slip after appellee took charge of the homework situation. Appellant claims that appellee was unable to manage schoolwork without his accustomed help, and as a result, A.V.'s education did not prosper. He claims that this evidence suggests that A.V. will not be able to perform well under appellee's tutelage, especially in a new and possibly inferior educational system as related to his specific needs.
Appellant's argument is not supported by the evidence before us. A.V.'s grades were submitted to the trial court and indicated that he was making suitable grades ranging from As and Bs to an occasional C. At the time of the final hearing, A.V.'s overall grade-point average was a 3.467. The trial judge thoroughly detailed the educational concerns, the testimony, and the rationale for not finding a material change in circumstances based on this issue. We hold that the trial court was correct in denying appellant's petition to change custody on these grounds and affirm on this point as well.
II. Relocation with the Children to Canada
Appellant next argues that the trial court erred in allowing appellee to relocate with the children to Canada. Prior to 2003, Arkansas appellate courts reviewed relocation cases according to Staab v. Hurst, 44 Ark. App. 128, 868 S.W.2d 517 (1994), which required a relocating parent to show factors such as "good reason" for the relocation and to prove that the relocation was in the "best interests of the children." In June 2003, the Arkansas Supreme Court overturned a trial court's use of the Staab criteria in its denial of the right to relocate and handed down Hollandsworth v. Knyzewski, 353 Ark. 470, 109 S.W.3d 653 (2003):
[W]e hold that relocation [of a primary custodian and his or her children] alone is not a material change in circumstance. . . . The custodial parent no longer has the obligation to prove a real advantage to herself or himself and to the children in relocating.Id. at 485, 109 S.W.3d at 663 (emphasis added). Our supreme court established criteria to enable trial courts to assess the permissibility of a move with minor children from the area in which the parties were divorced. These factors include (1) the reason for relocating; (2) the educational, health, and leisure opportunities available in the new location; (3) the effect of the move on the visitation and communication schedule of the noncustodial parent; (4) the effect of the move on extended-family relationships in Arkansas and the new location; (5) the children's preferences, considering the ages and maturity levels of the children and the reasons given for the preference. Id.
Appellant notes that the Hollandsworth analysis has been fine-tuned by Arkansas appellate courts since it was handed down. In Stacks v. Stacks, 2009 Ark. App. 862, _ S.W.3d _, this court reiterated that the Hollandsworth ruling does not obviate the fact that the primary consideration for all child-custody cases is the welfare and best interest of the minor children involved, and the appellate courts have repeatedly held that all other considerations are secondary. See Dansby v. Dansby, 87 Ark. App. 156, 189 S.W.3d 473 (2004).
Although appellant argues that the Hollandsworth factors weigh in favor of the children staying with him in Arkansas, the trial court addressed each factor in determining that the move should be allowed. The question of whether the trial court's findings are clearly erroneous turns largely on the credibility of the witnesses, and the appellate court gives special deference to the superior position of the trial court to evaluate the witnesses, their testimony, and the children's best interest. Chaffin, supra. Considering the Hollandsworth factors and the trial court's thorough consideration of each of those factors in its 120-point, seventeen-page decree, we hold that appellant has failed to meet his burden to prove that the trial court erred in allowing the children to relocate with appellee.
Affirmed.
ROBBINS and GRUBER, JJ., agree.