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ARKANSAS COURT OF APPEALS DIVISION III No. CV-14-21

Opinion Delivered May 28, 2014

APPEAL FROM THE PULASKI BRITNEY WYATT COUNTY CIRCUIT COURT, APPELLANT FOURTEENTH DIVISION [NO. DR-2008-2258] V. HONORABLE VANN SMITH, JUDGE BRANDON DENT APPELLEE AFFIRMED

RHONDA K. WOOD, Judge

Britney Wyatt appeals the decision of the circuit court denying her motion to

change custody, granting appellee Brandon Dent’s motion to relocate, and modifying her

visitation with the parties’ minor child. Wyatt asserts that the court erred in not finding a

material change of circumstance existed warranting a change of custody. She also asserts

that the court erred in not making a complete best-interest finding by fully considering all

of the Hollandsworth factors in the decision to allow Dent to relocate the parties’ minor

child out of state. We find no error and affirm.

Dent, the custodial parent, filed a motion to modify visitation as well as an

amended motion seeking leave of the court to relocate with the parties’ minor child as a

result of his new wife obtaining employment out of state. Wyatt filed a competing

motion to change custody. Following a hearing, the circuit court ruled in favor of Dent. Cite as

Wyatt contends the court erred in denying her motion to change custody. We

review child-custody cases de novo, and we will not reverse a circuit court’s findings

unless they are clearly erroneous. Taylor v. Taylor,

,

(2003).

Because the question of whether the court’s findings are clearly erroneous turns largely on

the credibility of the witnesses, we give special deference to the superior position of the

circuit court to evaluate the witnesses, their testimony, and the child’s best interest. Sharp

v. Keeler,

,

(2007).

We have repeatedly held that the party seeking modification must first demonstrate

that a material change in circumstances affecting the best interest of the child has occurred.

Byrd v. Vanderpool,

,

(2009). Wyatt, by her own

admission, has experienced a tumultuous life and has struggled with providing a stable

environment for the parties’ minor child. At the hearing, she cited recent improvements

in her situation that she felt warranted a change of custody back to her. She moved back

to Arkansas to be closer to her son, she was active in his education and activities, and she

was in more stable relationships with both a romantic partner and her mother.

Her argument on appeal is that these changes in her life coupled with Dent’s

relocation amount to a material change in circumstances warranting a change of custody.

We do not agree and affirm the circuit court. Our supreme court has been clear that

relocation is not a change in circumstances warranting a change in child custody nor are

circumstances created by the party seeking the modification. See Hollandsworth v.

Knyzewski,

,

(2003); Brown v. Brown,

,

.

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Next, Wyatt contends that Dent failed to demonstrate, and the circuit court failed

to appropriately find, that it was in the best interest of the child for Dent to relocate to

Virginia. Our supreme court has set forth a presumption in favor of relocation for a

custodial parent with primary custody, and the noncustodial parent bears the burden of

rebutting this presumption. Hollandsworth v.

In Hollandsworth, the court

explained:

The polestar in making a relocation determination is the best interest of the child, and the court should take into consideration the following matters: (1) the reason for the relocation; (2) the educational, health, and leisure opportunities available in the location in which the custodial parent and children will relocate; (3) visitation and communication schedule for the noncustodial parent; (4) the effect of the move on the extended family relationships in the location in which the custodial parent and children will relocate, as well as Arkansas; and, (5) preference of the child, including the age, maturity, and the reasons given by the child as to his or her preference.

, 109 S.W.3d at 663–64.

On appeal, Wyatt incorrectly attempts to shift the burden to Dent to prove that it

is in the child’s best interest to relocate. She also claims that the circuit court erred by not

analyzing each factor set forth in Hollandsworth. However, the circuit court stated in its

order that it considered the best interest of the parties’ minor child and the factors set forth

in Hollandsworth, and that based on this, Wyatt failed to rebut the presumption in favor of

relocation. If Wyatt desired an explanation of how the court analyzed each factor, she

should have requested the court to make specific findings of fact. The court applied the

appropriate best-interest standard, considered the factors, and made findings that, based on

the record, were not clearly erroneous. We affirm.

Affirmed.

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PITTMAN and HIXSON, JJ., agree.

Mark Alan Jesse, for appellant.

Ballard & Ballard, P.A., by: Andrew D. Ballard, for appellee.

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