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Reason: I attest to the accuracy and integrity of this ARKANSAS COURT OF APPEALS document Date: 2021-07-15 10:14:18 Foxit PhantomPDF Version: DIVISION III 9.7.5 No. CV-19-843

JASON SHELL Opinion Delivered: October 7, 2020 APPELLANT APPEAL FROM THE IZARD COUNTY CIRCUIT COURT [NO. 33DR-17-75] V. HONORABLE DON MCSPADDEN, JUDGE KRISTI (SHELL) TWITTY APPELLEE AFFIRMED

RAYMOND R. ABRAMSON, Judge

Appellant Jason Shell appeals from an Izard County Circuit Court decree allowing

Shell’s ex-wife, Kristi Twitty, to relocate with the parties’ minor child, W.S. On appeal,

Shell argues that the circuit court erred in not applying the Singletary factors1 and in finding

that there had been a change in circumstances that warranted a modification of the parties’

custody and visitation agreement. For the following reasons, we affirm.

The parties were married on June 10, 2015, and one son, W.S., was born of the

marriage. They were divorced on August 4, 2017. The divorce decree incorporated a

settlement agreement and an agreed parenting plan entered into by the parties. The agreed

parenting plan provided that Twitty and Shell would “share legal custody” of W.S., but that

Twitty would have “primary physical custody.” The agreed parenting plan also provided

1 See Singletary v. Singletary,

,

. that Shell would have visitation with W.S. every afternoon after school until 7:30 p.m. and

every other weekend. The circuit court found that the schedule set out in the agreed

parenting plan resulted in Twitty having W.S. 75 percent of the time and Shell having the

child 25 percent of the time.

On February 2, 2018, Twitty filed a petition for modification of the parenting plan

wherein she sought the court’s permission to relocate in order to accept a higher paying

position as a nurse. Shell filed an answer to Twitty’s petition and a counterclaim to seek full

custody of W.S. On June 6, 2019, a hearing was held, and at the conclusion, the circuit

court ruled from the bench, finding that Twitty was the custodial parent, and she had the

right to relocate. The circuit court also found that there had been a material change in

circumstances and that it was in the best interest of W.S. to remain in the custody of Twitty,

subject to visitation with Shell, which was modified to accommodate Twitty’s relocation to

Greene County.

On July 15, 2019, the circuit court entered its decree consistent with its ruling from

the bench. This timely appeal followed.

In determining whether a parent may relocate with a minor child, a circuit court

must generally look to the principles set forth in Hollandsworth v. Knyzewski,

,

(2003). In that case, our supreme court announced a presumption in favor

of relocation for custodial parents with sole or primary custody, with the noncustodial parent

having the burden to rebut this presumption.

,

. The

Hollandsworth presumption should be applied only when the parent seeking to relocate is

not only labeled the “primary” custodian in the divorce decree but also spends significantly

2 more time with the child than the other parent. Id.; Tidwell v. Rosenbaum,

,

.

The factors for a circuit court to consider when determining whether to grant a

petition to relocate 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; and (5) the child’s

preferences, considering the age and maturity level of the child and the reasons given for

the preference.

Even when these factors are considered, the polestar remains whether it

has been established by a preponderance of the evidence that a proposed relocation would

serve the child’s best interest.

A presumption exists in favor of relocation for custodial parents with primary

custody, with the burden being on the noncustodial parent to rebut the presumption;

therefore, a custodial parent is not required to prove a real advantage to herself and to the

children in relocating. Hollandsworth,

,

. This presumption is

not applicable when the parents share joint custody of a child. Singletary,

,

; see also Cooper v. Kalkwarf,

,

(presumption

favoring relocation not applicable when the parents shared nearly equal time with the

children).

Here, the circuit court clearly found that Twitty was the primary custodial parent––

its finding was based not only on the agreed parenting plan but also upon a factual finding

that W.S. was in his mother’s custody approximately 75 percent of the time. As such, the

3 circuit court properly applied the presumption in favor of Twitty’s relocation on the basis

of

Accordingly, we hold that Shell’s first appellate argument that

Singletary should have been applied rather than Hollandsworth has no merit.

In granting Twitty’s relocation request, the circuit court also found that there had

been a material change in circumstances and that relocation was in W.S.’s best interest. In

order to modify a custody decree, the circuit court must apply a two-step process: first, the

court must determine whether a material change in circumstances has occurred since the

divorce decree was entered; second, if the court finds that there has been a material change

in circumstances, the court must determine whether a change of custody is in the child’s

best interest. See, e.g., Grindstaff v. Strickland,

,

.

In the instant case, the circuit court specifically found that there had been material

changes in circumstances since the decree of divorce was entered, including the failure of

Shell to communicate with Twitty, which constitutes a failure to coparent, and Shell’s

attempts to control Twitty, which included an incident in the presence of W.S. The court

further observed that Shell refuses to talk to Twitty about W.S. at times.

Due deference is given to the superior position of the circuit court to view and judge

the credibility of the witnesses, and in cases involving child custody, the deference to the

circuit court is even greater because a heavier burden is placed on the circuit court to utilize

to the fullest extent its powers of perception in evaluating the witnesses, their testimony,

and the best interest of the child. Alphin v. Alphin,

,

(2005). The Arkansas Supreme Court has stated time and time again, “[W]e know of no

cases in which the superior position, ability, and opportunity of the trial court to observe

4 the parties carry as great a weight as those involving children.” Carver v. May,

,

(2003).

Here, the circuit court made several specific factual findings to support its decision

that W.S.’s best interest would be served by allowing him to relocate with his mother. In

its order, the court noted that both parents are good people who love W.S. but that it has

been difficult, at times, for them to get along. The circuit court took note of the better

employment opportunities for Twitty in Greene County and that W.S. has a sibling who

lives with Twitty.

Our court will not substitute its judgment for that of the circuit court. See Evans v.

McKinney,

,

. Further, after giving due

deference to the circuit court’s observations and credibility determinations, we conclude

that there was no clear error in the court’s decision to allow W.S. to relocate with Twitty.

Affirmed.

SWITZER and BROWN, JJ., agree.

Ethredge & Copeland, P.A., by: Johnnie A. Copeland, for appellant.

Murphy, Thompson, Arnold, Skinner & Castleberry, by: A.F. “Tom” Thompson III and

Kenneth P. “Casey” Castleberry, for appellee.

5