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Elizabeth Perry ARKANSAS COURT OF APPEALS I attest to the accuracy and DIVISION I integrity of this document 2023.06.22 12:05:53 -05'00' No. CV-20-235 2023.001.20174 Opinion Delivered: February 3, 2021 JESSICA CHANDLER APPELLANT APPEAL FROM THE PULASKI V. COUNTY CIRCUIT COURT, SEVENTEENTH DIVISION SHAE CHANDLER [NO. 60DR-17-1477] APPELLEE HONORABLE MACKIE M. PIERCE, JUDGE

AFFIRMED IN PART; DISMISSED IN PART

BART F. VIRDEN, Judge

After approximately ten years of marriage, Jessica and Shae Chandler were divorced

by order of the Pulaski County Circuit Court entered August 14, 2019. Jessica appeals the

circuit court’s decisions regarding custody of their minor children, EC (born 2009) and VC

(born 2012), the parties’ responsibility for the cost of private education for VC, the allotment

of all interest in the marital business to Shae, spousal support, and the amount of the

attorney’s-fees award. We affirm in part and dismiss in part.

I. Relevant Facts

On April 14, 2017, Jessica filed a complaint for divorce requesting spousal support,

child support, and primary custody of EC and VC subject to Shae’s visitation. 1 Shae

1 Jessica did not plead grounds in her complaint; however, the court allowed her to orally amend her complaint later. Shae did not object, and it is not an issue on appeal. counterclaimed for divorce requesting primary custody and child support. Also, Shae

contended that Jessica removed $2,250 from one of his accounts without his consent and

sought reimbursement.

Jessica submitted an affidavit of financial means, setting forth that she receives $400

a month in dividends from a Stephens account; $631 in temporary child support; $250 in

“Stephens Withdrawals”; and she owns $180,000 in stocks, bonds or mutual funds. The

affidavit provides that her monthly expenses total $10,472.61 and that she has $100,000 in

student-loan debt from attending one year of medical school. The affidavit provides that

school expenses for both children are $23,469.68 a year. The children’s monthly medical

expenses are $2,618.30. In his affidavit of financial means, Shae listed his yearly net income

as $35,902, and he stated that he had $4,000 in a retirement account. He stated that his

monthly expenses are $2,323 and that he is $46,004 in debt.

On February 12 and May 22, 2019, the court held hearings on the matter. Originally,

the second hearing was scheduled for May 9. Shae, his counsel, and his witnesses appeared

before the court; however, Jessica and her witnesses did not. Counsel for Jessica explained

that she had a panic attack that morning and could not attend the hearing. The court

rescheduled the hearing for May 22. The testimony offered at both the February and May

hearings involves the same subject matter, and all relevant testimony is summarized here.

Jessica testified that since the separation, she had used her inheritance to pay for expenses,

and she had cashed out her money-market account. Before the parties separated, Jessica was

the secretary and treasurer for the marital business, Modern Lawns. Jessica testified that

between 2014 and 2016, she used around $15,000 from her separate accounts to pay the

2 bills for, and invest in, Modern Lawns, describing those examples as a “snapshot” of the

money she had invested in the business. Jessica estimated that Modern Lawns’ value is

around $250,000 because she estimated that the equipment is worth that amount, though

she does not know what the price of the equipment was at the time of purchase. Before the

separation, Jessica used a Capital One card for household and business expenses, and after

the separation, she used it for household expenses only. Jessica explained that Shae funded

the Capital One card and occasionally cut off her use of the card. Jessica stated that her

mother died in 2006 and left her the Stephens account. The parties agreed that the family’s

home on “H” Street was purchased before she and Shae married, is her sole property, and

she carries no debt on the house. Jessica pays $300 each month for homeowner’s insurance

and maintenance, and she testified that the house needs repairs, particularly in the kitchen,

and that the condition of the kitchen adds to the expense of dining out. Jessica testified that

she made an insurance claim on the kitchen damage and, in May 2018, received a check for

$13,000.

Shae testified that he started the Modern Lawns business in 1989 or 1990 and built

his business by word of mouth. He stated that he did not have a high school diploma or

GED and that Jessica has a degree in reticular biology and attended one year of medical

school. Shae testified that he had a significant amount of debt, including tax debt. Shae

agreed with Jessica’s statement that before the parties separated, she used money from her

Stephens account for the business. He also explained that Jessica was cut off from using the

Capital One card when she went over the limit and that she used the card to buy cigarettes,

drinks, and other nonhousehold items. Shae requested that the court award joint custody,

3 with each parent having the children for a week at a time.

Wyatt Reid Smith testified that he had been Shae’s accountant since 2017 when the

parties separated. He explained that when he took over the accounting for Modern Lawns,

“they were three or four years behind on tax returns, cash activity had not been included,

credit card activity hadn’t been included and payroll hadn’t been recorded or paid.” Smith

stated that Modern Lawns’ total income for 2018 was $299,723. After advertising, vehicle

maintenance, fuel expenses, computer-software subscription, insurance for vehicles,

workers’ compensation, general liability, health insurance, client entertainment expenses,

parts and materials, and payroll were deducted, the net income for Modern Lawns was

$32,922. Smith explained that a generous estimate of the expenses, around $5,000, were

attributable to Shae’s personal expenses. Smith estimated that the business’s assets were

worth between $32,000 and $35,000, and the credit card debt was $38,000. Smith explained

that Shae had just lost a big client who paid a flat monthly fee of $2,400, or about $30,000

a year. Smith opined that “Modern Lawns is in a pretty dire situation, at the moment, given

the last year” and that he estimated the value of the business as “zero.” At the February

hearing, Smith testified that it was a slow time for the business and that Shae had not paid

himself his usual income of $554.10 a week.

The parties offered testimony regarding VC’s educational needs. Jessica testified that

both children attend Holy Souls School, and she recently decided to transfer VC to the

Hannah School, which offers specialized dyslexia intervention. Jessica contended that VC

would not receive the same level of intervention at a public school. Jessica explained that

VC had been diagnosed with severe dyslexia at the end of kindergarten, and to advance to

4 first grade, he must attend dyslexia intervention three times a week at a cost of $62 each

session. Jessica explained that EC has dysgraphia and that she benefits from private-school

education and intervention as well. Jessica stated that she and Shae agreed that if he “took

care of me, I would pay the children’s tuition.” Jessica asserted that Shae “has agreed to pay

for Holy Souls because he has already paid me half the very first time he left us. I have paid

the tuition the past year.” Jessica requested that the circuit court order Shae to pay for half

of the private-school costs for both children. Jessica expressed doubt that Shae was reporting

all Modern Lawns jobs and income, specifically recounting that she saw him working at a

big job site in April 2018 and had seen no invoices from that job; thus, Jessica stated that

she believes that Shae is able to pay for private school.

Shae’s testimony differed from Jessica’s. Shae testified that Jessica’s grandparents had

set aside money for the children’s education, and there was $208,000 in the account

according to the affidavit of financial means. Moreover, Shae testified that he had never paid

for the children’s private education, he was not financially able to do so, and he supported

the children attending public school. Shae also stated that he had no objection to VC

attending the Hannah School, but he could not pay for it.

Jessica requested primary custody, testifying that she is and always has been the

children’s primary caregiver and “knew every single in and out of their life.” She contended

that Shae primarily focused on work and that Shae “doesn’t know their schedules, their

medicines, their doctors, and when things are due.” She explained that Shae is lax in helping

the children do their homework, and he does not regularly attend school parties. According

to Jessica, Shae does not take the children’s allergies seriously or give the children their

5 allergy medicine when they are with him. Jessica testified that Shae has failed to attend Girl

Scout and Boy Scout events, including failing to pick up Girl Scout cookies and not

attending a Boy Scout camp out with VC. Jessica stated that when Shae works late, he drops

the children off at his mother’s house. Jessica contended that Shae’s relationship with EC is

strained and that EC attends counseling. She explained that Shae shows a preference for

VC. Shae exercised visitation; however, EC was uncomfortable at his house, and Shae often

brings EC back to her house. Jessica recounted several specific incidents since the separation

when Shae was very intoxicated in front of the children, including an incident a few weeks

before the trial. Jessica asserted that she and Shae do not communicate well and that Shae

eliminated the family calendar to prevent her from making appointments on his time or

during his weekends. Jessica’s father, Floyd Raney, testified that both parties are good

parents. Raney testified that Shae helped with the children before the separation and that if

Shae was not working, he was with the kids.

Shae’s testimony regarding his parenting and relationship with the children differed

from Jessica’s. Shae explained that if he did what Jessica wanted him to do then everything

was fine; otherwise, she disparaged him to the children and refused to let him see them.

Shae testified that he is a “hands on” father and that he helps them get dressed, makes

lunches, walks them to school, and plays with them after work. Shae agreed with Jessica

that when EC asks to go home, he does not make her stay with him and brings her home.

He explained, “I have difficulties with EC, and if she wants to home, I let her go home to

her mother.” Shae also testified that EC is “emotional and, in my eyes, a bit spoiled.” He

explained that when he picks EC up for weekend visitation she is “non-receptive and angry

6 and bitter” but that by the time the weekend is over, “she’s happy and in good manners,

kisses me goodbye and tells me that she loves me.” Shae stated that he was agreeable to

family counseling and willing to attend counseling till the final divorce hearing. Shae also

explained that he had, as Jessica testified, decided not to chaperone VC on a Boy Scout

event at the last minute because it had been raining for several days and was storming the

day of the camp out. As to Jessica’s testimony that he was intoxicated around the children,

Shae stated, “Other than the incidents Jessica related that occurred in 2018, there have not

been any concerns about my alcohol intake.”

The circuit court entered the divorce decree on August 14, 2019. In pertinent part,

the court awarded joint custody of the children and decided that neither party would pay

child support. The court denied Jessica’s request for spousal support. The court determined

that the children could continue in private school if Jessica chose to pay the costs and fees.

If she did not pay the expense of private education, the children would be enrolled in public

school. The court ordered the parents to cooperate, not disparage the other parent to the

children or use the children as messengers, and administer medication as directed. The court

further ordered that neither party would abuse alcohol when the children were in their care.

The parties were ordered to reimburse each other for half of any health-related expenses

that were not covered by insurance, including VC’s therapy and tutoring related to dyslexia.

The court found that Modern Lawns was jointly owned, its value was “nominal,” and that

any value going forward is attributable primarily to Shae’s labor. The court awarded Shae

sole ownership and found that Jessica was not entitled to payment for any interest. The

court found that each party was responsible for his or her attorney’s fees, except that Shae

7 could file a fee petition regarding the May 9 hearing that Jessica did not attend.

On August 29, Shae filed a petition for attorney’s fees. Shae explained that although

Jessica had participated in all preceding points of the case, she chose not to appear for the

May 9 hearing, causing him to incur additional costs and fees of $6,705. Shae stated that

Jessica claimed to have had an “anxiety issue” on the day of the hearing but did not offer

any evidence of such. On October 28, a hearing was held on the matter. Jessica argued that

the only cost accountable to her absence on May 9 is $2,700 for the expert witness, who

had to appear a second time. She also asserted that $2,000 for trial preparation was excessive

because the necessary preparation had taken place before the original hearing date. The

circuit court awarded Shae $4,000 in costs and fees, finding that Jessica “failed to appear for

the May 9, 2019 final hearing causing the Defendant to incur attorney’s fees and expert

witness costs.”

Jessica timely filed her notice of appeal from the divorce decree.

II. Discussion

A. Custody

For her first point on appeal, Jessica argues that the circuit court’s decision to grant

joint custody is erroneous because she is and has been the children’s primary caregiver.

Jessica contends that Shae is more focused on his business than the children and is in other

ways inattentive to the children’s needs and that he has an ongoing drinking problem. Also,

Jessica asserts that Shae is unable “to cooperate with regard to shared decisions in matters

affecting the children[.]” Her arguments are not persuasive.

In domestic-relations cases, our review is de novo, but we will not reverse the circuit

8 court’s findings of fact unless they are clearly erroneous. Dare v. Frost,

,

. When in the child’s best interest, custody should be awarded in such a way as

to ensure the frequent and continuing contact of the child with both parents. Cunningham

v. Cunningham,

,

, 41. In 2019, the General Assembly

amended Arkansas Code Annotated section 9-13-101 to announce that an award of joint

custody is “favored” in Arkansas. Act of Apr. 11, 2019, No. 906,

. In

Pace v. Pace,

,

, our supreme court held that “[t]his

change in the law is profound; the parties were no longer obligated to maintain a careful

balance of cooperation to stave off a judicial dissolution of a joint-custody arrangement.”

Previously, case law held that joint custody was not favored unless circumstances clearly

warrant such action. See Gray v. Gray,

,

(2006). The fact

that one parent is the primary caretaker of the child during the marriage is not in and of

itself determinative, although relevant and worthy of consideration. Black v. Black,

,

. Each child-custody determination ultimately must rest on

its own facts. Hoover v. Hoover,

,

.

Jessica disagrees with the court’s findings of fact regarding the court’s joint custody

decision. Though she testified that she was and is the primary caregiver, Shae asserts that he

is a “hands on” father, and even Jessica’s father testified that Shae is a good father who spends

his time with his kids when he was not working. Both parties testified that Shae exercises

visitation, and he has family support when his seasonal business requires him to work long

hours. The parties’ testimony about Shae’s drinking also differs. Jessica recounted multiple

instances when Shae was drunk around the children, but Shae testified that he drank around

9 his children “a couple of times in 2018 but that it had not been a problem since.” Jessica

asks this court to reweigh the conflicting evidence given at trial and find differently than the

circuit court regarding the appropriateness of joint custody; however, we find no error in

the circuit court’s determination.

Jessica’s argument that the parties cannot cooperate is also not well-taken. As for the

conflict between the parties, in a recent case, our court affirmed a joint-custody award

despite the appellant’s argument that the parties had parted in hostility with no trust between

them. Grimsley v. Drewyor,

,

. In Grimsley, we stated

that “[m]ost joint-custody situations involve some amount of disagreement.” Id. at 10,

. Accordingly, we hold that the circuit court did not clearly err in awarding

joint custody under the facts of this case in which the discord between the parties is far less

than in Grimsley.

After conducting our de novo review of the record, we are not left with a definite

and firm conviction that the court erred.

B. Cost of Private Education for VC

Jessica asserts that the circuit court erred by deciding that she should bear the full

costs of special-education services for VC. Jessica argues it is necessary to enroll VC in the

Hannah School to treat his dyslexia, and the cost of private school should be considered a

medical expense not covered by insurance. Jessica asserts that the Hannah School offers

“specialized tutoring”—an expense the court ordered the parties to split—and that VC

“would not survive in public school.” We disagree with Jessica’s interpretation of the circuit

court’s order.

10 The court clearly differentiated private-school education from medical expenses,

finding that Shae

will continue to provide health insurance for the children with the parties dividing equally any non-covered medical expense incurred, which includes but is not limited to health, vision, dental, orthodontic, mental health or therapy/tutoring related to VC’s diagnosed learning disability.

(Emphasis added.) Likewise, Jessica’s assertion that private school is the same as “specialized

tutoring” is not persuasive. The court’s order provided that the cost of VC’s therapy and

tutoring related to his dyslexia is both parties’ responsibility, and a separate expense unrelated

to private school.

Jessica further argues that the court’s finding that VC attends a specialized private

school to address his specific educational needs directly conflicts with the court’s order to

enroll VC in public school if she does not pay the tuition for this school. Our court will not

reverse the circuit court’s findings of fact unless they are clearly erroneous. See Dare v. Frost,

,

. The circuit court’s finding of fact—that VC attends private

school—does not conflict with the order to enroll VC in public school if Jessica chooses not

to continue paying for private school.

C. Interest in Business

For her third point on appeal, Jessica argues that the circuit court’s failure to award

any interest in the marital business was clearly erroneous, or if the circuit court chose to

divide the marital property unequally, it erred by not stating its reasons for doing so. Jessica

also asserts that the court erred in finding that the value of the business is “nominal.” We

disagree.

11 With respect to the division of property in a divorce case, we review the circuit

court’s findings of fact and affirm them unless they are clearly erroneous or against the

preponderance of the evidence. Gray v. Gray,

,

(2003). A finding is clearly erroneous when the reviewing court, on the entire evidence, is

left with the definite and firm conviction that a mistake has been committed. Conlee v.

Conlee,

,

. To demonstrate that the circuit court’s ruling was

erroneous, an appellant must show that the circuit court abused its discretion by making a

decision that was arbitrary or groundless. Id.

Arkansas Code Annotated 9-12-315(a)(4) (Repl. 2015) requires that the court

determine the value of the business venture and may order that the securities be distributed

to one party on condition that one-half the value of the venture in money or other property

be set aside and distributed to the other party in lieu of division. Here, the circuit court

determined that

[t]he parties jointly own a business known as Modern Lawns. [Shae] formerly worked in the business and requests that the business interest be split. [Shae] has requested that he be awarded all interest in the business. Considering the testimony and evidence offered regarding the present value of the business, the Court finds that the value, if any, is nominal and any value going forward is attributable primarily to [Shae’s] labor. As such, [Shae] is awarded sole ownership of Modern Lawns. [Jessica] is not entitled to payment for any interest in the business.

The court heard conflicting testimony regarding the value and assets of the business

and the accuracy of the account books. Jessica offered testimony that she had helped build

the business, and she believed Modern Lawns was more valuable than Smith and Shae stated;

however, Shae and his accountant testified that the business was in debt and struggling. We

give due deference to the circuit court’s superior position to determine the credibility of

12 witnesses and the weight to be given their testimony, and given the testimony, we cannot

say that the court’s findings regarding the value of the business are arbitrary or groundless.

Additionally, the court complied with the statutory requirement that it either

designate the specific property to which each party is entitled or award all interest to one

party and distribute half the value of the business in money or other property.

(a)(4). Here, the entire business interest was awarded to Shae, and the court

found that Jessica was not entitled to distribution of half the value simply because there was

none. We find no clear error in the circuit court’s findings regarding the value and

distribution of Modern Lawns.

D. Spousal Support

Jessica argues that the circuit court clearly erred when it denied her request for spousal

support. Specifically, Jessica argues that the court should have weighed other factors such as

the past standard of living, the length of the marriage, and the division of the business

property more heavily. Also, Jessica asserts that she has an additional need for alimony

because VC’s dyslexia intervention requires “special educational arrangements that cost

money. A cost that the trial court failed to require Appellee to pay half of.” We disagree.

The purpose of alimony is to rectify the economic imbalance in earning power and

standard of living of the parties to a divorce in light of the particular facts of each case. Burns

v. Burns,

,

. In fixing the amount of alimony to be

awarded, the circuit court is given great discretion, and the appellate courts will not disturb

the award on appeal unless there is an abuse of that discretion.

The primary factors to be

considered in making or changing an award of alimony are the need of one spouse and the

13 ability of the other spouse to pay.

Secondary factors to be considered by the circuit court

include (1) the financial circumstances of both parties; (2) the amount and nature of the

income, both current and anticipated, of both parties; (3) the extent and nature of the

resources and assets of both parties; and (4) the earning ability and capacity of both parties.

The amount of alimony awarded should not be reduced to a “mathematical formula”

because the need for flexibility outweighs the need for relative certainty.

Here, the court denied Jessica’s request for spousal supporting, finding that

[g]iven [Jessica’s] educational background and ability to engage in meaningful employment as well as [Shae’s] earning capacity with Modern Lawns as established by the evidence presented, the Court finds that [Jessica] does not have a need nor does [Shae] have an ability to play.

The court considered the primary factors—Jessica’s need for alimony and Shae’s

ability to pay—as well as secondary factors including the parties’ earning capacity, Jessica’s

educational background, and her ability to gain employment; thus, the circuit court did not

act thoughtlessly, improvidently, or without due consideration in deciding the matter of

spousal support. As Jessica points out, her assets are “her home and her inheritance from her

mother” as opposed to Shae’s business, which he and his accountant testified is failing. Jessica

disputes the testimony regarding the value of Modern Lawns and Shae’s financial situation;

however, as we stated above, we defer to the circuit court’s superior position to judge the

credibility of the witnesses. Trucks v. Trucks,

,

. 2 In light

2 Regarding Jessica’s argument that she bears the cost VC’s dyslexia intervention, we held above that this is not true. Though the circuit court refused to order the parents to split the cost of private school, it specifically ordered the parents to split the cost of tutoring or treatment associated with VC’s dyslexia.

14 of the broad discretion vested in the circuit court, we hold that the circuit court did not

clearly err in denying Jessica’s request for spousal support.

E. Attorney’s Fees

Jessica argues for her fifth point on appeal that the circuit court’s $4,000 award in

attorney’s fees to Shae is excessive. We cannot reach Jessica’s argument on this point.

Though her notice of appeal from the August 19 divorce decree was timely filed, she failed

to file a notice of appeal regarding the December 3 order awarding fees. An attorney-fee

order must appear in the notice of appeal if we are to have jurisdiction to review the order.

Taylor v. City of Fort Smith,

,

. This portion of Jessica’s

appeal is therefore dismissed.

Affirmed in part; dismissed in part.

ABRAMSON and HIXSON, JJ., agree.

Lea Ellen Fowler, for appellant.

LaCerra, Dickson, Hoover & Rogers, PLLC, by: Lauren White Hoover and Marjorie E.

Rogers, for appellee.

15