Deluca v. Stapleton

• Decision Date: 18 September 2002
• Docket Number: No. CA 02-144.,CA 02-144.
• Citation: Deluca v. Stapleton, 79 Ark. App. 138, 84 S.W.3d 892 (Ark. App. 2002)
• Parties: Gina DELUCA v. Bobby STAPLETON.
• Court: Arkansas Court of Appeals

84 S.W.3d 892

79 Ark. App. 138

Gina DELUCA v.Bobby STAPLETON.

No. CA 02-144.

Court of Appeals of Arkansas, Division III.

September 18, 2002.

COPYRIGHT MATERIAL OMITTED

Lyons, Emerson & Cone, P.L.C., by: Scott Emerson, Jonesboro, for appellant.

Kincade Law Office, by: Ronald P. Kincade, Mountain Home, for appellee.

ANDREE LAYTON ROAF, Judge.

AppellantGina Deluca appeals from the trial court's denial of her petition to modify custody by allowing her to relocate with her minor children to California.The trial court also denied the petition of her ex-husband, appelleeBobby Stapleton, for change of custody.On appeal, Deluca argues that the trial court failed to properly evaluate the factors to be considered in parental-relocation cases as set forth in Staab v. Hurst,44 Ark.App. 128, 868 S.W.2d 517(1994), and that the decision is clearly erroneous.We disagree and affirm.

Deluca and Stapleton were married in 1991 and divorced in 1993.Deluca was awarded custody of the parties' two minor children.At the time of the divorce both parties lived in Calico Rock.Deluca later moved to Jonesboro and attended Arkansas State University where she received a bachelor's degree in radiography in 2000.Deluca was employed part-time as a radiology technician at a Jonesboro hospital at the time of the hearing on her petition to relocate.Stapleton worked at Boeing Aircraft, also had a part-time photography business, and lived with his wife Linda in a mobile home next door to his mother outside Calico Rock.

Deluca filed her petition to relocate in October 2000, four months after the trial court had entered an order finding her in willful contempt for violation of prior orders regarding Stapleton's visitation.In her petition to relocate, Deluca asserted that she had finished her college courses in X-ray technology and had the opportunity to earn substantially more at a job she had been offered in her home state of California.The petition was not heard until nearly a year later, on August 9, 2001.The trial judge issued a detailed letter opinion on August 16, 2001, setting out the reasons why he was denying Deluca's petition to relocate.The order was entered four months later, and Deluca timely appealed.

Deluca argues on appeal that the trial court failed to follow the factors set out in Staab v. Hurst, supra, that she presented overwhelming evidence on the threshold issue of whether the move would result in a real advantage to the family unit as a whole, and that the evidence weighed in her favor on all of the additional factors to be considered after she had met this threshold burden of proof.

In cases involving child custody and related matters we review the case de novo, but we do not reverse the findings of the trial court unless it is shown that they are clearly erroneous or clearly against the preponderance of the evidence.Wagner v. Wagner,74 Ark.App. 135, 45 S.W.3d 852(2001);Presley v. Presley,66 Ark.App. 316, 989 S.W.2d 938(1999).A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite conviction that a mistake was committed.Turner v. Benson,59 Ark.App. 108, 953 S.W.2d 596(1997).In child-custody caseswe give special deference to the trial court's position to evaluate what is in the best interests of the child.Thompson v. Thompson,63 Ark.App. 89, 974 S.W.2d 494(1998).The best interest of the child remains the ultimate objective in resolving child custody and related matters.Staab v. Hurst, supra.

In Staab,this court set forth five factors that should be considered in determining whether to allow a custodial parent to move from the state of the non-custodial parent.These factors are:

(1) the prospective advantages of the move in terms of its likely capacity for improving the general quality of life for both the custodial parent and the children; (2) the integrity of the motives of the custodial parent in seeking the move in order to determine whether the removal is inspired primarily by the desire to defeat or frustrate visitation by the non-custodial parent; (3) whether the custodial parent is likely to comply with substitute visitation orders; (4) the integrity of the non-custodial parent's motives in resisting the removal; and (5) whether, if removal is allowed, there will be a realistic opportunity for visitation in lieu of the weekly pattern which can provide an adequate basis for preserving and fostering the parent relationship with the non-custodial parent.

Id.,44 Ark.App. at 134, 868 S.W.2d 517.Before a circuit judge is to consider the Staab factors, the custodial parent bears the threshold burden to prove some real advantage to the children and himself or herself in the move.Wilson v. Wilson,67 Ark.App. 48, 991 S.W.2d 647(1999).

In addition to her own testimony, Deluca presented the testimony of Professor Ray Winters, Chairman of the Radiology Services Department at Arkansas State University(ASU), Mary Deluca-Elder, her sister, and the parties' children Mandy and Travis Stapleton, ages eleven and nine.Dr. Winters testified that he was Deluca's advisor at ASU.He stated that Deluca was licensed as a radiographer in Arkansas, that she was working toward registration in mammography radiography, and that job turnover in mammography is low and opportunities for employment not readily available in central Arkansas.He further testified that demand for mammographers is higher on the east and west coasts, and that they are paid $2.50 to $3.50 more per hour than in the Arkansas region.Dr. Winters further testified that jobs were readily available in Arkansas in radiology and that Deluca could get one paying $13.00 to $15.00 per hour "anywhere in Arkansas at this time."He stated that Deluca would earn, at the outside, a dollar to two dollars more an hour if she were to be employed in mammography.

Deluca testified that she was taking additional training to qualify in the specialized area of mammography and that she was presently working part-time doing mammograms at a Jonesboro hospital.She further testified that her hours there had been "cut back" to eight per week, that she was living on unemployment, and that she also had to go on welfare and receive subsidized housing.She testified that she was unwilling to work as a general X-ray technician because it would be a "step backward" and would require her to be on call and work nights, weekends, and holidays as a new employee, and she would not have anyone to take care of her children.She stated that she wanted to move to Sacramento, California, where her sister lived, and that she had a job awaiting her in a breast imaging center working a day shift, with benefits and a $4,000 signing bonus.She further testified that her sister and her sister's husband planned to buy a house for her and the children to live in rent-free and would also help her with babysitting.She stated that she was willing to allow Stapleton to make up for the loss of weekend visitation by increasing his summer, Christmas, and spring break visitation.Deluca admitted that she and Stapleton cannot get along, do not talk to each other, and claimed that she had not "intentionally done anything wrong" in regard to the parties' past visitation disputes.

Mary Deluca-Elder testified by deposition that she was employed with the same radiology group where Deluca would be working and was aware of an opening there for a mammographer with a salary range of $15.57 to $21.80 per hour; that she and her husband would buy a house as an investment and allow Deluca to live there rent-free, and that she would not charge her for babysitting.Mandy Stapleton testified that "I pretty much think I would like it," if she went to live in California, and Travis Stapleton testified that he wanted to spend as much time as he could with both parents, had more fun with his dad, missed him, and wished he could be with his dad all the time.After the hearing Deluca also presented a faxed letter dated August 15, 2001, from her prospective employer confirming that she had been offered a full-time position as a radiology technologist in September 2000 in a "float pool" providing coverage for absent employees, and that there are always open positions in this pool.

Bobby Stapleton testified in opposition to Deluca's petition.He stated that he and Deluca had been in court nearly every year since 1995, including a Department of Human Services(DHS) hearing.He stated that before the March 2000 contempt hearing, he was able to see the children only sporadically at best, but since then he has been able to see them every other weekend.He testified that Deluca was responsible for allegations of abuse made against him to DHS, and that if Deluca was allowed to move to California, he would not even get summer visitation without a court fight.Stapleton testified that his parents, siblings and other family members lived in and near Calico Rock, that it was a two-and-a-half hour drive one way from there to Jonesboro, and that he had not attended many of the children's extracurricular activities, in part because he feared a confrontation with Deluca.

In his letter opinion, the trial court made the following conclusions of law and findings:

Staab v. Hurst,44 Ark.App. 128, 868 S.W.2d 517(1994) and its progeny have laid down the guidelines to be followed in this situation.Children, after the divorce of their mother and father, form a new family unit with the custodial parent.If the custodial parent seeks to move with the children to another state, the best interest of the children cannot be considered in a vacuum, but must be considered in the context of the family unit.An important inquiry is whether the proposed move is in the best interest of the custodial parent.

It may be (I am unable to say) that the proposed move of the mother to California would help her.If so, and the inquiry ended there,...