Emis v. Emis

• Decision Date: 19 February 2020
• Docket Number: No. CV-19-77,CV-19-77
• Citation: 2020 Ark. App. 126,597 S.W.3d 93
• Parties: Keith W. EMIS, Appellant v. Robin M. EMIS, Appellee
• Court: Arkansas Court of Appeals

2020 Ark. App. 126

597 S.W.3d 93

Keith W. EMIS, Appellant

v.Robin M. EMIS, Appellee

No. CV-19-77

Court of Appeals of Arkansas, DIVISION III.

Opinion Delivered: February 19, 2020

Taylor & Taylor Law firm, P.A., by: Andrew M. Taylor, Tasha C. Taylor, Little Rock, and Jennifer Williams Flinn, for appellant.

Chrestman Group, PLLC, by: Keith L. Chrestman, for appellee.

PHILLIP T. WHITEAKER, Judge

The appellant Keith Emis appeals a child-custody modification order issued by the Pulaski County Circuit Court. The court modified custody from primary custody in Keith to joint custody on a "shared custody" basis between Keith and appellee Robin Emis. Keith argues that the court erred in finding a material change of circumstances; that joint custody was not appropriate or in the best interest of the children; and that primary custody should be returned to him. Robin disagrees, claiming no error in the court’s decision concerning a material change of circumstances or that the award of joint custody was appropriate to meet the best interest of the children.¹

In child-custody cases, we review the evidence de novo, but we do not reverse the findings of the trial court unless it is shown that they are clearly erroneous or contrary to the preponderance of the evidence. Durham v. Durham , 82 Ark. App. 562, 120 S.W.3d 129 (2003). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court, on the entire evidence, is left with a firm conviction that a mistake has been made. Price v. Price , 2020 Ark. App. 74, 595 S.W.3d 32 ; Williams v. Williams , 2019 Ark. App. 186, 575 S.W.3d 156. After our de novo review, we are left with a firm conviction that a mistake has been made and that joint custody is not in the best interest of the children; therefore, we reverse and remand.

To assist in understanding our conclusion, we provide the following history of the parties’ relationship. Keith and Robin were married, and twin boys were born during the marriage. Keith and Robin divorced in September 2011. At the time of the divorce, the twins were twenty-two months of age. In the decree, Robin was awarded custody, and Keith was awarded visitation. Though divorced, the parties briefly reconciled. In 2014, they petitioned the court to modify support, custody, and visitation. On September 5, 2014, the court entered an agreed order, which provided "the parties have joint physical custody of the minor(s), with legal custody vested in Plaintiff Robin Emis."²

Keith and Robin have been embroiled in child-custody litigation since September 2014. Rather quickly after the entry of the agreed order, their relationship once again soured, and litigation ensued with both parties seeking an award of primary custody and with Robin also requesting the court’s permission to relocate with the children to Florida.

On August 27, 2015, the trial court entered an order denying Robin’s motions for relocation and for primary custody. Instead, the court granted Keith’s request for a change in custody, finding that a material change in circumstances had occurred since the entry of the September 2014 agreed order and that joint custody was no longer in the best interest of the children. Robin appealed the change-of-custody determination, and we affirmed.³ Emis v. Emis , 2017 Ark. App. 372, 524 S.W.3d 444. In affirming, we specifically noted that the parties’ relationship had clearly devolved into disharmony and discord, and having given a de novo review of the extensive and voluminous record presented, we could not conclude that the trial court’s determination that there had been a material change of circumstances was clearly erroneous; nor did we have a definite or firm conviction that a mistake had been made. Emis , 2017 Ark. App. 372, at 7–9, 524 S.W.3d at 450.

While the August 27, 2015 order was pending on appeal, the parties continued to pursue litigation before the circuit court. This subsequent litigation forms the basis for this current appeal. The circuit court had awarded custody to Keith in the August 2015 order. Approximately two months later, Robin filed a motion to change custody, seeking full custody of the children. In support of her motion, she alleged that Keith was, among other things, (1) engaging in a course of parental alienation; (2) denying her access to the information on the children and access to their lives; (3) generating public drama with the children’s school; (4) engaging in tacky and cruel mind games to the detriment of the children; and (5) employing countless babysitters to care for the children instead of allowing her extra visitation. Keith moved to dismiss the motion alleging that Robin had failed to assert a material change in circumstances or that a change of custody would be in the best interest of the children. Keith also filed a motion to modify visitation⁴ claiming that Robin was in violation of the custody order, was keeping the children from school, and had been erratic and nonresponsive.

Over the course of the next year, the parties filed numerous motions to show cause and for contempt and to modify visitation and custody. In each motion and response, both Keith and Robin highlighted the hostility between the parties and their inability to cooperate or co-parent without court intervention.

For example, on September 20, 2016, Robin filed an emergency motion for change of custody alleging (1) an imminent threat of physical harm claiming that Keith kept loaded guns within reach of the children; (2) increased parental alienation by interfering with her access to information and participation in the children’s lives and generating public drama; and (3) imminent threat of mental/emotional abuse by contradicting the children’s core religious beliefs, using profanity, talking disparagingly about her and other women, and calling the children by their nonpreferred names. She claimed that the children were manifesting distress in that they cried when they left her and had expressed anxiety about the conflicts and differences in the parenting dynamics.

As further examples, Keith likewise filed several emergency motions with the court for the return of the children. He claimed that Robin did not have a primary or stable residence; that she had removed the children from school early; and that she had refused to return the children on time or inform him of their location. Robin responded, alleging negligent supervision of academics; unstable/inadequate home environment; psychological abuse; safety concerns; inadequate supervision; health/safety/hygiene issues; and weaponization of the children.

For approximately three years, the parties continued to file pleadings, and the court held several custody hearings. Ultimately, during a highly contested and adversarial three-day hearing in which testimony was taken and thousands of pages of exhibits were introduced, both parties presented evidence of the deterioration and troubled nature of their relationship. As a result, the circuit court concluded that circumstances warranted a change of custody and then reimposed joint custody of the children on a "shared custody" basis. Keith appeals both the circuit court’s material-change-of-circumstances finding and its decision to award joint custody.

We first address Keith’s argument that the court erred in finding a material change of circumstances. For a change of custody, the circuit court must first determine that a material change in circumstances has occurred since the last order of custody, and the burden of proving such a change is on the party seeking the modification. Watts v. Watts , 17 Ark. App. 253, 707 S.W.2d 777 (1986). Custody should not be changed unless conditions have altered since the decree was rendered or material facts existed at the time of the decree but were unknown to the court, and then only for the welfare of the child. White v. Taylor , 19 Ark. App. 104, 717 S.W.2d 497 (1986). While custody is always modifiable, in order to promote stability and continuity for the children and to discourage repeated litigation of the same issues, our courts require a more rigid standard for custody modification than for initial custody determinations. Vo v. Vo , 78 Ark. App. 134, 79 S.W.3d 388 (2002). Custody awards are not made or changed to gratify the desires of either parent or to reward or punish either of them. Watts , supra.

Here, the circuit court concluded that there had been a material change of circumstances, citing seven facts warranting a change of custody: (1) the children’s depression; (2) the increased conflict between the parents; (3) Robin’s willingness to move to Little Rock; (4) the resolution of Robin’s financial difficulties; (5) Robin’s formation of a viable business plan; (6) the "disturbing" deposition testimony of one of the children; and (7) the children’s stated preference that they wished to live with their mother.

On appeal, Keith argues that the children’s stated preference cannot constitute a change in circumstances. He is correct because that preference had not changed since the last custody determination and because a child’s preference is only a factor in...