Hewett v. Hewett

• Decision Date: 04 April 2018
• Docket Number: No. CV–17–612,CV–17–612
• Citation: Hewett v. Hewett, 547 S.W.3d 138 (Ark. App. 2018)
• Parties: Angela HEWETT, Appellant v. Kelly HEWETT, Appellee
• Court: Arkansas Court of Appeals

547 S.W.3d 138

Angela HEWETT, Appellant

v.Kelly HEWETT, Appellee

No. CV–17–612

Court of Appeals of Arkansas, DIVISION I.

Opinion Delivered April 4, 2018

Bishop Law Firm, by: Matt Bishop, Eureka Springs, for appellant.

Rhoads Law Firm, by: Johnnie Emberton Rhoads, Rogers, for appellee.

LARRY D. VAUGHT, Judge

Appellant Angie Hewett appeals the Benton County Circuit Court's order modifying custody of G.H., her child with appellee, ex-husband Kelly Hewett. The court's order modified the previous custody arrangement, under which Angie had primary custody, and awarded joint custody. We reverse and remand to reinstate the previous custody order.

Kelly and Angie Hewett were divorced on October 29, 2012. Based on an agreement of the parties, the court awarded Angie primary custody of the couple's son, who was five years old at the time, and awarded Kelly standard visitation. The record reflects that the parties have had significant difficulty communicating since the divorce and that they have continually argued. In 2013, Angie obtained an ex parte order of protection against Kelly, which was dismissed after a full hearing and that which resulted in the court increasing Kelly's visitation. In August 2016, Angie obtained an ex parte order terminating Kelly's visitation, stemming from an incident on July 31, 2016, in which Kelly's current wife, April Hewett, called Angie and reported that April and Kelly had gotten into an argument, Kelly had been drinking, the police had been called, and Kelly had left with G.H. to go to a hotel room. Angie retrieved G.H. from the hotel room and refused to allow Kelly to have further visitation. The court entered an ex parte order suspending Kelly's visitation but subsequently vacated the order and reinstated visitation after a full hearing.

Kelly then filed a motion for contempt against Angie and a counterclaim for modification of custody. He argued that Angie had made derogatory statements about him, failed to notify him of G.H.'s baptism, refused to provide him with extracurricular equipment he purchased for G.H., was disrespectful to Kelly via text and in the presence of G.H., and was attempting to alienate G.H. from Kelly. The court appointed Acacia Stinnet as attorney ad litem for G.H.

After a temporary hearing, the court found that the parties had not been able to get along since the time of the divorce and found no reason to restrict Kelly's visitation. Angie amended her motion to include allegations that Kelly had been excessively checking G.H. out of school and that Kelly had failed to give Angie the right of first refusal when he needed childcare for G.H., as required by the divorce decree.

The final hearing revealed further evidence of antagonistic behavior by both parties, including name-calling and an inability to communicate with each other. The court issued an order, filed on January 17, 2017, which found that there had been a material change in circumstances warranting a change of custody. While the court did not explicitly state how the circumstances had changed, the only circumstances that the court mentions in the order are the parties' inability to get along or communicate civilly with each other. The court found it was in G.H.'s best interest to award joint custody, which it did. It ordered the parties to agree on all decisions regarding the child, specifically stating that if the parents could not agree on extracurricular activities then G.H. would not be able to participate in such activities. The court found both parties in contempt: Angie for name-calling and Kelly for being under the influence of alcohol in the presence of the child.¹ Angie filed a timely notice of appeal challenging the court's modification of custody.

The Arkansas Supreme Court has stated that "the primary consideration in child-custody cases is the welfare and best interest of the children; all other considerations are secondary." Hamilton v. Barrett , 337 Ark. 460, 466, 989 S.W.2d 520, 523 (1999). Further, the court has stated that "[a] judicial award of custody should not be modified unless it is shown that there are changed conditions that demonstrate that a modification of the decree is in the best interest of the child, or when there is a showing of facts affecting the best interest of the child that were either not presented to the chancellor or were not known by the chancellor at the time the original custody order was entered." Jones v. Jones , 326 Ark. 481, 491, 931 S.W.2d 767, 772 (1996). "[C]hild custody is determined by what is in the best interests of the child, and it is not altered absent a material change in circumstances." Id. at 487, 931 S.W.2d at 770. "The party seeking modification of the child-custody order has the burden of showing a material change in circumstances." Id. at 491, 931 S.W.2d at 772. Further, "[f]or a trial court to change the custody of children, it must first determine that a material change in circumstances has transpired from the time of the divorce decree and, then, determine that a change in custody is in the best interest of the child." Lewellyn v. Lewellyn , 351 Ark. 346, 355, 93 S.W.3d 681, 686 (2002).

In reviewing child-custody cases, we consider the evidence de novo but will not reverse a trial court's findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Lowder v. Gregory , 2014 Ark. App. 704, at 14, 451 S.W.3d 220, 229. We give due deference to the superior position of the circuit court to view and judge the credibility of the witnesses. Id. , 451 S.W.3d at 229. This deference is even greater in cases involving child custody, as a heavier burden is placed on the trial court judge to utilize to the fullest extent...