Hollandsworth v. Knyzewski, 02-720.

• Citation: 109 S.W.3d 653
• Decision Date: 05 June 2003
• Docket Number: No. 02-720.,02-720.
• Parties: Sheree HOLLANDSWORTH v. Keith KNYZEWSKI.
• Court: Supreme Court of Arkansas

109 S.W.3d 653

Sheree HOLLANDSWORTH v. Keith KNYZEWSKI.

No. 02-720.

Supreme Court of Arkansas.

June 5, 2003.

Andy E. Adams, Fayetteville, Tim Cullen & Company, PLLC, Little Rock, for appellant.

Taylor Law Firm, by: Scott Smith and Chris D. Mitchell, Fayetteville, for appellee.

W.H. "DUB" ARNOLD, Chief Justice.

Appellant, Sheree Hollandsworth, appeals the Benton County Chancery Court's order changing primary custody and awarding same to appellee, Keith Knyzewski, of their two children and denying appellant's request to relocate out of state with the children while she was the primary custodial parent. We reverse and remand.

The facts in this case are not in dispute. Appellant and appellee were married on or about September 2, 1995, and lived together as wife and husband until on or about June 9, 2000, at which time they separated. Appellant and appellee are the parents of two minor children, Ethan Edward Knyzewski, born February 3, 1996, and Katherine Christine Knyzewski, born February 17, 1998. Appellant and appellee were divorced in October of 2000. According to the divorce decree, appellant was awarded primary custody of the parties' two children, subject to visitation by appellee. The divorce decree went on to find that appellant and appellee were each entitled to one-half of the children's free time, which the trial court set out as being weekends, holidays, and summer vacations. The trial court further set out a schedule of visitation if the parties could not otherwise agree. The parties thereafter negotiated a more liberal visitation schedule that allowed appellee to be with the children three and one-half days per week until the eldest child began kindergarten.

On December 31, 2000, appellant married Mr. Brian Hollandsworth, who is a corporal in the United States Army. Hollandsworth is stationed at Fort Campbell, Kentucky, and makes his home in Clarksville, Tennessee. In early January of

2001, appellant informed appellee that she would be moving to Tennessee to be with her husband and intended to take the children with her. On January 23, 2001, appellant found out that she was pregnant, and that the baby was due in October of 2001.

On January 11, 2001, appellee filed a petition for modification requesting that the children not be allowed to move with appellant to Tennessee, and further requesting that he be awarded primary custody of the children. Appellee argued to the trial court that there had been a material and substantial change in circumstance warranting modification of the trial court's decree. Appellee maintained that appellant had remarried and announced that she intended to relocate with the parties' minor children to Clarksville, Tennessee, thereby preventing appellee's visitation schedule with the children and separating the attachments the minor children have established in Northwest Arkansas with both sets of grandparents.

Appellant also filed a petition for modification of visitation and permission to relocate. She argued to the trial court that the material change in circumstance warranting the modification was that she had remarried and that it would be in the best interest of the children to live in a two-parent environment and that the two children would have the opportunity to form a relationship with their soon-to-be half-sibling. Appellant further requested that the parties alternate visitation every two weeks with a specific half-way location to transfer the children until the children were enrolled in school; and, after school-age, the visitation would follow the trial court's visitation schedule for holidays and an extended summer visitation for appellee, to offset the normal weekend visitations.

The trial court held a hearing on the petitions on April 26, 2001, and entered an order changing custody of the parties' minor children to appellee on May 21, 2001. The trial court found, citing Hickmon v. Hickmon, 70 Ark.App. 438, 19 S.W.3d 624 (2000), that appellant Hollandsworth, as the then-custodial parent of the minor children, had the burden to show a real advantage to herself and to the children for the proposed move from Northwest Arkansas to Clarksville, Tennessee. The trial court concluded that appellant failed to meet the burden and applied the Staab v. Hurst, 44 Ark.App. 128, 868 S.W.2d 517 (1994), criteria to analyze whether she should be allowed to move with the children.

The trial court found that neither appellant nor appellee had improper motives for requesting a change in custody and that appellant would comply with any substitute visitation orders. The trial court ruled that it was not in the best interest of the children to move to Tennessee, because of the disruption of the relationship between the children and appellee and the strong family ties the children had formed in Northwest Arkansas. Therefore, the trial court granted primary custody to appellee and set a visitation schedule for appellant. The trial court further noted that the court, in Hickmon, did not find the situation of a new husband/stepfather who provided a great deal of stability and income for the child, to be enough, in and of itself, to warrant relocation. The trial court in Hickmon denied the move of the children to Arizona stating that "there was not a way to substitute the long distance visitation for what the children had been used to with their father, and I find that those are probably the overriding concerns here."

Appellant Hollandsworth filed a notice of appeal on June 13, 2002, to the Arkansas Court of Appeals. In a 5-4 decision, the court of appeals reversed the trial court's ruling. Hollandsworth, v. Knyzewski, 78 Ark.App. 190, 79 S.W.3d 856 (2002)(Hollandsworth I). The majority applied the Staab criteria and concluded that the trial court clearly erred in denying the petition for relocation and changing the primary custody to appellee. Id. The majority further found that having a stay-at-home mother in a two-parent home was a distinct advantage to the children, and that appellant's motives for the move to Tennessee were pure and that she would abide with any substituted visitation orders. Id.

Appellee petitioned this court for review from the court of appeals decision, and we granted appellee's petition. When this court grants a petition for review of a decision by the court of appeals, this court reviews the appeal as if it had been originally filed in this court. Lewellyn v. Lewellyn, 351 Ark. 346, 93 S.W.3d 681 (2002). Appellant Hollandsworth's point on appeal is whether the trial court erred in vesting custody of the parties' minor children in appellee Knyzewski, when appellant desired to relocate with the children to Tennessee.

This court has traditionally reviewed matters that sounded in equity de novo on the record with respect to fact questions and legal questions. ConAgra, Inc. v. Tyson Foods, Inc., 342 Ark. 672, 30 S.W.3d 725 (2000); Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979). We have stated repeatedly that we would not reverse a finding by a trial court in an equity case unless it was clearly erroneous. ConAgra, Inc. v. Tyson Foods, Inc., supra. We have further stated that a finding of fact by a trial court sitting in an equity case is clearly erroneous when, despite supporting evidence in the record, the appellate court viewing all of the evidence is left with a definite and firm conviction that a mistake has been committed. Id. These common law principles continue to pertain after the adoption of Amendment 80 to the Arkansas Constitution, which became effective July 1, 2001. Id.

In this case, the trial court found appellant's relocation to be a material change in circumstance and applied a "real advantage" test, purportedly basing its decision using the law set forth in Hickmon v. Hickmon, 70 Ark.App. 438, 19 S.W.3d 624 (2000), and the factors applied therein, and more recently applied in the case of Wagner v. Wagner, 74 Ark.App. 135, 45 S.W.3d 852 (2001), which 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 noncustodial parent; (3) whether the custodial parent is likely to comply with substituted visitation orders; (4) the integrity of the noncustodial 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 noncustodial parent. Wagner, supra; Hickmon, supra.

Appellant asserts that the trial court erred. We agree and hold that relocation of a primary custodian and his or her children alone is not a material change in circumstance. We announce a presumption in favor of relocation for custodial parents with primary custody. The noncustodial parent should have the burden to rebut the relocation presumption. The custodial parent no longer has the responsibility to prove a real advantage to herself or himself and to the children in relocating.

Courts throughout the country have been grappling with the issue of relocation. This court visits the issue of relocation not only to resolve the case before us, but because of what we ascertain as confusion among the bench, bar, and parties. In an ideal setting, parents would never get divorced, and children would live in a caring, two-parent household. However, we are not fortunate enough to live in such a world. Divorce, without exception, transforms the relationship between the divorced parents, as well as between the parents and their children. See Cooper v. Cooper, 99 N.J. 42, 491 A.2d 606 (1984). Within four years of a divorce, one-fourth of all custodial mothers will move...