Lewellyn v. Lewellyn

• Court: Arkansas Supreme Court
• Writing for the Court: Robert L. Brown
• Citation: Lewellyn v. Lewellyn, 351 Ark. 346, 93 S.W.3d 681 (Ark. 2002)
• Decision Date: 19 December 2002
• Docket Number: No. 02-752.,02-752.
• Parties: Amanda LEWELLYN v. Tim LEWELLYN.

93 S.W.3d 681

351 Ark. 346

Amanda LEWELLYN v. Tim LEWELLYN.

No. 02-752.

Supreme Court of Arkansas.

December 19, 2002.

Mobley Law Firm, by: Jeff Mobley, Russellville, for appellant.

Dunham & Faught, P.A., by: James Dunham, Russellville, for appellee.

ROBERT L. BROWN, Justice.

Appellant Amanda Lewellyn-Fleming appeals the trial court's order awarding sole custody of their children to appellee Tim Lewellyn. She contends that changing joint custody of the children in both parents to sole custody in Tim constituted an abuse of discretion by the trial court and urges, instead, that she should have sole custody, as she relocates with a new husband from Russellville to Fayetteville. She further contends that substantial evidence does not exist for placing sole custody of the children in Tim and, thus, the trial court's finding that a change of custody was in the best interests of the children was clearly erroneous. We disagree on both points and affirm the trial court. On June 18, 1988, Tim and Amanda Lewellyn married. They had two children during their twelve-year marriage: Kelly born in 1991, and Jake born in 1997. On December 5, 2000, the trial court granted the Lewellyns an uncontested divorce. With respect to child custody, the divorce decree provided that the parties would be bound by the court's standard visitation order, as modified by the decree. The divorce decree designated Amanda as the "custodial parent" and Tim as the "non-custodial parent." The decree also provided that Tim and Amanda would have joint custody of Kelly and Jake, with each parent enjoying physical custody of the children on alternating months, and, for the noncustodial parent, weekly visits at midweek and every other weekend on off-months. Holidays were to be equally divided between the parties.

The divorce decree further contained an agreement that Kelly and Jake were to remain in the Russellville School District. To enforce this agreement, the decree contained a change-of-residency provision, which read:

Neither of the parties shall remove their primary residence more than 25 miles from the Pope County Courthouse without prior approval of the opposite party. Any change of residence more than 25 miles from the Pope County Courthouse without approval of the opposite party shall constitute a change of circumstances to be considered by the Court with respect to the issue of custody.

The divorce decree prohibited overnight "romantic partner[s]" while the children were present.

On June 16, 2001, Tim filed a showcause petition in the trial court in which he alleged that Amanda had an overnight romantic guest in violation of the divorce decree. Amanda answered and stated that she had married a man named Denis Fleming. She attached a copy of her marriage license in support of her answer. On July 24, 2001, Amanda filed an "Exparte (sic) Petition for a Change in Custody and Other Relief." She stated that Denis Fleming worked in Fayetteville and that she had found work in that city at a higher rate of pay — between $2.50 and $3.00 per hour — than what she had in Russellville. Citing the change-of-residency clause in the divorce decree, she argued that a material change in circumstances had taken place and asked for sole custody of the children and permission to move them to Fayetteville. In support of her petition, she argued for an emergency change in custody so that she could enroll Kelly and Jake in the Fayetteville public schools. Tim counterclaimed for custody of Kelly and asserted that the reason the change-of-residency clause was included in the divorce decree in the first place was because Kelly wished to stay in the Russellville school district. On August 8, 2001, the trial court denied Amanda's motion.

On August 9, 2001, Amanda filed a petition for a change in the custody of the children, repeating the reasons she had given in the request for an ex parte order. Tim amended his counterclaim with an allegation that Mr. Fleming had mistreated Kelly, and asked for sole custody of both children.

On August 30, 2001, the trial court held a hearing on the parties' motions for change in custody. The first witness called was Dr. Dan Ott, a licensed psychologist, who testified for Tim by way of a deposition. He testified about several counseling sessions that he had had with the Lewellyns, both before and after their divorce. According to Dr. Ott, after the divorce, Tim brought Kelly to him for counseling to help her cope with the divorce. He then testified generally about the negative effects of divorce on children and related the tumultuous school experiences of Kelly. She attended Westside Elementary School in Jonesboro for the first grade, was home-schooled for second grade after the random murders occurred at that school, and then went to Crawford Elementary in Russellville for the third grade. He testified that Kelly expressed a desire to say in the Russellville School District.

Dr. Ott also testified that he was concerned about the emotional impact on Kelly in moving to Fayetteville and adjusting to life there. He expressed concern about the new environment in Fayetteville with Mr. Fleming, and stated that Kelly had told him of her conflict with Mr. Fleming. He further testified that Kelly complained that her mother spent excessive time on her computer. Dr. Ott recommended that the court give "serious consideration" to Kelly's desire to stay in Russellville.

Amanda testified on her own behalf and told the court that her new husband worked as a vice-president of a real estate and construction firm and that she and her husband lived in a two-bedroom apartment in Fayetteville. She characterized Kelly and Jake as "obedient, polite, very loving children." She expressed a willingness to afford Tim liberal visitation. On cross examination, she admitted that the children slept in a converted computer room in the new apartment and stated that she did not agree with Dr. Ott's assessment of the effect a move would have on Kelly. She admitted to having some behavioral problems with Kelly and added that she had taken her to another therapist to help deal with the stress of divorce.

Betty Hefner, Kelly and Jake's day-care provider, testified for Amanda. She told the court that she had known Tim and Amanda for two years. She characterized Amanda as a good mother and added that she had seen Kelly and Jake interact with Mr. Fleming and that they seemed to like him. On cross examination, she characterized Tim as a good father who was concerned and loving toward his children. She related one incident when Kelly became sick at day care and Tim decided to leave her there. She testified that the children seemed settled and happy in Russellville.

Gretchen Douthit, a licensed professional counselor, testified for Amanda. She testified that Amanda's goal in counseling was to develop a better relationship with Kelly following the divorce. In her opinion, Kelly showed progress over the course of the sessions in resolving problems related to the divorce. She concluded that Amanda was a "very concerned, involved parent," who was worried about a "temporary deterioration in her relationship with her daughter." She said that they were able to resolve some of the problems between Kelly and Amanda.

Two of Tim's coworkers from Waste Management testified on his behalf. The first was Leslie Bartlett. She testified that Tim had a flexible work schedule at his job, which was oriented around his obligations to Kelly and Jake. She added that she considered Tim trustworthy and that she had let Tim watch her children from time to time. The second coworker was Wesley Sutherlin, a comptroller at Waste Management. He testified that Tim's work schedule was a flexible eight-to-five position and that Tim's salary was approximately $38,000 a year.

Tim testified on his own behalf and referred to the custody arrangement and the do-not-relocate provision in the divorce decree. He related an incident where, according to Kelly, Mr. Fleming had dangled her over a balcony. He said that he found out that his wife had remarried by calling the Washington County Circuit Clerk. He testified that Kelly had friends in her class at Crawford Elementary in Russellville. He told the court about the activities that he engaged in with his children, including trips to vacation spots like Sea World and Silver Dollar City. On cross examination, he denied having anything to do with Dr. Ott's opinion that Kelly should stay in the Russellville School District.

On August 30, 2001, the trial court issued a letter opinion granting sole custody of the two children to Tim. The court concluded in its opinion that it would be in the best interest of the children to stay with Tim. Specifically, the court wrote: "My decision essentially is based on the fact that I believe that these children have had enough trauma and change in their lives over the last year and a half that a further relocation to a different area would be extremely traumatic to them." The court stated that Amanda would be entitled to standard visitation and would be required to pay child support. The standard visitation schedule entitled the noncustodial parent to visitation every other weekend, on the parent's birthday, six weeks in the summer, and alternating holidays.

The trial court issued an order to this effect on September 11, 2001, and a nunc pro tunc followed on October 12, 2001. This second order specified that the children would be exchanged for visitation purposes at the town of Alma. The order further directed Amanda to produce pay stubs so that her child support could be set. Amanda timely filed a notice of appeal to our Court of Appeals.

In an unpublished opinion, the Court of Appeals reversed the trial court's orders. See Lewellyn v. Lewellyn, 2002 WL 1376214 (Ark.App. June 26, 2002). The court of appeals first held that the trial court erred in finding that Amanda's relocation to Fayetteville, by itself, was a...