NALLEY V. ADAMS

• Docket Number: No. CV-20-550
• Decision Date: 14 April 2021

The Arkansas Court of Appeals reversed an order that had granted a motion to modify custody and reasoned that the father's move from Jonesboro to Little Rock did not create a material change in circumstances, because he brought about the change. Judge Hixson noted that the father, an anesthesiologist practicing in Jonesboro, sought modification from the original decree because of an ability to exercise more visitation which now changed due to moving to Little Rock near the child. There was a paternity decree, and a short while later, this litigation occurred.

"Only five months later, on December 30, 2019, Michael filed a motion for contempt and for modification against Margaret. In his motion for contempt, he acknowledged that the parties were to share joint legal custody but were not awarded equal time due to the distance between the parties. Michael, however, alleged that Margaret had systematically been refusing to grant him the additional time he had requested to spend with M.A. Therefore, he asked that Margaret be ordered to show cause and be punished accordingly. Michael's motion also contained a request for modification of child support. Michael alleged that he had a 10 percent reduction in income because another company had essentially bought out his anesthesiology practice and therefore, he was entitled to a reduction in child support.

"Two months later, on February 24, 2020, Michael filed an amended motion for contempt and for modification. In his amended motion, not only did Michael repeat his allegations of contempt and his request to reduce his child-support obligations, Michael requested a change in custody of M.A. Michael alleged that because of the buyout of his practice in Jonesboro, he was taking a new job in Hot Springs and was going to live in Little Rock. He therefore alleged that '[t]here has been a material change in circumstance warranting a modification of custody in that due to the change of employment, due to third parties, the Defendant is relocating to Little Rock, Arkansas.' He further alleged that '[i]t is in the child's best interest that the parties share joint custody of the minor child with each party exercising equal time.'"

The circuit court denied the contempt motion, which was based upon the mother disallowing the father some requested visits; however, it found there was a material change in circumstances and reversed the original custody award. The majority of the Court of Appeals saw things differently and reversed the circuit court's modification order and wrote:

"The party seeking modification of the custody order has the burden of showing a material change in circumstances. . . . Generally, courts impose more stringent standards for modifications in custody than they do for initial determinations of custody to promote stability and continuity in the life of the child and to discourage repeated litigation of the same issues. . . . The factors appropriate when determining if there has been a material change of circumstances include, but are not limited to, one parent's relocation, the...