Nalley v. Adams

• Decision Date: 14 April 2021
• Docket Number: No. CV-20-550,CV-20-550
• Citation: Nalley v. Adams, 2021 Ark. App. 167, 625 S.W.3d 336 (Ark. App. 2021)
• Court: Arkansas Court of Appeals
• Parties: Margaret E. NALLEY, Appellant v. Michael ADAMS, Appellee

2021 Ark. App. 167

625 S.W.3d 336

Margaret E. NALLEY, Appellant

v.Michael ADAMS, Appellee

No. CV-20-550

Court of Appeals of Arkansas, DIVISIONS III & IV.

Opinion Delivered: April 14, 2021

Rehearing Denied May 12, 2021

Mann & Kemp, PLLC, by: Harrison Kemp, for appellant.

LaCerra, Dickson, Hoover & Rogers, PLLC, by: Traci LaCerra, North Little Rock, for appellee.

KENNETH S. HIXSON, Judge

AppellantMargaret Nalley appeals from the Pulaski County Circuit Court's order filed on July 8, 2020, in favor of appelleeMichael Adams.On appeal, Margaret contends that the circuit court erred in finding that changes that occurred exclusively in Michael's life were sufficient to constitute a material change of circumstances to support his motion.We agree and reverse and remand.

I.Relevant Facts

Dr. Michael Adams(Michael) was an anesthesiologist in Jonesboro.Margaret Nalley(Margaret) was a registered nurse in Little Rock.Margaret and Michael were involved in a relationship that resulted in the birth of their daughter, M.A., who was born on May 10, 2017, in Little Rock.Michael and Margaret were not married.Shortly after the birth, Margaret and M.A. moved to Jonesboro and resided with Michael.The relationship between Michael and Margaret deteriorated, and on October 3, 2018, Margaret and M.A. moved back to Little Rock.Margaret subsequently filed an action in Pulaski County to adjudicate the paternity of M.A. and requested that she be awarded custody.Michael filed an answer wherein he denied all allegations in the petition for paternity.¹The circuit court determined Michael is the father of M.A. and awarded Michael and Margaret joint custody of M.A. in a written order filed on July 17, 2019, the details of which are set forth below.Further, the circuit court ordered Michael to pay child support in the amount of $3,511 monthly and awarded Margaret a judgment against Michael in the amount of $19,359 for back support.Regarding custody, the order provided the following in pertinent part:

2.The parties stipulate that theyshall have joint legal custody of the minor child with the mother serving as the primary caregiver.The remaining issues to resolve is the division of time between the mother and father and the issue of child support.Both will be discussed separately.

3.Shared time.The mother lives in Little Rock, Arkansas and the father lives in Jonesboro, Arkansas, a travel time of slightly over two hours.The parties lived together in Jonesboro until October 3, 2018, when they separated and the mother moved to Little Rock in search of employment.

4.The mother, in fact, applied for a job at Baptist Hospital on October 4, 2018.She was offered a job which she turned down.The mother has now obtained employment at Baptist Hospital earning $22.63 per hour for a 36-hour work week.The father is an anesthesiologist in Jonesboro and, up to the present date, worked not only his shifts at a hospital but also moonlighted in Siloam Springs, Arkansas and worked other doctors’ shifts in Jonesboro for additional compensation.The father states that he has now decided to only work his required shifts so that he will have more time available to visit with their daughter.

5.The Court finds that both parties are suitable to provide the care, love and nurture for the minor child.Both are medical professionals, well-educated and capable of making good decisions for their daughter.It is a compliment to both parties that they understood and agreed that there should be joint custody of the child recognizing that the shortfalls of either party were insufficient to prevent a joint custodial relationship.To say it another way, both parties recognize that the other party is, and can be, a proper parent for the child.

6.Unfortunately, the parties live two hours away from each other which makes it difficult to fashion a schedule so that both parties will have adequate time with the minor child.To complicate matters, the mother indicated that she works three 12-hour shifts probably on Monday, Tuesday and Wednesday, even though it could be other days.The father submitted a schedule for days he is off from his work, but the schedule provides little flexibility.

7.The Court has considered the desires of both parties, the recommendation of the attorney ad litem and the work schedules of both parties in trying to fashion a shared visitation schedule for the parties and their two-year-old child.The parties are encouraged to offer flexibility to the other party as much as possible.

....

10.Both parties are free to request additional visitation with the minor child at any reasonable time.Particularly, if the father elects to visit the child in Little Rock for an overnight, he must give the mother reasonable notice.Reasonable notice is at least 24 hours in advance.If the mother has plans for that night, additional time for visitation is to be arranged.

....

16.The parties agreed to use Our Family Wizard in their communication with each other but it is strongly encouraged that the parties reach a level of civility so that they can discuss important issues involving the child.

(Emphasis added.)The circuit court set out a specific visitation schedule from August 1, 2019, through August 2020, including holidays.The circuit court then determined that

[b]eginning September 2020, the father will have one week (seven days) per month plus one weekend per month from Thursday to Sunday.The father is to obtain his calendar for that period of time and provide it to the mother.If the mother does not agree to the dates that he selects, then they can either resolve the differences or return to court for a resolution.

(Emphasis added.)

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."

Margaret filed a response to the amended motion stating that Michael's allegations are misleading.She explained that she has allowed and continues to allow additional visitation.However, Margaret admitted that she has not allowed every request because Michael would request additional visitation every day he had off without taking into account any of the other factors of M.A.’s needs.Margaret further pleaded that the alleged buyout did not "require" Michael to find new employment and that his relocation to Little Rock did not constitute a change in circumstances warranting modification of custody.She further denied that a modification would be in M.A.’s best interest because the custody order was entered to promote stability, predictability, and continuity in M.A.’s life and should "not be modified based on changes that occur exclusively in the Defendant's life and which are of the Defendant's own making."Therefore, she requested that Michael's motion be denied and dismissed and that she be awarded attorney's fees.

A hearing was held on Michael's motion on June 29, 2020.At the hearing, regarding contempt, Michael testified that Margaret did not grant him all the additional time he requested.He did admit, however, that Margaret had approved some of the additional time.

Regarding change of custody, Michael testified that he had worked for NEA Baptist Memorial Hospital in Jonesboro as a staff anesthesiologist.He testified that his employment changed beginning in November 2019 when the Hospital sold the anesthesia rights to an outside group called Lifelinc, and Lifelinc took over anesthesiology.Michael explained that he was concerned about staying with Lifelinc because it had been sued forty-two times for malpractice and because he would have been expected to "cover" more CRNAs² after the company took over.Therefore, he began to look for new employment.Michael testified that of the four anesthesiologists on staff when Lifelinc took over, he was the only one that did not sign on with Lifelinc despite an offer to do so.Under the terms of his original employment agreement with NEA Baptist, he was allowed to stay on at the hospital for ninety days after Lifelinc took over without having to sign on with Lifelinc.Michael testified that he exercised that option and continued working there until March 31, 2020, at which point he quit.

Michael further testified that he had found new employment in Hot Springs at Pain Treatment Centers of America that would start in July 2020.He further testified that he had rented a house in Little Rock and would commute to his new job in Hot Springs.He testified that his new hours of employment would be...