Parker v. Parker

• Decision Date: 19 September 2001
• Docket Number: CA 00-331
• Citation: Parker v. Parker, 75 Ark. App. 90, 55 S.W.3d 773 (Ark. App. 2001)
• Parties: Parker v. Parker
• Court: Arkansas Court of Appeals

75 Ark. App. 90

55 S.W.3d 773

Louanne PARKER v. John Matthew PARKER

CA 00-331

COURT OF APPEALS OF ARKANSAS, DIVISION THREE

September 19, 2001, Opinion Delivered

Kent J. Rubens and William Palma Rainey, for appellant.

Goodwin, Moore, Colbert, Broadway & Gray, LLP, by: Harry Truman Moore; and Barrett & Deacon, P.A., by: D.P. Marshall Jr., for appellee.

LARRY D. VAUGHT, Judge. BIRD, J., agrees. ROBBINS, J., concurs.

LARRY D. VAUGHT, Judge. In this Craighead County divorce case, appellant, who was granted custody of the parties' children, appeals the chancellor's decision prohibiting her from relocating to Little Rock. She also challenges the chancellor's finding that certain assets were appellee's nonmarital property and the chancellor's calculation of appellee's income for purposes of alimony and child support. We affirm the chancellor's ruling on the property division and support awards, but reverse and remand his ruling on relocation.

Appellant and appellee were married in 1983, and the marriage produced three children. The children were all born in Little Rock, and the family lived there from the mid-1980's until 1996, at which time they moved to Jonesboro. Shortly after the move, the parties' marriage began to deteriorate. Their relationship became very acrimonious and fraught with extreme discord, and the record is replete with evidence of almost daily conflict over numerous matters, large and small. Appellant filed for divorce in December 1997 and sought custody of the children. Appellee also sought custody, and he initially remained in the home following the filing of the divorce complaint. However, in February 1998, appellee left the premises and rented a house nearby. In conjunction therewith, the parties entered into an agreed temporary order giving appellant custody of the children and containing the following provision:

Neither parent shall remove the children from the County of Craighead for the purpose of changing the children's residence without the written consent of both parties for a period of five years from the entry of a final decree of divorce and agree that this provision is to be included in a final divorce decree. The parents recognize that this provision does not obligate the court, but the parents agree that this provision is a critical provision of this agreement and mutually request that the court comply with this parental agreement.

In October 1998, after an unsuccessful attempt to settle the case, appellant asked the chancellor to modify the temporary order to allow her to move from Craighead County. She cited as reasons for her request the constant conflict between her and appellee, the number of people in the community that would be involved in the divorce proceeding, and the higher earning potential and better educational opportunities in larger cities. Appellant also amended her complaint to add adultery as a ground for divorce, based upon her claim that, since the original filing date, appellee had engaged in sexual encounters with a number of women, including a twenty-one-year-old college student. She alleged that appellee's conduct had so humiliated her and the children that it would be in their best interest to move from Jonesboro.

During an eleven-day trial, the chancellor heard the testimony of over thirty witnesses and viewed over two hundred exhibits relating to the issues of custody, relocation, property settlement, and support. For the moment, we will concern ourselves only with the evidence that concerns the relocation issue. Appellant testified that, should she receive custody of the children, she would like to move with them to Little Rock for the following reasons: 1) Little Rock is closer to her parents and her sister, whom she visits three times per year; 2) she had a job offer at the Anthony School in Little Rock; 3) she wanted to further her education by pursuing a Ph.D. in School Psychology at the University of Central Arkansas; 4) her children were born in Little Rock, lived there for many years, and have friends there, as does she; 5) she has a strained relationship with her in-laws, who live near her in Jonesboro; and 6) she wanted to remove her family from the acrimony and embarrassment caused by the divorce, by appellee's obsessive behavior, and by appellee's relationship with a much younger woman. She said that, if she were allowed to move the 133 miles to Little Rock, she would facilitate appellee's visitation by meeting him halfway between the two cities to deliver and pick up the children.

The children did not testify at trial. However, a psychologist, Dr. Phillip Hestand, spoke with all three of them, and his testimony revealed no strong feelings on their part one way or the other regarding a move from Jonesboro to Little Rock. Testimony from several witnesses indicated that all the children were doing well in school in Jonesboro, had made friends there, were involved in sports and activities, and visited frequently with their paternal grandparents.

Following the trial, the chancellor found that both parties were caring, loving, and attentive parents. However, he determined that appellant had been the children's primary caregiver and was more emotionally stable than appellee. He referred to evidence that appellee's obsessive disorder "tended to drive everyone around him crazy in trying to deal with him," and to evidence that psychiatric tests revealed that appellee was depressed, paranoid, suffering from anxiety, and could be using drugs or alcohol. Based on those findings, the chancellor awarded custody to appellant and gave appellee standard visitation. The chancellor then turned to the question of whether appellant should be restricted from relocating outside Craighead County. He first addressed the import of the agreed temporary order:

[Appellant] now disavows the … provision of the Agreed Temporary Order stating that she never intended to agree to its terms and provisions. She was represented by very able and competent counsel who approved that agreement in her behalf and the testimony before the Court convinces the Court that she was aware of the provision. It may well be that, with the passage of time and all the unfortunate events that have occurred, she has now changed her mind and wants to move herself and the children from the scene of a failed marriage. Both parties recognize and agree that it is axiomatic that courts are not bound by any agreement the parties enter into regarding custody, support, or visitation although their agreement may tend to show their attitude regarding those matters.

Next, the chancellor reviewed this court's decision in Staab v. Hurst, 44 Ark. App. 128, 868 S.W.2d 517 (1994), wherein we adopted a set of standards to be used in deciding parental relocation cases. In Staab, we established a framework that first provides that, "where the custodial parent seeks to move with the parties' children to a place so geographically distant as to render weekly visitation impossible or impractical, and where the noncustodial parent objects to the move, the custodial parent should have the burden of first demonstrating that some real advantage will result to the new family unit from the move." Id. at 134, 868 S.W.2d at 520. Once the custodial parent meets the threshold burden of showing that a real advantage will result from the move, the following factors must then be considered:

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 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 substitute 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 parental relationship with the noncustodial parent.

With the Staab factors in mind, the chancellor proceeded to examine appellant's reasons for wanting to move to Little Rock:

While it is true that [appellant] will be somewhat closer to her relatives in Texas, the distance … will only be 133 miles further if she remains in Joneboro. She does have an abundance of friends in Little Rock but, on the other hand, she also has made a number of friends in Jonesboro and some of them rallied to her cause and supported her in her divorce action.

[Appellant] testified that she will have a job starting in August at the Anthony School [in Little Rock] and wants to return to teach there and to place the children in school there. She also has prospects of a job in Jonesboro and, in fact, has a job at the present time earning $ 700.00 per month. She felt reasonably sure she could obtain better employment if she continued residing in Jonesboro and the Court feels confident that, considering her education and background, she should be able to obtain better employment.

[Appellant] definitely wants to complete her educational requirements for a degree, but she was rather uncertain about the advantages of [the University of Central Arkansas] as opposed to [Arkansas State University in Jonesboro]. ASU is an excellent college of higher learning and the Court feels reasonably confident that she could obtain a similar degree at that institution.

Finally, the Court does sympathize with [appellant] in her desire…to remove herself from Jonesboro and the scene of a failed marriage, a stressful relationship with her in-laws, and the embarrassment of [appellee's] dalliance with a college girl. On the other hand, [appellant] won't be living with [appellee], nor will she be living with his parents and that stressful part of her life should be...