Sellew v. Davis

• Docket Number: CV-23-568
• Decision Date: 05 June 2024
• Citation: Sellew v. Davis, 691 S.W.3d 285 (Ark. App. 2024)
• Parties: Andrea SELLEW, Appellant v. Jacob DAVIS, Appellee
• Court: Arkansas Court of Appeals

691 S.W.3d 285

2024 Ark. App. 390

Andrea SELLEW, Appellant

v.Jacob DAVIS, Appellee

No. CV-23-568

Court of Appeals of Arkansas, DIVISION IV.

Opinion Delivered June 5, 2024

APPEAL FROM THE PULASKI, COUNTY CIRCUIT COURT, FOURTEENTH DIVISION[NO. 60DR-15-1086], HONORABLE SHAWN J. JOHNSON, JUDGE

Richard E. Worsham, Little Rock, for appellant.

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

KENNETH S. HIXSON, Judge

₁Appellant Andrea Sellew appeals from an order of the Pulaski County Circuit Court that granted appelleeJacob Davis’s motion for reallocation of parenting time and ordered each party to have equal parenting time with their thirteen-year-old daughter, MC.On appeal, Andrea argues that the circuit court erred in finding that a material change in circumstances was not necessary for a modification of the custody and visitation provisions in the parties’ divorce decree.Andrea argues in the alternative that the circuit court erred in finding that it was in MC’s best interest to modify the custody and visitation awards in the divorce decree.We affirm.

[1]The disposition of this appeal hinges on whether the parties' divorce decree awarded Andrea primary custody of MC or whether it awarded the parties joint custody.Andrea ₂argues that the divorce decree awarded her primary custody, while Jacob argues that it awarded joint custody.Traditionally, in determining whether a change in custody is warranted, the burden is on the moving party to show a material change in circumstances.See, e.g., Chaffin v. Chaffin,2011 Ark. App. 298, 2011 WL 1496000.However, in the watershed case Nalley a. Adams,2021 Ark. 191, 682 S.W.3d 297, the supreme court held that the material-change-in-circumstances analysis is not triggered when the parties maintain joint custody and neither party seeks an actual change of custody; in that event, the trial court may enforce its original order through the adjustment of parenting time.

I.Facto and Procedural History

The parties divorced in Duvall County, Florida, in November 2012, at which time MC was two years old.¹The divorce decree stated that the parties had reached an agreement resolving all pending issues, which was incorporated therein.The divorce decree provided that "the parties shall abide by the Parenting Plan which is attached hereto and incorporated herein."The divorce decree also ordered Jacob to pay child support.

At the time of the parties’ divorce, they had been living in Jacksonville, Florida, where Jacob was stationed on active duty with the U.S. Navy.However, Jacob had recently been reassigned to a naval base in Annapolis, Maryland, which is more than seven hundred miles from Jacksonville, Florida.Therefore, when the parties divorced, they contemplated that ₃Jacob would be living in Annapolis, Maryland, while Andrea would remain in Jacksonville, Florida.

The Parenting Plan that was attached to the divorce decree lists Andrea’s address in Jacksonville, Florida, and Jacob's address in Annapolis, Maryland.It provides, "This Parenting Plan is submitted to the court with the agreement of both parties."

The Parenting Plan contains the following pertinent provisions:

Shared Parental Responsibility: It is in the best interests of the child that the parties have full shared parental rights and responsibilities to confer and make major decisions affecting the welfare of the child.Major decisions include, but are not limited to, decisions about the child’s education, healthcare, and other responsibilities unique to this family.Each parent shall make decisions regarding day-to-day care and control of the child while the child resides with or is with that parent.

It further provides, "Division of Shared Parental Responsibilities: All major decision regarding the child shall be shared between Mother and Father."The Parenting Plan also states, "Both parents shall have equal and independent authority to confer with the child’s school, day care, health care providers, and other programs with regard to the child’s educational, emotional, and social progress."Under the subtitle "Child’s Rights," it states that MC has a right to "[h]ave both parents to love without fear of anger or guilt from either parent" and to "[d]evelop an independent and meaningful relationship with each parent and to respect the differences of each parent and their home."The Parenting Plan contains no provision for either party to have final decision-making authority in the event the parties were unable to mutually agree on major decisions affecting the child.

Under the subtitle "Scheduling," the Parenting Plan provides:

₄Goal: It is the parties’ goal to share time with the child as equitably as possible by accommodating their respective schedules, considering the minor child’s school calendar, and taking into consideration the timesharing schedule as set forth below.The parties acknowledge and agree that the schedule, set forth herein may change from time to time depending upon work schedules, school calendars, etc.

It also provides:

It is acknowledged that the child has a right to spend substantial time with both parents.Both parents are expected to provide access to the child at unscheduled times if requested and if to do so does not unreasonably disrupt prior planned activities of the child or the parent with whom the child is timesharing.

Under the subtitle "Timesharing as to the Child," the Parenting Plan states that "[m]other shall have the majority timesharing with the minor child."The Parenting Plan then provides that, until MC enters kindergarten, Jacob shall have seven consecutive days every month with MC and that

[u]pon the child entering kindergarten, the parties shall timeshare the minor child as more particularly set forth below.Father shall be entitled to and shall have the following minimum timesharing rights with the child and Mother shall have timesharing with the minor child at all other times.

(Emphasis in original.)This subsection then provides that Jacob may exercise timesharing on alternate weekends in the vicinity of Andrea’s residence and that this would include any three-day weekend of any given month.With respect to holidays and summers—applicable both before and after MC entered kindergarten—Jacob was awarded timesharing during Christmas and Thanksgiving breaks every other year; spring break every year; and the entire summer, subject to Andrea’s timesharing on alternate weekends in the vicinity of Jacob’s residence.

The Parenting Plan also contained the following provision:

₅DESIGNATION FOR OTHER LEGAL PURPOSES: The child named in this Parenting Plan is scheduled to reside the majority of the time with Mother.This parent is designated as the custodian of the child solely for purposes of all other state and federal statutes which require a designation or determination of custody.This designation does not affect either parent’s rights and responsibilities under this Parenting Plan.

We observe that the terms "primary custody" or "primary caretaker" appear nowhere in the Parenting Plan, and the Parenting Plan never uses the term visitation but repeatedly references timesharing with MC.We also observe that the Parent- ing Plan does not use the term "joint custody."

In August 2014, the Florida court issued a "Consent Judgment Modifying Final Judgment of Dissolution of Marriage."This judgment provided that Andrea shall be permitted to permanently relocate with MC to Little Rock, Arkansas, which relocation had already transpired.The judgment further provided:

This Court shall relinquish jurisdiction and further subject matter jurisdiction to enforce or modify the provisions of the Final Judgement is relinquished to the State of Arkansas regarding all post-dissolution matters, including those concerning the minor child.Arkansas is the new home state of the minor child pursuant to the provision of the UCCJEA.Each party specifically subjects themselves to the personal jurisdiction over each, respectively, in the State of Arkansas, and any further proceedings for enforcement or modifications shall occur in the State of Arkansas.

Consistent with the provisions of this judgment, Andrea relocated to Pulaski County, Arkansas, where she continues to reside.

In March 2015, Andrea filed in Pulaski County Circuit Court a petition to register foreign decree, asking that both the "Consent Final Judgment of Dissolution of Marriage" and the "Consent Judgment Modifying Judgment of Dissolution of Marriage" entered in ₆Florida be registered in Arkansas.In her petition to register foreign decree, Andrea stated that "[t]he divorce awarded the partiesjoint legal custody of the minor child with Petitioner having the majority timesharing with the minor child."(Emphasis added.)In August 2016, Andrea filed an amended petition to register foreign decree wherein she again made the above-quoted statement.In her amended petition, as she had previously alleged in her original petition, Andrea also stated that "she is the custodial parent under the orders and is the party seeking registration" and that "Jacob is the non-custodial parent under the orders."In Jacob’s response to Andrea’s amended petition to register foreign decree, he admitted Andrea’s allegation that the divorce decree awarded the parties joint legal custody of MC with Andrea having the majority timesharing with MC.Jacob stated further:

In response to paragraph 7, he denies that Petitioner is the custodial parent and that he is the non-custodial parent.Instead, he states that the parties share joint custody of their minor child, that they have shared parental responsibilities, and that they have a time sharing plan.Although Petitioner has majority timesharing, he has extensive minimum timesharing as provided in the plan.

(Emphasis in original.)Jacob did not object to Andrea’s request to register the Florida orders in Arkansas.In November 2015, the Pulaski County Circuit Court entered an ...