Stills v. Stills, 08–1352.

• Citation: 2010 Ark. 132,361 S.W.3d 823
• Decision Date: 29 April 2010
• Docket Number: No. 08–1352.,08–1352.
• Parties: David STILLS, Appellant, v. Amber STILLS, Appellee.
• Court: Supreme Court of Arkansas

2010 Ark. 132
361 S.W.3d 823

David STILLS, Appellant,
v.
Amber STILLS, Appellee.

No. 08–1352.

Supreme Court of Arkansas.

March 18, 2010.Rehearing Denied April 29, 2010.

[361 S.W.3d 825]

Matthews, Campbell, Rhoads, McClure, Thompson & Fryauf, P.A., by: David R. Matthews and Sarah L. Waddoups, Rogers, for appellant.

Taylor Law Partners, by: William B. Putman, Fayetteville, for appellee.

JIM GUNTER, Justice.

Appellant, [2010 Ark. 1] David Stills, appeals the circuit court's order denying his petition for change of custody, finding the parties' earlier relocation agreement unenforceable, and granting appellee's petition to relocate. On appeal, David argues that the circuit court erred in (1) refusing to enforce the parties' settlement agreement, specifically the waiver of the Hollandsworth presumption; (2) failing to require Amber to meet her burden of proof under the settlement agreement; (3) failing to find that Amber was equitably estopped from challenging the settlement agreement; (4) using an erroneous standard of review in deciding his change of custody petition; and (5) denying his change of custody petition. We assumed this case as one involving an issue of first impression, public interest, and needing clarification and development of the law; therefore, we have jurisdiction pursuant to Ark. Sup.Ct. R. 1– [2010 Ark. 2] 2(b)(1), (4), and (5). We affirm.

The parties in this case, Amber and David Stills, were married on April 18, 1998, and had three children.¹ The parties separated, however, on February 5, 2005, and a decree of divorce was entered on April 28, 2005. The decree granted primary custody of the children to Amber, awarded David visitation, and ordered David to pay child support, pursuant to a Property Settlement, Custody, and Support Agreement reached by the parties that was incorporated by reference into the decree. The agreement also contained a provision regarding the children's residence, in which the parties agreed that the children should grow up in Northwest Arkansas; that the children's residence would remain within twenty-five miles of the Springdale Police Department building; that Amber could change the children's residence, as long as it was still within the twenty-five mile radius; but that if Amber sought to move the children outside the twenty-five mile radius, then she would first be required to seek the approval of the court, with the court making its determination based upon the best interests of the children. The court would also be required to make a finding that David's visitation rights and his right to share in major life decisions of the children would not be diminished. The provision specifically stated that the parties were “attempting to remove what is commonly referred to by the courts of Arkansas as the Hollingsworth [sic] presumption from any decision of the court.” According to the terms of this provision, Amber agreed that there would be no presumption in favor of her relocating outside the twenty-five mile radius and [2010 Ark. 3] that she would bear the burden of proving to the court that it was in the best interest of the children to relocate.

On March 10, 2008, David filed a petition to restrain any move of the children, alleging that Amber had recently announced her intention to move the children to Dallas, Texas; that she had begun preparations for moving by listing her house in Rogers for sale and notifying her employer of her impending move; and that she had not sought the court's permission for such a move, as dictated by the parties' agreement. Amber filed a counter-petition to

[361 S.W.3d 826]

allow relocation and for modification of custody on March 17, 2008. In her petition, Amber argued that, “should the Court find the geographical restriction and the waiver of Hollandsworth effective,” then the court should find that it is in the children's best interest that she be allowed to relocate to Dallas.

On June 9, 2008, David filed a petition for change of custody, alleging that, since the time that the divorce decree was entered, there had been a material change of circumstances in that Amber had intentionally engaged in behavior intended to alienate David from his children; that Amber had failed to meet the children's needs to be on time and present in school; and that Amber had engaged in a pattern of cohabitation in the presence of the children. Also on June 9, David filed a petition for contempt, alleging that Amber had “willfully and wrongfully failed and refused to comply” with the terms of the divorce decree. And on June 17, 2008, David amended his response to Amber's counter-petition and asserted that Amber should be equitably estopped from seeking to circumvent or set aside the terms [2010 Ark. 4] of the settlement agreement.

A hearing was held on August 11, 2008. After hearing extensive testimony from both parties regarding allegations of misconduct and the perceived effect that a move to Dallas would have on the children, the court made a lengthy ruling from the bench. In its ruling, the court found that David had failed to prove by a preponderance of the evidence that a substantial and material change of circumstances had occurred so as to warrant a change of custody, but that David had proven by a preponderance of the evidence that Amber had violated the court's previous order by making derogatory remarks about David in front of the children and by cohabitating with members of the opposite sex on several occasions while in the presence of the children. The court found Amber in contempt and sentenced her to four days in the county jail, but allowed her to purge herself of the contempt by paying a portion of David's attorney's fees, with the exact amount to be established later in the written order.

With regard to Amber's request to relocate, the court found that Amber's reason for relocating was not to estrange David from the children and that David had failed to rebut the presumption in favor of relocation that was established in Hollandsworth. The court also found that the language contained in the parties' settlement agreement, which purported to waive the Hollandsworth presumption, was not enforceable, and that such an agreement was not in the best interest of the children. The court ruled that the visitation schedule already in place would remain, except that David would have weekend visitation in Arkansas only one weekend per month; the remaining weekend visitation would be exercised in Texas. In [2010 Ark. 5] addition, the court eliminated David's mid-week visitation, which was normally exercised on Wednesday nights.

On August 22, 2009, prior to a written order being entered, David filed a petition for reconsideration and/or clarification of visitation privileges, asking the court to reconsider certain aspects of the visitation schedule. There is no indication that this petition was ruled upon, however, and on August 29, 2008, a written order of the court's bench ruling was entered. This order specifically found that Amber could not legally waive the Hollandsworth presumption and that she could purge herself of contempt by paying attorney's fees in the amount of $1000 as well as David's filing fees. A notice of appeal from this order was entered on September 4, 2008.

[361 S.W.3d 827]

This court has traditionally reviewed matters that sounded in equity de novo on the record with respect to fact questions and legal questions. Hollandsworth v. Knyzewski, 353 Ark. 470, 109 S.W.3d 653 (2003). We have stated repeatedly that we would not reverse a finding by a trial court in an equity case unless it was clearly erroneous. Id. We have further stated that a finding of fact by a trial court sitting in an equity case is clearly erroneous when, despite supporting evidence in the record, the appellate court viewing all of the evidence is left with a definite and firm conviction that a mistake has been committed. Id. We also give due deference to the superior position of the chancellor to view and judge the credibility of the witnesses. Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d 520 (1999).

For his first point on appeal, David asserts that the Hollandsworth presumption only [2010 Ark. 6] protects Amber's right to travel and that the circuit court erroneously believed that the presumption was for the benefit of the children and could not be contracted away. David contends that the Hollandsworth presumption is solely for the benefit of the custodial parent, and as the custodial parent, Amber could and did voluntarily waive her right to that presumption. David argues a waiver of this presumption is akin to a defendant's waiver of a presumption of innocence, a right to counsel, and a right to a jury trial. David adds that Amber's waiver of this presumption was a knowing and intelligent waiver because she was represented by counsel, who explained the presumption to her.

In support of his position, David cites Rownak v. Rownak, 103 Ark.App. 258, 288 S.W.3d 672 (2008), in which the court of appeals held valid an agreement, incorporated into a divorce decree, that the parties would not promote another religion other than Protestantism to the minor children. The father later converted to the Latter–Day Saints faith and promoted that faith to the children, and the court found the father in contempt and ordered him to cease such conduct. In its decision, the court of appeals found that “the injunction about which appellant complains has for its basis a valid contract between the parties and does not violate appellant's constitutional rights.” Id. at 261, 288 S.W.3d at 674–75. The court also cited law recognizing the “long-held right allowing parties to make their own contract and to fix its terms and conditions, which will be upheld unless illegal or in violation of public policy.” Id. at 262, 288 S.W.3d at 675 (citing Am. Ins. Co. v. Austin, 178 Ark. 566, 11 S.W.2d 475 (1928)).

In [2010 Ark. 7] addition, David cites Van Camp v. Van Camp, 333 Ark....