                                  Cite as 2014 Ark. App. 664

                  ARKANSAS COURT OF APPEALS
                                      DIVISIONS IV & I
                                        No. CV-14-91


CHERI SUZANNE MCCOY                                 Opinion Delivered   November 19, 2014
                  APPELLANT
                                                    APPEAL FROM THE BAXTER
V.                                                  COUNTY CIRCUIT COURT
                                                    [NO. DR-2004-539-4]

VERNON JEFFREY KINCADE                              HONORABLE GORDON WEBB,
                     APPELLEE                       JUDGE

                                                    AFFIRMED



                            PHILLIP T. WHITEAKER, Judge


       This appeal arises from a child-custody modification. The Baxter County Circuit

Court entered an order modifying the joint-custody arrangement of the parties’ minor

children, placing primary custody in appellee, Vernon Jeffrey Kincade, and providing

appellant, Cheri Suzanne McCoy, with visitation. McCoy appeals the trial court’s decision,

arguing that the trial court erred in finding that a material change of circumstances existed to

support modification. We affirm.

       On appeal in these types of cases, we perform a de novo review, but we will not

reverse the trial court’s decision unless the findings are clearly erroneous. Taylor v. Taylor, 353

Ark. 69, 110 S.W.3d 731 (2003); Ross v. Ross, 2010 Ark. App. 497. Our analysis must now

turn toward this de novo review.
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       The parties were granted an absolute divorce in December 2004. The divorce decree

incorporated a child-custody and property-settlement agreement by which the parties were

to share joint custody of their two minor children. The agreement was very specific. The

children would reside with Kincade during the week and with McCoy the first three

weekends of each month, as well as the fifth weekend of any month with five weekends.

Kincade would have the children in his care during the fourth weekend of every month.

However, McCoy was entitled to visitation with the children on the Thursday prior to

Kincade’s weekend with the children. During the summer months, McCoy was given

custody of the children for two weeks in June, two weeks in July, and one weekend in

August, none of which were to be consecutive. The order further stated that the neither

party would be entitled to permanently remove the children from Baxter County or enroll

the children in any school except the Moutain Home public schools without the permission

of the other parent.

       Approximately one month after the decree had been entered, McCoy moved to

Fayetteville, a distance of over 122 miles from the home of Kincade and the children. The

parties were initially able to work within the agreement despite the move.1 Eventually,

Kincade filed a petition to modify custody in January 2013, alleging that there had been a

material change of circumstances; specifically, that the parties children were older and desired

to be involved in numerous activities, that McCoy was unwilling to facilitate the children’s




       1
        The parties, without court approval, reached certain modifications by agreement: a
neutral place of pick-up and drop-off and a forfeiture of the Thursday visitation during the
fourth week of every month.
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involvement in those activities, and that these activities were integral to the development of

the children.

       A custody hearing was held, and the trial court heard testimony from the children and

both parents. The trial court thereafter issued a letter opinion setting forth its findings. The

court found that a material change of circumstances had occurred since the decree had been

entered. The trial court expressed its belief that the “fundamental nature” of the original

joint-custody arrangement changed when McCoy moved to Fayetteville and that the move

had the “potential to significantly affect the well being of the children.” While the court

praised the parents for their ability to make the arrangement work for almost nine years, it

found that the distance resulting from the move had begun to affect the lives of the children

as they grew older. The court found that the children had since matured to a point where

their school activities and social interactions with their classmates were becoming more

important in their development into young adulthood and that the current arrangement,

which forced them to miss those activities and interfered with those interactions, was

detrimental to them. As a result, the court entered an order granting the change in custody.

       When a change of child custody is sought in a joint-custody arrangement, the trial

court uses a two-prong analysis: (1) has a material change in circumstances transpired from the

time of the divorce decree? (2) If so, what is in the best interest of the child? See Singletary v.

Singletary, 2013 Ark. 506, 431 S.W.3d 234. Under the first prong, the court must determine

two things: (1) has a change of circumstances occurred? (2) If so, is this change of

circumstances material?      This analysis necessarily turns in large part upon credibility

determinations, and we give special deference to the superior position of the trial court to
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evaluate the witnesses, their testimony, and the children’s best interest. Sharp v. Keeler, 99 Ark.

App. 42, 256 S.W.3d 528 (2007). As a matter of law, there are no cases in which the superior

position, ability, and opportunity of the trial court to observe the parties carry as great a

weight as those involving children. Keith v. Keith, 2013 Ark. App. 700, 430 S.W.3d 845,

Judkins v. Duvall, 97 Ark. App. 260, 248 S.W.3d 492 (2007).

       McCoy challenges the trial court’s conclusion only under the first prong—that there

had been a material change in circumstances. The trial court found that, at the time of the

custody hearing, McCoy’s move to Fayetteville, Arkansas, was having an adverse impact upon

the children, thereby creating a material change of circumstances since the divorce decree had

been entered. We cannot find that such a determination was clearly erroneous. The move

to Fayetteville was clearly a change occurring after the entry of the divorce decree and, as the

court found, fundamentally changed the nature of the underlying custody agreement. Giving

special deference to the superior position of the trial court to evaluate the witnesses, their

testimony, and the children’s best interest, we do not believe that the trial court’s finding that

the change was material was clearly erroneous, given that, at the time of the hearing, the court

determined that the move was having an adverse impact on the children. For these reasons,

we affirm.

       Affirmed.

       GLADWIN, C.J., and PITTMAN, WYNNE, and HIXSON, JJ., agree.

       BROWN, J., dissents.

       WAYMOND M. BROWN, Judge, dissenting. According to applicable standard of

review, you must show that a material change has occurred in order to change custody. I feel
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strongly that the appellee did not meet his burden of proof. For the following reasons, I

respectfully dissent.

                                    I. Standard of Review

       In reviewing child-custody cases, we consider the evidence de novo but will not

reverse a trial court’s findings unless they are clearly erroneous or clearly against the

preponderance of the evidence.1 We give due deference to the superior position of the trial

court to view and judge the credibility of the witnesses.2 This deference to the trial court is

even greater in cases involving child custody, as a heavier burden is placed on the trial court

to utilize to the fullest extent its powers of perception in evaluating the witnesses, their

testimony, and the best interest of the children.3

       The party seeking modification of the custody order has the burden of showing a

material change in circumstances.4 In order to change custody, the trial court must first

determine that a material change in circumstances has occurred since the last order of custody;

if that threshold requirement is met, it must then determine who should have custody with

the sole consideration being the best interest of the children.5

       Arkansas law is well settled that the primary consideration in child-custody cases is the


       1
         Nichols v. Teer, 2014 Ark. App. 132, at 6, 432 S.W.3d 151, 154 (citing Preston v.
Preston, 2014 Ark. App. 58, at 2).
       2
        Id., 2014 Ark. App. at 6, 432 S.W.3d at 155
       3
        Id.
       4
       Evans v. McKinney, 2014 Ark. App. 440, at 4, 440 S.W.3d 357, 359 (citing Anderson
v. Thomas, 2013 Ark. App. 653).
       5
        Id.
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welfare and best interest of the children; all other considerations are secondary.6 Generally,

courts impose more stringent standards for modifications in custody than they do for initial

determinations of custody.7 The reason for requiring more stringent standards for

modifications than for initial custody determinations is to promote stability and continuity in

the life of the child, and to discourage repeated litigation of the same issues.8 Custody awards

are not made or changed to punish or reward or gratify the desires of either parent.9

                              II. Material Change in Circumstances

       On appeal, appellant argues that there are no material changes in circumstances.10

When a change of child custody is sought in a joint custody arrangement, the trial court must

first determine that a material change in circumstances has transpired from the time of the

divorce decree and, then, determine that a change of custody is in the best interest of the



       6
       Id., 2014 Ark. App. 440, at 3–4, 440 S.W.3d at 359 (citing Anderson v. Thomas, 2013
Ark. App. 653).
       7
        Id.
       8
           Id.
       9
           Word v. Remick, 75 Ark. App. 390, 393, 58 S.W.3d 422, 424 (2001).
       10
          Appellee argues that appellant waived this argument where she too argued below that
there was a change in circumstances while seeking primary custody of the children for herself,
albeit, for different reasons. Essentially, appellee argues that this equates to a stipulation
between the parties that there was a material change in circumstances. A stipulation is a “name
given to any agreement made by the attorneys engaged on opposite sides of a cause (especially
if in writing) regulating any matter incidental to the proceedings or trial, which falls within
their jurisdiction.” Davis v. State, 375 Ark. 368, 377, 291 S.W.3d 164, 170 (2009) (citing
McClard v. Crain Mgmt. Grp., Inc., 313 Ark. 472, 476, 855 S.W.2d 929, 931 (1993) (quoting
Black’s Law Dictionary 1269 (5th ed. 1979)). However, this argument fails because the parties’
attorneys did not enter into an agreement regarding the existence of a material change in
circumstances.
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child.11 The circuit court should not have reached the best interest determination that it made

because there was no material change in circumstances.

                           A. Appellant’s Move to Fayetteville, Arkansas

       In its letter opinion, the court noted that the arrangement between the parties was not

a “true joint custody arrangement” and “[had] never been.” Accordingly, as reflected in its

final order, it found that “the fundamental nature of the original agreement of joint custody

changed with the potential to significantly affect the wellbeing of the children when

[appellant] moved to Fayetteville, Arkansas.” However, in the parties’ settlement agreement,

which was incorporated into the divorce decree by reference, regarding child custody, the

court stated:

       The general scheme of physical custodial time with the children set out above is
       subject to change by agreement of the parties. The parties commit to being flexible
       with each other so as to meet the children’s need to spend time with both of their
       parents.

This essentially meant that the court permitted the parties to amend the court’s order

regarding custody by agreement. The parties did just this. Appellee testified that when

appellant moved away one month after the decree, the parties “modified the schedule.” They

removed appellant’s Thursday visitation, as the 122-mile distance made it unreasonable for

appellant, and left the remainder of the order in place. They continued in this fashion for

almost nine years. The court acknowledged this where it stated in its letter opinion that “[t]he

parties apparently immediately made adjustments and rearrangements to the Court’s order and

have lived with the original agreement, with modifications, for the past nine years.” There


       11
          Wymer v. Hutto, 2014 Ark. App. 497, at 2, ___ S.W.3d ___, __ (citing Singletary v.
Singletary, 2013 Ark. 506, 431 S.W.3d 234).
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was no admonition that this could not be done; it was permitted by the language of the

divorce decree. The court noted that the parties “made the best” of the situation “until the

present.” There is no evidence showing what changed. Accordingly, regarding the move

itself, there has been no material change.

    B. Children’s Having Matured so that School Activities and Social Interaction had
                      Significant Importance Attributed to Them

       The court found a material change in circumstances because the “children have

matured to a point in their lives where their school activities and the social interaction with

their classmates has become significantly more important to them than it was in 2004 when

they were four and seven years old[,]” now being twelve and almost fifteen years old. It went

on to state that it considered “this social interaction between young people and the activities

that that social interaction revolves around . . . to be essential to the healthy development of

young people” and that the children were being “deprived of an important part of their

healthy development.”

       Of note is that if missed activities were indeed the court’s issue, its new order does not

resolve the issue as the children are still with appellant on the weekends, just one to two

weekends less, and they are still with her during the summer, just at the beginning instead of

being dispersed throughout. The new arrangement does not solve the problem because it

cannot be solved.

       This is an unfortunate situation, but it is not unique to this case. All divorced parents

and their children—especially those with divorced parents who have a substantial physical

distance between their residences—encounter numerous scheduling conflicts. Sometimes the

children miss events and sometimes the parents miss events, without regard to who has
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primary custody.12 This occurs throughout the lives of the children. Missed activities are not

a material change in circumstances just because the children are now old enough to care about

missing them. Missed activities are simply not a material change in circumstances. Even if

missed activities constituted a change in circumstance, and they do not, it would not be

sufficient enough to stand as a material circumstance as it would have to since the court stated

in its letter opinion that “the initial move by the respondent to Fayetteville did not

significantly change the circumstances contrary to the children’s best interest.”

                                        C. Older Children

       The immediately preceding argument specifically deals with the children’s having

become more interested in their extracurricular activities due to their “maturity.” Maturity

is just another word for age.13 So essentially, that argument also alleges that there is a material

change in circumstances because the children have grown older. Appellee testifies that he

believed the children’s “getting older” was a change that would allow the court to change




       12
            C.K. testified that he also missed events while he was with his dad.
       13
          The children, by definition, are not mature. Both children testified that they
understand that they will miss out on some things, whether their mom had two weekends of
visitation or four, whether they we in Mountain Home or not. C.K. testified that the “main
reason[s]” he wants to change custody is because his mother yelled at him once for not having
his phone, he is bored at his mom’s house, cannot get a summer job, and he does not get to
hang out with his friends or go to Friday night games. A.K. testified about missing parties and
practices. Their reasoning for wanting to reduce their mother’s visitation is not “mature.”
This is also evidenced by both children’s testimonies that they received accommodations in
their activities and neither child’s recommendation for how they would like visitation to go
solves their issue with missing out on social and extracurricular activities.
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their custody agreement. This court has previously rejected the conclusion that a child’s aging

is a material change of circumstances.14

       The mere passage of time has never been a sufficient basis for finding a material change

of circumstances.15 However, at its core, this argument is that a material change in

circumstances has occurred because the children having grown older due to passage of time.

This simply cannot be allowed to be a material change in circumstances.

                                        D. Public Policy

       We must note that there are public policy implications to finding that missed

extracurricular activities are a material change in circumstances. First, we would be saying that

a child’s peer interaction is more in his best interest than his interaction with his parent.

Secondly, we would be saying that in order to change custody, time—i.e. allowing the child

to grow older—and children’s preferences, together and the latter, separately, would be

enough to do so. Both would be bad precedent. Peer relationships cannot be held to be more

in a child’s best interest than that child’s relationship with a parent. Furthermore, permitting

a child’s preference due to passage of time to support a change of custody would permit

changes in custody every time a child reached teenage years or developed a conflict with a

parent, based solely on their wishes. That was the case here—appellee testified that the request

to modify custody was at “C.K. and A.K.’s request[,]” not his. To permit this is bad policy.

       Therefore, I respectfully dissent.
       Taylor Law Partners, LLP, by: William B. Putnam, for appellant.
       Emily Reed, for appellee.

       14
         Harrington v. Harrington, 55 Ark. App. 22, 928 S.W.2d 806 (1996).
       15
         Hollinger v. Hollinger, 65 Ark. App. 110, 986 S.W.2d 105 (1999).
