Lyndsay Bell v. Zachary Bell

Citation: 2022 Ark. App. 279

Court: Court of Appeals of Arkansas; June 1, 2022; Arkansas; State Appellate Court

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Lyndsay Bell appealed the Pulaski County Circuit Court's June 24, 2021 order that modified the September 19, 2017 divorce decree with Zachary Bell. The trial court's modifications included a finding of material changes in circumstances justifying a custody change, a determination that the changes were in the best interest of their two minor children, alterations to the supervision requirement for Zach's spouse, and the introduction of a "springing" joint physical custody provision. This provision would automatically switch Lyndsay's primary physical custody to joint custody if Zach moved within twenty miles of the children's school. Additionally, the court modified the division of certain child-related expenses. The trial court maintained Lyndsay's primary physical custody as long as Zach resided outside the Little Rock area, increased Zach's visitation, and established new holiday and summer visitation protocols. The court found Zach in contempt for failing to pay required expenses but did not find Lyndsay in contempt. The appeal resulted in an affirmation in part and a reversal in part.

The court reviews domestic-relations cases de novo but will not overturn trial court findings unless they are clearly erroneous, meaning the reviewing court must have a firm conviction that an error occurred despite supporting evidence. Deference is given to the trial court’s ability to assess witness credibility and testimony weight, particularly in cases involving minor children, where the child's best interest is paramount. To modify a custody order, the party seeking the change must demonstrate a material change in circumstances since the last order, which is subject to more stringent standards than initial custody determinations to maintain stability for the child. In custody appeals, the court evaluates evidence de novo and only reverses clearly erroneous findings.

In this case, Zach filed for modification of the custody decree and bore the burden of proving a material change in circumstances. The trial court identified significant communication and parenting time issues stemming from ambiguities in the divorce decree as the material changes justifying the modification of custody and visitation. The court noted that lingering hurt and trust issues existed but did not consider them in determining the material change of circumstances.

Both parties involved in the divorce have since remarried and are in stable relationships, with children from both sides who enjoy spending time together. The court acknowledges past employment and income instability for Mr. Bell that has now stabilized. Testimony suggests that Ms. Bell may have alienated Mr. Bell from their children by micromanaging parenting duties, impacting his role. Lyndsay argues that ambiguities in the agreed Decree do not represent a material change in circumstances, as they existed at the time of signing and have not changed. She notes that no motions were filed regarding these ambiguities, although Zach claimed some provisions, including summer visitation, were vague and could benefit from more specificity. Lyndsay concedes that modifications to visitation provisions could reduce conflicts but asserts that the trial court's changes to custody terms were inappropriate as they altered the original agreement, rather than merely clarifying it. She cites previous cases emphasizing the importance of parental cooperation for joint custody and argues that Zach failed to demonstrate a material change in circumstances justifying custody modification. The trial court noted ongoing trust issues but stated these factors were not considered in determining whether a material change had occurred.

Lyndsay's argument against modifying the custody and visitation provisions is rejected due to evidence indicating her actions negatively affected Zach's relationship with the children. The trial court found Lyndsay had alienated Zach, partly through micromanaging his visitation, including imposing limits on the number of consecutive days he could see the children and controlling holiday arrangements without regard for his schedule. Additionally, she restricted who could supervise or transport the children. Although Lyndsay claims ineffective communication negates joint custody, the trial court concluded she instigated these communication issues and noted recent improvements in dialogue between the parties.

The trial court determined that Zach demonstrated a material change in circumstances justifying a modification of custody, primarily considering the children's welfare and best interests. Arkansas law requires a showing of changed conditions that support a modification of custody. The trial court emphasized that changes would provide the children with greater stability and predictability and enhance their relationships with both parents, siblings, and extended family. While Lyndsay argued that the children were thriving under the current arrangement, the court prioritized the need for a stronger bond with their father in its decision.

Lyndsay's case relies heavily on the testimony of the children's principal, Amy Somers, who indicated that both children are thriving academically and socially, with no behavioral issues. The son, LB, excels academically, while the daughter, AB, is an honor-roll student, both having received good-character awards. Somers noted that the children appeared unaffected by the custody dispute. She characterized Lyndsay as a highly involved parent, contrasting this with her minimal interactions with Zach, who had only requested information about the children's absences and grades. Although certain documentation was initially withheld from Zach due to Kemberly's non-custodial status, Somers later provided it directly to him.

Zach conceded that Lyndsay had not made decisions contrary to the children's best interests, with his only concern being scheduling coordination, which was not mandated by the custody Decree. Despite Lyndsay arguing that the trial court made significant changes to custody without adequate evidence, the court found that new facts regarding the children's best interests warranted these changes. This included addressing ambiguities in the original Decree, increasing Zach's involvement, and fostering bonds with half-siblings and extended family. The trial court ultimately found Zach more credible than Lyndsay, which influenced its decision. 

Regarding Kemberly George, the Decree prohibits the children from being unsupervised with her, citing Lyndsay's concerns about Kemberly's mental health. The supervision must be conducted by specified individuals, and additional supervisors can be mutually agreed upon in writing.

Lyndsay expressed concerns regarding Kemberly's mental health based on her Facebook posts about medication for manic episodes and incidents involving commercial vehicles. Despite Lyndsay's written discovery requests for more information, Zach refused to disclose details related to Kemberly's mental health, both in written responses and during his deposition. An attorney ad litem investigated and reported on Kemberly's mental health, noting her treatment history, including an inpatient stay, but confirmed she had not been in treatment or on medication since March 2020. The ad litem recommended modifying the supervision requirement in the custody decree to allow for more supervisors and limited unsupervised time with the children, which Lyndsay did not oppose. The trial court ultimately lifted the supervision requirement, citing Zach’s assurance that he would monitor Kemberly's behavior regarding her mental health. 

The court found no evidence that Kemberly had endangered the children, recognizing that concerns about her mental health were recent and unrelated to the original supervision requirement. The final order stated that the ad litem had verified Kemberly was receiving necessary mental health treatment, and it specifically instructed Zach not to leave the children unattended with Kemberly if she showed signs of mental health issues. Lyndsay argued that the burden was on Zach to prove a change in circumstances regarding Kemberly's mental health, which she claimed he failed to do, despite acknowledging the focus of his case on this issue. She requested that the court amend the order to align with the ad litem’s recommendations. The court found sufficient support for its decision, noting that Lyndsay did not present Kemberly as a witness to further her concerns. Although Zach suggested Kemberly might be bipolar, it was unclear if this was a formal diagnosis. The trial court recognized the seriousness of mental health issues, acknowledged Kemberly's history of postpartum depression, and concluded there was no evidence she was a potential harm to the children, who had a good relationship with her. Zach indicated he would address any future concerns regarding Kemberly's mental health as it relates to the children.

Lyndsay contends that the court should reassess the evidence in her favor, but credibility assessments are the purview of the trial court, and appellate courts refrain from reweighing evidence, as affirmed in Schnick v. Russell. The trial court’s Final Order states that Lyndsay retains primary physical custody of the children while Zach lives outside the Little Rock area, with a provision for automatic conversion to 50/50 joint physical and legal custody if Zach moves within 20 miles of the children's school. Lyndsay argues this "springing" provision lacks precedent and constitutes a clear error, as it allows custody to change based solely on Zach's relocation.

The court agrees with Lyndsay, referencing precedent that an appellant cannot use self-created circumstances to modify custody, as established in Jeffers. The Arkansas Supreme Court has clarified that mere relocation does not constitute a material change in circumstances justifying custody modification. In Jeffers, a similar situation where a parent’s voluntary move was deemed insufficient to warrant a custody change was highlighted. Lyndsay asserts that the trial court's decision improperly relied on Zach’s residential change without considering whether it served the children's best interests or allowing her to contest the change. The trial court failed to impose necessary conditions on Zach's move and did not evaluate other potential material changes affecting custody, such as safety concerns or shifts in Zach's personal circumstances. Arkansas law mandates that custody evaluations focus on current conditions and the children's best interests, not speculative future changes.

The final order includes a springing provision that automatically alters primary physical custody upon the occurrence of a specified event, which is deemed contrary to Arkansas law. This parallels the reversal of an automatic escalation clause for alimony in *Kelly v. Kelly*. Additionally, in *Acre v. Tullis*, the court found a similar agreement unenforceable, emphasizing that the child's best interest is paramount in custody decisions. Judge Murphy's concurrence highlights that such self-executing provisions disregard the necessity for a court to assess the child's best interests at the time of the event triggering the custody change, making the provision unenforceable. The court has consistently rejected agreements that provide for automatic custody changes, and allowing such a provision would eliminate the trial court's role in determining the best interests of the children at the time of the change.

Regarding the modification of child-related expenses, the trial court altered the parties' prior agreement by stating that certain costs would be shared equally and eliminated Zach's required payment to Lyndsay for expenses. Lyndsay contends that the trial court lacked authority to modify the contractual agreement and that Zach did not provide sufficient evidence of his inability to pay the expenses. She asserts that financial obligations from the parties' prior agreement were merged but not incorporated into the decree, and she seeks reversal of the trial court’s findings indicating that modifications were warranted due to co-parenting conflicts and financial burdens on Zach.

Revisiting financial responsibilities for children's needs is essential for ensuring adequate resources for clothing, trips, and activities. Tuition, uniforms, and school supplies payments are to follow the stipulations in Paragraphs 9 and 34, healthcare expenses shall be equally divided as per Paragraph 30, and extracurricular costs will be split according to Paragraph 33. Lyndsay argues that the trial court improperly modified provisions regarding tuition and activity fees, seeking to reverse and remand the decision concerning Paragraphs 33, 34, and 42 while maintaining the original agreement outlined in Paragraphs 17, 19, and 20 of the Decree. Citing *Darcey v. Matthews*, it is emphasized that a court cannot alter an independent contract included in a divorce decree. The court must adhere to the clear intentions expressed in written agreements. In *Darcey*, the obligation for medical expenses was deemed separate from child support, and modifications requiring equal sharing were ruled impermissible. In this case, Lyndsay contends that the trial court erred in altering the agreement to state that Zach must consent before incurring tuition or extracurricular fees, which contradicts the original intent to split these costs without preconditions. Consequently, the court agrees that the trial court's modifications were erroneous, specifically reversing the contested provisions while affirming other aspects.