Cite as 2009 Ark. App. 837 ARKANSAS COURT OF APPEALS DIVISION IV No. CA09-136 JESSICA N. SCHMIT (NOW CHRISP), Opinion Delivered 9 DECEMBER 2009 APPELLANT APPEAL FROM THE BENTON V. COUNTY CIRCUIT COURT, [NO. DR-01-330-5] ROBERT M. SCHMIT, THE HONORABLE XOLLIE APPELLEE DUNCAN, JUDGE AFFIRMED D.P. MARSHALL JR., Judge The parties have gone back and forth about custody of their son since their 2002 divorce. The circuit court granted Chrisp custody in the decree. In 2005, the court granted Schmit’s petition and changed custody to him. In the summer of 2007, the court entered an agreed order expanding Chrisp’s visitation and requiring the parties to communicate only by e-mail. In early December 2007, Schmit e-mailed Chrisp that he intended to relocate around the end of that month to Colorado. Chrisp responded with a motion to change custody back to her. The circuit court denied that motion, finding that no material circumstance had changed. Chrisp appeals. Chrisp says that the period in which she must show a material change covers
Cite as 2009 Ark. App. 837 about five months: from the July 2007 agreed order modifying visitation to her December 2007 motion to modify. She asserts four changes during these five months that support revisiting custody. We see no clear error, however, in the circuit court’s decision finding no material change. Smith v. Smith, 28 Ark. App. 56, 60, 770 S.W.2d 205, 208 (1989). Chrisp argues first that Schmit became mentally unstable in the fall of 2007. The record indicates, however, that Schmit’s “personality disorder, depression and suicidal gestures” dated back many years. To the extent that the medical testimony about his current mental situation conflicted, it was for the circuit court to resolve. Hamilton v. Barrett, 337 Ark. 460, 465, 989 S.W.2d 520, 523 (1999). Likewise, the particulars about two recent allegedly suicidal gestures were disputed. We are not left with the definite and firm conviction that the circuit court erred on this issue. Chrisp argues second that their son’s behavior problems increased. Here again, the record shows that these problems pre-dated the summer of 2007. The circuit court’s decision is not vulnerable on this point. Chrisp next argues that fallout from Schmit’s relocation to Colorado was a material change. She acknowledges Hollandsworth v. Knyzewski, 353 Ark. 470, 476, 109 S.W.3d 653, 657 (2003). In that case, the supreme court “h[e]ld that relocation of a primary custodian and his or her children alone is not a material change in -2-
Cite as 2009 Ark. App. 837 circumstance.” Ibid. Moreover, Arkansas law now presumes that relocation by a custodial parent is in the child’s best interest, and the noncustodial parent must overcome that presumption. Hollandsworth, 353 Ark. at 485, 109 S.W.3d at 663–64. Chrisp emphasizes how this child responded to the planned move, and how Schmit handled telling the child and others about it. If this is an effort to argue around Hollandsworth’s clear rule, it fails as a matter of law. On the facts, no clear error exists in the circuit court’s weighing of the disputed proof about how the move was handled and its effects. Finally, Chrisp argues that material circumstances changed because of the many steps that she says Schmit took in the fall of 2007 and after moving to minimize her role in the child’s life. The court was not convinced that the proof showed anything other than routine disputes about visitation and other details in the child’s life. We see no clear error on this issue either––especially because the circuit court again addressed communication, visitation, transportation, and school information in its order and amended order. Affirmed. GRUBER and HENRY, JJ., agree. -3-
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