Wymer v. Hutto

Cite as 2014 Ark. App. 497

ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-14-170

DAYLE C. WYMER Opinion Delivered September 24, 2014
APPELLANT
APPEAL FROM THE PULASKI
V. COUNTY CIRCUIT COURT,
NINTH DIVISION
[NO. DR2008-5465]
LORI C. HUTTO
APPELLEE HONORABLE MARY SPENCER
MCGOWAN, JUDGE

AFFIRMED

PHILLIP T. WHITEAKER, Judge

Appellant Dayle C. Wymer appeals a Pulaski County Circuit Court order awarding

a change in custody of his minor child to his former wife, Lori Hutto. He raises two points

on appeal: (1) that the trial court improperly limited his introduction of evidence and (2) that

the trial court erred in finding that it was in the best interest of the child to grant custody to

Hutto. Finding no error, we affirm.

For his first point on appeal, Wymer asserts that the trial court improperly limited his

introduction of evidence. He maintains that the trial court mistakenly considered this to be

a relocation case and, as a result, improperly excluded evidence concerning the best interest

of the child. Wymer, however, failed to proffer the evidence he contends was improperly

excluded. To challenge a ruling excluding evidence, an appellant must proffer the excluded

evidence so the appellate court can review the decision, unless the substance of the evidence
Cite as 2014 Ark. App. 497

is apparent from the context. Swadley v. Krugler, 67 Ark. App. 297, 999 S.W.2d 209 (1999).

Wymer’s failure to proffer the testimony he believed should have been introduced prevents

our review.

For his second point of appeal, Wymer argues that the trial court erred in awarding

Hutto primary physical custody of L.W. 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 child. See Singletary v. Singletary, 2013 Ark.

506, 431 S.W.3d 234. Here, the court held that Hutto’s remarriage and her subsequent move

to Shirley, Arkansas, resulted in a material change of circumstances. Wymer does not contest

this finding.

Wymer’s only challenge to the modification is the trial court’s determination that it

was in the child’s best interest to place primary physical custody with Hutto. Arkansas law

is well settled that the primary consideration in child-custody cases is the welfare and best

interest of the children; all other considerations are secondary. Anderson v. Thomas, 2013 Ark.

App. 653.

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

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

preponderance of the evidence. See Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d 520 (1999).

We give due deference to the superior position of the circuit court to view and judge the

credibility of the witnesses. See id. This deference to the circuit court is even greater in cases

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Cite as 2014 Ark. App. 497

involving child custody, as a heavier burden is placed on the circuit court to utilize to the

fullest extent its powers of perception in evaluating the witnesses, their testimony, and the best

interest of the children. See id.

A de novo review of the evidence reveals that Wymer and Hutto were divorced in

December 2009. At the time of the divorce they had two children, C.W. and L.W. As a part

of the divorce, the parties, who both lived in Little Rock, Arkansas, agreed to share joint

physical and legal custody of their two children, utilizing a schedule that allowed them to each

have equal time with the children. The parties additionally agreed that should either one

move so as to necessitate a modification of the custody arrangement or visitation, such a move

shall be considered a change in circumstances sufficient to justify a request for modification.

These terms were included in the final decree of divorce entered by the Pulaski County

Circuit Court.

Several years after the divorce, Hutto remarried and moved to Shirley, Arkansas.

However, for approximately two years, Hutto maintained an apartment in Little Rock so that

she could fulfill her obligations under the joint-custody arrangement, while allowing time for

her children to adjust to the new relationship, which included her husband’s three children.

In February 2013, Hutto filed a petition to modify the child-custody arrangement to

allow her to relocate with the children to Shirley, Arkansas. She alleged the move constituted

a material change of circumstances and sought primary custody of the children. Wymer

responded to the petition, agreeing that there was a material change of circumstances but

requesting that primary custody of the children be placed with him. The parties subsequently

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Cite as 2014 Ark. App. 497

agreed that Wymer would retain physical custody of C.W. so that she could finish her senior

year at her current school, but proceeded to a hearing as to the custody of L.W. After

hearing testimony and the arguments of counsel, the trial court entered an order finding a

material change in circumstances and that it was in the best interest of L.W. for Hutto to have

primary custody of her with liberal visitation privileges being granted to Wymer.

In its order, the trial court focused on several facts to support its ruling. The trial court

found that, upon relocation, L.W. would be living with Hutto, her new husband, and his

three daughters—one of whom is near in age to L.W. The court further found that Hutto

and her husband had spent the last few years working to blend their two families, and that

relocation to Shirley would allow L.W. to foster her relationship with her stepsisters and to

make new friends.

By contrast, the court noted that C.W. and L.W. were seven years apart in age and,

while close, the age difference at that time in their lives was significant. The court noted that

C.W. would soon be graduating from high school and attending college, and thus, separation

of the two siblings was less troublesome. The court further noted that, as C.W. was

responsible for babysitting L.W., a change of custody would further enable C.W. to

concentrate on her education and her last semester in high school.

As for L.W.’s education and extracurricular activities, the court expressly considered

the evidence presented by Hutto that L.W. could receive a quality education in the Shirley

schools and that there would be many activities available to L.W. there, including soccer in

a nearby community.

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It is clear from our de novo review of the record that both parents in this case are

good, loving parents, and the trial court even commended them several times for their efforts

in maintaining a true joint physical-custody approach with the children. The trial court

considered the evidence presented above, which is supported by the record, and determined

that it was in the best interest of the child to place custody with Hutto. As stated above, we

give great deference to circuit court findings in cases involving child custody, as a heavier

burden is placed on the circuit court to utilize to the fullest extent its powers of perception

in evaluating the witnesses, their testimony, and the best interest of the child. Hamilton, supra.

We will not reverse unless those findings are clearly against the preponderance of the

evidence. Id. Based on the record before us and our standard of review, we hold that the trial

court did not commit clear error.

Affirmed.

GRUBER and VAUGHT, JJ., agree

Lisa Jones Ables, for appellant.

Worsham Law Firm, P.A., by: Brooke F. Steen, for appellee.

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