Mason v. Robertson

Cite as 2017 Ark. App. 370

ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-17-2

Opinion Delivered June 7, 2017

TONYA MASON (F/K/A APPEAL FROM THE WHITE
ROBERTSON) COUNTY CIRCUIT COURT
APPELLANT [NO. 73DR-08-163]

V. HONORABLE CRAIG HANNAH,
JUDGE
JONATHAN CHRIS ROBERTSON
APPELLEE AFFIRMED

BRANDON J. HARRISON, Judge

Tonya Mason appeals the circuit court’s order setting visitation and child support.

She argues that the circuit court erred in (1) finding that she is required to have a nanny

present for visitation with her son, L.R.; (2) limiting her to one additional visitation per

month with her son; and (3) finding that her ex-husband, Jonathan Robertson, expends

$3900 per month in extraordinary expenses for L.R. We affirm.

The parties divorced in August 2008 after an eight-year marriage, and they have two

children: eight-year-old L.R., an autistic child with special needs, and two-year-old J.R.

The parties were awarded joint legal and physical custody of L.R.; they were also awarded

joint legal custody of J.R., but Mason received primary physical custody of J.R. Robertson

was ordered to pay $4000 monthly in child support for J.R. He was also ordered to pay up

to $3000 per month for fees associated with L.R.’s nanny care regardless of which party was

taking care of L.R.
Cite as 2017 Ark. App. 370

Over the next several years, the parties continued litigating issues of custody, child

support, and contempt, and in December 2012, an agreed order was entered establishing

Robertson as L.R.’s primary physical custodian. Mason was awarded visitation with L.R.

on alternating weekends from 12:30 p.m. to 4:30 p.m. on Saturday or Sunday. The order

provided that Robertson “will provide services of his Nanny for the visitation and will pay

for the cost, including transportation. If for some reason there is an emergency and their

Nanny is unavailable, [Robertson] will promptly notify [Mason] and will reschedule the

visitation[.]” Regarding child support, the parties agreed to deviate from the child-support

chart “based on the extraordinary medical expenses incurred on behalf of [L.R.].” Mason’s

child-support obligation was $487 per month; however, this was offset against Robertson’s

child-support obligation, leaving him responsible for child support in the amount of $2200

per month.

The current round of litigation began in January 2015, when Robertson petitioned

to modify his child-support obligation. Over the next thirteen months, the parties filed

multiple petitions for contempt, motions to compel, and requests for modification of

visitation and child support. The circuit court held a hearing in March 2016, and after

receiving testimony and arguments from counsel, the court found,

[W]e’re going to reduce [Robertson’s] monthly income by $3,900 because of
the extraordinary expenses that he incurs with the parties’ autistic son, which
included such expenses as the nanny expenses, the pull-ups, the money spent
driving him around, some Sunshine School expenses, some positive
reinforcers, sensory supplies, the insurance expense, a small allowance for
repairs that are going to have to be made periodically to the home because of
the son’s disability, and a small allowance for some additional expenses for
vacation.

2
Cite as 2017 Ark. App. 370

The court also found that Mason could request additional visitation, with two weeks’ prior

notice, but advised her to exercise her visitation on schedule as much as possible. The court

stated several times that the parties “have got to learn how to communicate. You have got

to follow the order.” Mason also raised the possibility of hiring her own nanny instead of

relying on the availability of Robertson’s nanny for visitation, and the court stated, “If you

can show me that it won’t harm this child to do that, then I won’t have a problem with it.”

The court entered a written order in August 2016 that included the following

findings:

8. That Defendant must provide two (2) weeks advance notice to Plaintiff
when requesting additional visitation. In the event a nanny is unavailable for
Defendant’s requested date, Plaintiff must make the minor child and nanny
available at the soonest available time. Defendant may only exercise one (1)
additional visitation per month and that visitation is not to be used to replace
a missed visitation.

....

10. From the testimony taken in Court has found [sic] that the Plaintiff
expends an average of $3,900.00 each month for extraordinary expenses
regarding the minor child, [L.R.]. Those expenses are for the payments to
nannies, pull-ups, Sunshine Academy tuition, gas for driving the minor child
around to soothe him, positive reinforcement tools, medical insurance,
medical costs, repairs to the home caused by the minor child and cost of
additional care for vacation. The Court arrived at this number by taking an
average of those expenses over the last three (3) years. The Court finds that
the Plaintiff is entitled to a reduction in his child support of forty-five percent
(45%) of said amount.

Going forward, the Parties should use a rolling three (3) year average
dropping off the latest year and adding the current year to adjust the $3,900.00
amount. The $3,900.00 a month cannot exceed or be lowered by six percent
(6%) increase annually without either Party requesting further relief from the
Court.

This Court has found that the Plaintiff has gross income for 2015 of
$520,433.00 and is entitled to allowable deductions totally [sic] $175,650.00
3
Cite as 2017 Ark. App. 370

leaving him a take-home pay per month of $28,686.00 which translates to a
child support obligation of $4,250.00 for him less an imputed child support
obligation of the Defendant of $623.00 ($65,000.00 gross minus 25% for
taxes). From that the Court deducts forty-five percent (45%) of the $3,900.00
average for special expenses leaving a child support obligation to the Plaintiff
for the minor child, [J.R.], of $1,950.00 effective May 1, 2016.

Mason has timely appealed from this order.

The same standard of review applicable to the modification of custody applies to the

modification of visitation. We consider the evidence de novo. Baber v. Baber, 2011 Ark.

40, 378 S.W.3d 699. We will not reverse the circuit court’s findings unless they are clearly

erroneous. Id. When the question of whether the circuit court’s findings are clearly

erroneous turns largely on the credibility of the witnesses, we give special deference to the

superior position of the circuit court to evaluate the witnesses, their testimony, and the

child’s best interest. Id.

Mason first argues that the circuit court erred in finding that she is required to have

a nanny present for visitation with L.R. As noted above, the 2012 agreed order provided

that Robertson “will provide services of his Nanny for the visitation and will pay for the

cost, including transportation. If for some reason there is an emergency and their Nanny is

unavailable, [Robertson] will promptly notify [Mason] and will reschedule the visitation[.]”

At the March 2016 hearing, Mason argued that this language did not require a nanny to be

present for visitation, but the court disagreed and said, “my understanding of that order was

that the nanny was going with the minor, because it was necessary. . . . I interpreted the

order to mean that he was paying for it because of the autism, that the nanny was going.”

Mason now argues that this interpretation “denies [her] access to her child unless her

former husband provides nanny services for the visit.” She contends that she has never been
4
Cite as 2017 Ark. App. 370

found unfit and that the court never made a finding that L.R. requires the services of any

specialized caregiver. Therefore, she argues, the court’s imposition of the nanny

requirement is not supported by any change in circumstances and was an abuse of discretion.

We disagree with Mason’s argument. First, the 2012 order essentially states that a

nanny shall be present when Mason exercises visitation, otherwise it will be rescheduled,

and Mason agreed to that. Thus, the circuit court did not err in interpreting the 2012 order

to require a nanny to be present for Mason’s visitation with L.R. It is true that Mason is

not an unfit parent, and the circuit court may not have made a specific finding about a

“specialized caregiver,” but it did mention more than once the importance of consistency

when dealing with an autistic child and that “it really needs to be the same nanny if at all

possible.” Finally, contrary to Mason’s assertion, the circuit court was open to the possibility

of Mason hiring her own nanny for visitations if Mason can show that it will not negatively

affect L.R. Thus, we hold that the circuit court did not clearly err in its ruling.

Mason next argues that the circuit court erred in limiting her to one additional

visitation per month. The 2012 agreed order provided that Mason “may have additional

visitation as agreed upon by the Parties” and that Mason would pay the cost of the nanny

for the additional visitation. At the March 2016 hearing, the circuit court stated that it was

modifying the provision on the additional visitation because the parties could not

“communicate well enough just to say additional visitation if you ask and it’s agreed upon.”

As explained above, the court found that Mason could request additional visitation two

weeks in advance, but the court made clear that it did not want this additional visitation to

be used to make up missed visitation: “[I]f every time she misses then she asks for this

5
Cite as 2017 Ark. App. 370

additional visitation, I’m going to frown upon that. I’m going to come back and say no,

that’s not right. . . . I just don’t want that to be on a consistent basis; every time I miss I’m

going to ask for additional visitation.” The written order allowed Mason one additional

visitation per month and noted that “that visitation is not to be used to replace a missed

visitation.”

Now, on appeal, Mason argues that there was no finding in the August 2016 order

that “justified these modifications to the Court’s previous orders regarding additional

visitations,” so the court clearly erred. But Mason’s argument ignores the primary reason

for the modification: the parties’ inability to communicate, on which the court made clear

findings. For example: “I don’t think the parties can communicate well enough just to say

additional visitation if you ask and it’s agreed upon.” “I think both of you have been

disingenuous to this Court on a lot of things, because you-all don’t like each other. That’s

real clear. You-all cannot communicate.” “I don’t know exactly what’s going on, but you

cannot communicate. So common sense kind of goes out the window and all we’re left

with is this order, and we have to hold everyone’s feet to the fire and follow it as closely as

possible[.]”

A circuit court maintains continuing jurisdiction over visitation and may modify or

vacate those orders at any time when it becomes aware of a change in circumstances or facts

not known to it at the time of the initial order. Baber, supra. The primary consideration

regarding visitation is the best interest of the child. Id. Important factors the court considers

in determining reasonable visitation are the wishes of the child, the capacity of the party

desiring visitation to supervise and care for the child, problems of transportation and prior

6
Cite as 2017 Ark. App. 370

conduct in abusing visitation, the work schedule or stability of the parties, and the

relationship with siblings and other relatives. Id. Fixing visitation rights is a matter that lies

within the sound discretion of the circuit court. Id. Considering this standard of review on

setting visitation and the circuit court’s numerous findings on the parties’ inability to

communicate, we affirm the circuit court’s ruling.

For her final point on appeal, Mason asserts that the circuit court erred in finding

that Robertson expends $3900 per month in extraordinary expenses for L.R. As noted

above, the parties agreed in 2012 to deviate from the child-support chart based on the

“extraordinary medical expenses” that Robertson incurred on behalf of L.R. That order

noted that the parties “deducted the cost for insurance ($718.00 per month), one-half (1/2)

of the costs for nannies, other than monies paid to Plaintiff’s spouse for [L.R.]’s care ($700.00

per month), and one-half (1/2) of over the counter medications, diapers, and other items

required for [L.R.]’s care (an agreed upon estimate of $150.00 per month).” These

expenditures totaled $1568 per month.

In January 2015, Robertson asked that his child-support obligation be further

reduced or eliminated because his expenses for L.R. had increased. At the March 2016

hearing, Robertson testified and introduced an exhibit detailing his expenses for L.R.,

including the nanny, Pull-Ups, bathroom supplies, pool care, clothes, positive reinforcers,

and sensory supplies, which he said totaled over $4400 per month.

The court decided to credit Robertson with $3900 in extraordinary expenses,

specifically for “payments to nannies, pull-ups, Sunshine Academy tuition, gas for driving

the minor child around to soothe him, positive reinforcement tools, medical insurance,

7
Cite as 2017 Ark. App. 370

medical costs, repairs to the home caused by the minor child and cost of additional care for

vacation.” The court explained that it arrived at this number by taking an average of those

expenses over the last three years and that the parties should use a rolling three-year average

of these expenses to adjust the $3900 amount each year. Ultimately, Robertson’s child-

support obligation was reduced from $2200 to $1950.

On appeal, Mason argues that the court’s order is not supported by the evidence and

lacks specificity. We disagree. The court’s order was supported by Robertson’s testimony

and the exhibits introduced at the hearing, and the court specified which expenses were

included in its computation. In child-support determinations, the amount of child support

lies within the sound discretion of the circuit court, and the lower court’s findings will not

be reversed absent an abuse of discretion. Ward v. Doss, 361 Ark. 153, 205 S.W.3d 767

(2005). We hold that the circuit court did not abuse its discretion in this case and affirm.

Affirmed.

VAUGHT and BROWN, JJ., agree.

Dodds, Kidd & Ryan, by: Catherine A. Ryan, for appellant.

Robert Hudgins, for appellee.

8