The opinion
Cite as 2020 Ark. App. 558
Reason: I attest to the
accuracy and integrity of this
ARKANSAS COURT OF APPEALS
document
Date: 2021-08-23 13:20:28
Foxit PhantomPDF Version: DIVISION I
9.7.5 No. CV-20-10
Opinion Delivered December 9, 2020
CRYSTAL HOLIMAN APPEAL FROM THE GRANT
APPELLANT COUNTY CIRCUIT COURT
[NO. 27DR-11-24]
V.
HONORABLE CHRIS E WILLIAMS,
WILLIAM BRENT HOLIMAN AND JUDGE
OFFICE OF CHILD SUPPORT
ENFORCEMENT
APPELLEES REVERSED AND REMANDED
BRANDON J. HARRISON, Judge
Crystal Holiman appeals the circuit court’s decision to deny her petition for
relocation and to grant joint custody of the parties’ two children to her and the children’s
father, Brent Holiman. She also challenges the court’s decision to abate child support that
Brent was paying. Crystal’s primary argument, however, is that the circuit court erred in
rejecting the presumption in favor of relocation established in Hollandsworth v. Knyzewski,
353 Ark. 470, 109 S.W.3d 653 (2003). We agree; therefore, we reverse and remand for
further proceedings.
The parties were divorced in November 2012. The related decree provided that
Crystal would have “primary physical custody” of the parties’ two children, BH and CH,
and the parties would share “joint legal custody.” Brent exercised visitation generally one
or two days a week. In February 2019, Crystal petitioned to relocate to Finland with the
1
children. In response, Brent petitioned for a change of custody and asserted that it was not
in the children’s best interest to move out of the country with their mother.
The circuit court convened a hearing on 15 May 2019, and after receiving testimony,
took the case under advisement. Two weeks later the court issued a letter opinion to the
parties. In that letter, the court stated:
To apply Hollandsworth to these facts could lead to allow a mother to
move without the ability to return with the children in the future. Ultimately
to do so would eliminate the best interest analysis which has long been the
polestar for issues involving child custody and relocation matters. To take this
majority position of our courts would be arbitrary and capricious. Singletary
and Jones would not apply and to follow Hollandsworth a presumption would
have to be overcome by a purported noncustodial parent who was behind on
support by .24 cents. This Court will not dwell on this hypocrisy and burden
shifting court order presumptions are not favored in our law. The polestar
should always be fair and just decision on what is in the best interest of two
young impressionable children by parents and their actions.
Nothing about these facts support a thought of some presumption
developed out of the whole of a cloth. Here it is in the best interest of these
children to not relocate and continue not only joint legal custody but also
joint custody of [the] children by both parties with the father’s extended
family. Mother has very little to do with her mother or brother and joint
custody shall be granted. Mother is not stable both mentally and financially
to move to Finland on such sketchy facts and relocation is denied. Father
needs to be more involved with children’s activities so change of custody is
denied.
In September 2019, the court entered a written order that incorporated these findings and
denied Crystal’s request to relocate. A separate order abated all child support effective 10
June 2019. Crystal has timely appealed both orders.
In determining whether a parent may relocate with a minor child, a circuit court
must generally look to the principles set forth in Hollandsworth, 353 Ark. 470, 109 S.W.3d
2
653. In that case, our supreme court pronounced a presumption in favor of relocation for
custodial parents with sole or primary custody; the noncustodial parent was given the burden
of rebutting the presumption. Id. at 485, 109 S.W.3d at 663. The Hollandsworth
presumption should be applied only when the parent seeking to relocate is not only labeled
the “primary” custodian in the divorce decree but also spends significantly more time with
the child than the other parent. Cooper v. Kalkwarf, 2017 Ark. App. 331, 532 S.W.3d 58.
Crystal argues that the circuit court erred in refusing to apply the Hollandsworth
presumption and in not requiring Brent to rebut it. Instead, says Crystal, the court expressly
rejected applying the presumption and found that relocation was not in the children’s best
interest. Brent responds that “[d]espite the circuit court’s disdain for the majority position
of our courts[,]” the court reached the correct conclusion that relocation was not in the
children’s best interest. Brent also contends that he presented sufficient evidence to rebut
the presumption.
The circuit court acknowledged that Hollandsworth was the governing law but did
not apply it. The court noted that Brent would be required to rebut the presumption but
chose to not enforce that requirement. We must follow the precedent set by the supreme
court. Watkins v. Ark. Elder Outreach of Little Rock, Inc., 2012 Ark. App. 301, 420 S.W.3d
477. Therefore, we remand to the circuit court to conduct a new hearing, apply the
controlling law, and make the findings it deems appropriate in its judgment.
Our reversal on this point also requires a reversal of the circuit court’s related
decisions to award joint custody and abate child support. As something of an aside, we note
3
that the circuit court’s letter opinion and order do not identify a material change of
circumstances warranting a change of custody, and both parties agree that the court should
be reversed on these issues.
Crystal also challenged the circuit court’s decision to not admit an alleged
employment agreement she had with the Finnish employer. On this point we make no
ruling except to say that the circuit court, in its discretion, may reconsider whether to admit
as evidence Crystal’s letter of employment and her employment contract should the issue
arise again. Finally, we also decline to address the issue of Brent’s cooperation in obtaining
passports as the circuit court did not rule on this issue. Any discussion or analysis by this
court at this time would be advisory. Quapaw Care & Rehab. v. Ark. Health Servs. Permit
Comm’n, 2009 Ark. 356, 325 S.W.3d 269.
Reversed and remanded.
GLADWIN and BROWN, JJ., agree.
Robert S. Tschiemer, for appellant.
Jonathan Huber, for appellee.
4