The opinion
Cite as 2021 Ark. App. 359
Elizabeth Perry ARKANSAS COURT OF APPEALS
I attest to the accuracy and DIVISION III
integrity of this document No. CV-20-417
2023.07.10 13:30:49 -05'00'
2023.003.20215 Opinion Delivered September 22, 2021
APPEAL FROM THE POPE COUNTY
KRISTINA BONDS (NOW EMMONS) CIRCUIT COURT
[NO. 58DR-14-381]
APPELLANT
V. HONORABLE GORDON W.
“MACK” MCCAIN, JR., JUDGE
CLAY BONDS
APPELLEE REVERSED
WAYMOND M. BROWN, Judge
Appellant Kristina Emmons appeals the Pope County Circuit Court’s order
modifying custody of her two minor children, P.B. and T.B., removing the children from
her custody and placing them in the custody of their father, appellee Clay Bonds. 1 On
appeal, Emmons argues that the circuit court (1) clearly erred in finding a material change
in circumstances, (2) erred in determining that a change in custody was in the children’s
best interest, and (3) abused its discretion in awarding attorney’s fees to Bonds. Because we
agree that no material change in circumstances occurred warranting a change in child
custody, we reverse.
1
We reversed a previous modification of the parties’ child-custody arrangement upon
concluding that no material change in circumstances had occurred. See Bonds v. Bonds, 2017
Ark. App. 518, 529 S.W.3d 671.
The parties divorced in November 2015. The agreed divorce decree awarded
Emmons sole legal custody of the minor children, subject to Bonds’s liberal visitation rights.
In August 2016, Bonds was awarded custody of the minor children. Emmons appealed, and
this court reversed finding that, after a thorough review of the record, there was “no
independent basis for concluding that a material change in circumstances occurred.” 2 Bonds
again moved to modify custody and petitioned for contempt in June 2018, alleging the
following changes in circumstances:
a. While Plaintiff was visiting with both of his minor children, he has taken the
minor child, [P.B.] who is the oldest child to the movies on two separate
occasions. Prior to taking [P.B.] to the movie, he checked the reviews for both
movie [sic], and he did not feel that [T.B.] was old enough to see the movie [P.B.]
wanted to see, although the movies [P.B.] was going to see was appropriate for
his age. While at the movies Plaintiff’s fiancé entertained the minor child [T.B.]
by going out to eat and playing games. [T.B.] was also taken to a different movie
at a different time. When Defendant found out that [P.B.] was taken to the
movie and not [T.B.], Defendant became upset and told the minor child [T.B.]
that his dad was not being fair to him and took [T.B.] to the movies on one
occasion and then to get ice cream on a separate occasion and told [P.B.] that he
was not allowed to go to the movie.
b. Any time that the Defendant inquires if Plaintiff has asked anything about what
is going on at his home, Defendant becomes upset and calls [P.B.] “dad’s little
spy.”
c. [P.B.] reported to the school counselor and his teacher that Barron Shaw
(Defendant’s boyfriend) took his wallet and that he had $11.00 when it was taken
and when it was given back to him the $11.00 was gone.
d. When the minor children first returned to the custody of the Defendant in
December 2017, Defendant was advised by Plaintiff that the minor children were
having a difficult time and that they needed to talk to a counselor. Plaintiff told
Defendant that he was going to contact the school counselor to make them aware
of the situation. Defendant was adamant that the Plaintiff not contact the school
counselor. The discussion was by e-mail between the parties and Defendant took
the e-mail to her attorney who then contacted Plaintiff through his counsel stating
2
Id.
2
that Plaintiff was being accusatory and derogatory towards her. Despite the fact
that Defendant agreed that the minor children needed counseling and that a
counseling appointment was to be made, to Plaintiff’s knowledge none was ever
made with any school counselor or a therapist.
e. Attached are two letters written by [P.B.] as Exhibit “A” and “B”, Exhibit “A”
being written on March 11, 2018 and Exhibit “B” being written on April 22,
2018. The letters detail the fact that [P.B.] has attempted to talk to his mother
regarding him having a bad day and her response was, “Well, fuck, I have been
having a super shitty day.”
f. Rebecca Johnson, [P.B.]’s school counselor forwarded an e-mail to Plaintiff
stating that she had concerns about a poem written by [P.B.] that is attached
hereto as Exhibit “C”. The poem depicts not only [P.B.]’s desires, but he also
states that he hears bad words from his mother.
g. Inappropriate language regarding both Defendant and Barron Shaw has been a
long standing issue between the parties.
h. On January 13, 2018 Plaintiff had the minor children for the weekend and
noticed that [T.B.] had ringworm. The minor child stated that no one was
treating the ringworm and Plaintiff contacted the Defendant and was unaware,
and wanted to see a picture. A picture was sent to her and instructions for treating
the ringworm were sent.
i. On January 27, 2018 while Plaintiff had visitation with his minor children,
[T.B.]’s ringworm was worse and had multiplied from one spot to eight to nine
spots. Defendant asked for pictures, and pictures were sent to her. The minor
child at the time was six years old and Plaintiff suggested that she assist him with
bathing so she could see that the child not only had a ringworm, but that it was
consistently getting worse. Defendant replied that she saw no reason to bathe the
minor child, as he is old enough to bathe himself.
j. February 10, 2018 the minor children were back for visitation with the Plaintiff
and [T.B.] had head lice. Again, Defendant was not aware and Plaintiff suggested
that someone help him bathe so that these issues would not go unnoticed. The
response to Plaintiff was that he was old enough to bathe himself and she would
not be helping him. Eventually, she did concede that she would help him dry
off. See attached Exhibit “D” and “E”.
k. On the youngest child [T.B.]’s birthday, Defendant asked the minor child who
he wanted at his birthday party. [T.B.] told Defendant that he did not want his
older brother [P.B.] to be invited. Defendant told [P.B.] that it was [T.B.]’s
birthday and he got to choose who was invited. Believing that it was a party for
3
first graders, Plaintiff inquired only to find out that it was a sleep over and that
[T.B.], Barron Shaw’s two children and his two cousins were invited, and that
he was the only family member that did not get invited. [P.B.] was sent to a
friend’s house to stay the night. He was provided a piece of cake the next day.
l. On February 28, 2018 Plaintiff inquired about the minor child [T.B.]’s progress
report and Defendant stated that he did not get one, that he only had some testing
reports. Plaintiff contacted [T.B.]’s teacher asking about the grades since he did
not receive a progress report. The teacher e-mailed back that he did receive a
progress report and that it had been sent home the previous week. See Exhibit
“F” and “G”. The following day the Plaintiff asked the Defendant for screenshots
of the testing reports. The Defendant sent screen shots along with the progress
report that she previously said she did not receive. [T.B.] was falling behind in
Benchmark on his reading level.
m. On April 20, 2018 the minor children came to the Plaintiff for their regular
visitation weekend. The minor child [P.B.] was wearing women’s jeans that were
too big for him. Plaintiff confirmed online that they were women’s jeans and
sent the minor child home in jeans from his home. Defendant insisted that they
were not women’s jeans, although Plaintiff sent the Defendant a photo of the
jeans along with a screen shot of an internet search showing that they were
women’s jeans.
n. On May 4, 2018 it was discovered that [P.B.] had a ringworm.
o. The minor child has told the Plaintiff the following statements:
I. “I feel like I am invisible there. I feel like I am a satellite in space.”
II. “I am not happy there and my mom is mad at me a lot.”
p. The minor child [P.B.] was playing with friends that live near him and they had
been walking around the neighborhood. They had been to a pond a couple of
times and he said that it took him 30 minutes to get to the pond and that and [sic]
he got separated from the boys and got lost when trying to get back home. [P.B.]
reported that his two friends that he eventually got separated from had knives in
case anything tried to attack them. [P.B.] stated that it took him an hour to return
home after he got lost. When confronted, Defendant stated that she did not
know that he was at the pond and that he had previously been told not to go
there and was unaware of any knives. The Defendant became upset at [P.B.],
not for going to the pond against her wishes or direct statements, but because he
had told his dad about the incident. When the minor child went back to the
Defendant’s home, the Defendant stated that they had to take a walk to the pond
because of his “big fat mouth.”
4
The motion to change custody alleged that the foregoing instances “represent a change of
circumstances, and it would be in the children’s best interest that custody be placed with
the Plaintiff.” In her response to Bonds’s motion to modify custody, Emmons denied any
material change of circumstances justifying modification of the parties’ order of custody and
requested that the petition be dismissed pursuant to Rule 12(b)(6) of the Arkansas Rules of
Civil Procedure for failure to state a claim upon which relief could be granted.
The circuit court held the initial part of the custody hearing on October 1–2, 2019.
On the second day of the hearing, the court appointed attorney ad litem Mark Carter for
the minor children and continued the case to December 3. Among the ad litem’s
recommendations filed with the court on December 12 were the following: He was unable
to conclude there had been a material change in circumstances and could not “in good
conscience state that it would be in either child’s best interest” to modify custody. He noted
that P.B. had a strong preference to live with his father, while T.B. had no preference. The
ad litem stated that family counseling would be in the best interest of the children as well as
individual counseling for P.B. He additionally stated that the actions of both parents, the
“mother’s continued derogatory statements about his father, and his father’s encouragement
to write down, date, and review [P.B.]’s recollection of these statements are damaging to
the child.” While observing Emmons’s and Bonds’s disdain for one another, the ad litem
remarked that both “individually, appear to be loving parents to [P.B.] and [T.B.].”
On December 19, the circuit court entered an order granting Bonds’s motion to
modify custody. Emmons now appeals.
5
In reviewing child-custody cases, we consider the evidence de novo, but we will not
reverse the circuit court’s findings unless they are clearly erroneous or clearly against the
preponderance of the evidence. 3 A finding is clearly erroneous when, although there is
evidence to support it, the reviewing court is left with the definite and firm conviction that
a mistake has been made. 4 It is well settled that the primary consideration is the welfare and
best interest of the child, while other considerations are merely secondary. 5 We give special
deference to the superior position of the circuit court to evaluate and judge the credibility
of the witnesses, and this deference to the circuit court is even greater 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 children. 6
For her first point on appeal, Emmons argues that the circuit court’s finding that
there was a material change in circumstances sufficient to warrant a modification of custody
was clearly erroneous. 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. 7 Generally, courts impose more stringent standards for modifications in custody
3
McNutt v. Yates, 2013 Ark. 427, 430 S.W.3d 91.
4
Boudreau v. Pierce, 2011 Ark. App. 457, 384 S.W.3d 664.
5
McNutt, supra.
6
Id.
7
Harris v. Harris, 2010 Ark. App. 160, 379 S.W.3d 8.
6
than they do for initial determinations of custody in order to promote stability and
continuity in the life of the child and to discourage repeated litigation of the same issues. 8
The party seeking modification of the custody order has the burden of showing a material
change in circumstances. 9 In order to change custody, the circuit court must first determine
that a material change in circumstances has occurred since the last order of custody; if that
threshold requirement is met, it must then determine who should have custody, with the
sole consideration being the best interest of the children. 10 Determining whether there has
been a change of circumstances requires a full consideration of the circumstances that existed
when the last custody order was entered in comparison to the circumstances when the
change of custody is considered. 11 The circuit court’s findings on whether a material change
in circumstances warrants a change in custody will not be reversed on appeal unless they are
clearly erroneous. 12
In the order entered on December 19, 2019, the circuit court found “that there has
been a material change of circumstances since the entry of the last Order, and finds that it is
in the best interest of the minor children that they be placed in the custody of [Bonds].”
The order further provided,
During the course of this trial I paid careful attention to each witness,
observing their demeanor and comparing their presentation to the other testimony
8
Grisham v. Grisham, 2009 Ark. App. 260.
9
Alphin v. Alphin, 364 Ark. 332, 219 S.W.3d 160 (2005).
10
Tipton v. Aaron, 87 Ark. App. 1, 185 S.W.3d 142 (2004).
11
Carver v. May, 81 Ark. App. 292, 101 S.W.3d 256 (2003).
12
Shannon v. McJunkins, 2010 Ark. App. 440, 376 S.W.3d 489.
7
and evidence submitted. The purpose of this observation was to determine the
truthfulness of each witnesses’ testimony and the weight to be aforewarded [sic] same.
As among the parties and the eldest child, the mother was by far the least
credible. To some extent this finding is based on her physical response during cross
examination. In addition there were inconsistencies in her testimony and a lack of
corroboration by other evidence with regard to at least one of the central themes to
her case.
It was undisputed that the parties had not communicated verbally with one
another for years and that communication was via text and e-mail. Time and again
the mother asserted the father had engaged in communications with the mother that
were harsh, demeaning and consistently negative toward the mother. All of this
occurring during the time that the parties were communicating via text and e-mail.
There was not a single piece of documentary evidence of a text, e-mail or other
written communication that came close to evidencing the use of the complained of
action on the part of the father.
In addition to the mother’s lack of veracity this Court finds that she has
exhibited callousness toward the eldest child that leaves this Court with the distinct
impression she simply doesn’t like the child. The mother’s failure to act on the eldest
child’s indication of self-loathing and self-harm, particularly in light of her
professional training that would warrant immediate and specific action is indicative
of this Court’s perception of dislike of the eldest child by the mother. Further the
mother’s snide remarks to the child regarding his testimony in Court are found to be
credible as alleged by the child and are consistent with the mother’s underlying
contempt for the young man. The mother’s failure to notify the father of the child’s
statements regarding self-loathing and self-harm is one of the worst examples of
parental failure to co-parent that I’ve seen.
In its order modifying custody, the circuit court largely concentrated its attention on
Emmons’s lack of credibility, pointing out “inconsistencies” in her testimony and detailing
the lack of evidence of the harsh treatment Emmons suffered by Bonds. We give due
deference to the circuit court’s credibility determinations in custody cases because 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. 13
13
McNutt, supra.
8
However, Emmons’s credibility, or lack thereof, alone, does not amount to a material
change in circumstances sufficient to warrant a change in child custody. The question still
remains—Emmons’s credibility aside—has there been a material change in circumstances
since entry of the last order of custody? While we do not ignore the inappropriateness of
harsh and profane language in the presence of minor children or negative comments
regarding the other parent, nor do we take lightly P.B.’s self-harm statement, we hold that
the answer is no. There is insufficient evidence to support a custody modification in the
particular case before us.
Addressing the circuit court’s findings regarding P.B.’s statement of self-harm and
deeming Emmons’s failure to seek counseling for him as parental failure and “consistent
with the mother’s underlying contempt for the young man,” we note that the statement
was made to Emmons’s mother, Janice Emmons, while P.B. was in Bonds’s primary
custody. Also, as Janice testified at the custody hearing, P.B. made the self-harm statement
out of frustration in response to an incident that occurred with Bonds and stated, “I can’t
ever do anything right.” Furthermore, although Emmons did not secure individual
counseling for P.B. following his self-harm statement, the record is replete with instances in
which she requested family counseling, yet Bonds refused.
Regarding Bonds’s parental-alienation argument, Bonds contends that Emmons has
engaged in a pattern of trying to alienate him from P.B. and T.B. He asserts that Emmons
makes derogatory comments about him in front of the minor children, calls him names such
as “asshole” and “bitch,” and does not support P.B.’s relationship with Bonds. Parental
9
alienation can be grounds for a change of custody. 14 Whether one parent is alienating a
child from the other parent is an important factor to be considered in change-of-custody
cases. 15 When the circuit court finds that a custodial parent is attempting parental alienation,
it is unnecessary that the custodial parent complete the process before the circuit court is
justified in changing custody. 16
Here, the circuit court’s order modifying custody was not based on a specific finding
of parental alienation; nor do we, from our independent review of the record, find sufficient
evidence to modify the parties’ child-custody arrangement based on such a finding. We are
also unpersuaded by the authorities cited by Bonds in support of his parental-alienation
argument. In Turner v. Benson, 17 we held that the circuit court’s finding of parental
alienation was supported by the evidence. Again, in the case at bar, the circuit court did
not find that a pattern of parental alienation constituted a material change in circumstances.
Moreover, in Turner, the mother was interfering with the father’s visitation with the
children, and her animosity toward the father had already led one of the parties’ children to
become emotionally detached from him. Here, there was no testimony that Emmons
withheld visitation from Bonds nor was there evidence that his bond with the children was
suffering.
14
Hanna, 2010 Ark. App. 58, 377 S.W.3d 275.
15
Id.
16
Id.
17
59 Ark. App. 108, 953 S.W.2d 596 (1997).
10
Bonds also cites Szwedo v. Cyrus, 18 in which this court affirmed the circuit court’s
finding of a material change in circumstances based on the increased “frequency of the
alienating behaviors” and the “negative impact it is having on the children.” Again, the
case at hand is distinguishable, as there is no evidence that the minor children have been
negatively impacted by Emmons’s alienating conduct, as alleged by Bonds. Here, according
to testimony provided at the hearing, the children are doing well academically, behaviorally,
and socially. T.B.’s third-grade teacher, Terri Varner, testified that T.B. was chosen to
receive the student-of-the-month award based on his respectful behavior. T.B. excels in
math, and although he struggles with reading fluency, he is progressing. Likewise, Shelly
McCain, T.B.’s second-grade teacher, testified that T.B. does well in math; however,
reading does not come as easily for him. Neither teacher expressed concerns with T.B.’s
hygiene, home life, or behavior. By all testimony, P.B. excels academically. P.B.’s school
counselor, Chad Roberts, described P.B.’s grades as “fantastic” and observed no issues with
P.B.’s behavior or emotional well-being. The undisputed testimony was that P.B. is very
social and outgoing, has many friends, and participates in several extracurricular activities.
Even Bonds acknowledged that P.B. does well academically and behaviorally. Further, the
court-appointed ad litem, the only neutral party in the case, stated in his letter to the circuit
court, “I cannot in good conscience state that it would be in either child’s best interest” to
modify custody and place P.B. and T.B. in the custody of Bonds. We find no merit to
support Bonds’s argument that Emmons’s conduct amounted to parental alienation
18
2020 Ark. App. 319, 602 S.W.3d 759.
11
constituting a material change in circumstances sufficient to warrant a change in child
custody.
While our case law permits us to review the record and determine whether there
was sufficient evidence from which the circuit court could have found a change in
circumstances, after a thorough review of the record, we find no independent basis for
concluding that a material change in circumstances occurred. Therefore, we reverse on this
point.
Emmons next argues that the circuit court erred in determining that a modification
of custody was in the children’s best interest. However, we need not address this argument
because we hold that the circuit court’s finding that a material change in circumstances
occurred was clearly erroneous.
Lastly, Emmons argues that the circuit court abused its discretion in awarding
attorney’s fees to Bonds. She asserts that Bonds was not entitled to attorney’s fees because
he failed to (1) establish a material change in circumstances and (2) timely file a motion for
attorney’s fees.
We review a circuit court’s decision regarding an award of attorney’s fees in a
domestic-relations case for an abuse of discretion. 19 Bonds contends that he is “the
prevailing party in all aspects of this litigation,” and the determination of a prevailing party
by the circuit court is a relevant consideration when choosing to award fees. 20 However,
because we reverse the circuit court’s modification of the parties’ custody order, we also
19
Foster v. Foster, 2016 Ark. 456, 506 S.W.3d 808.
20
See Folkers v. Buchy, 2019 Ark. App. 30, 570 S.W.3d 496.
12
reverse the award of attorney’s fees. We need not address Emmons’s argument regarding
Bonds’s failure to timely file a motion for attorney’s fees.
Reversed.
GLADWIN and MURPHY, JJ., agree.
Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson; and Peel Law Firm,
P.A., by: John R. Peel, for appellant.
Taylor & Taylor Law Firm, P.A., by: Jennifer Williams Flinn, Andrew M. Taylor, and
Tasha C. Taylor, for appellee.
13