Hass v. Hass

Andree Layton Roaf, Judge, dissenting. I would reverse and remand this case on both the issue of abatement of alimony and modification of visitation. With regard to the abatement of alimony, I agree with the majority as to the standard of review and agree that the trial court erred in completely abating the alimony based solely upon the finding that Judith Hass was now earning more through her employment than the amount of the annual alimony obligation. However, the parties clearly and explicitly agreed that the alimony obligation would be modifiable upon a showing of change of circumstances, “to the same extent it would be had the judge made the decision on alimony without agreement of the parties.” While the majority concludes that the parties must have contemplated that Judith Hass would be employed upon graduation from law school, and faults Dr. Hass for failing to present proof of prevailing salary rates in Fayetteville for attorneys entering practice, the fact remains that a substantial change of circumstances was clearly shown. Consequently, I would not simply reinstate the original award, but would remand to the trial court to fully and properly address the issue of alimony, considering all of the changed circumstances, including both parties’ increase in income.

With regard to the modified visitation, I must also conclude that the trial court erred in awarding Dr. Hass visitation consisting of virtually all of the child’s summer vacation, with the exception of a single July weekend visitation with the child’s mother. There is no reason to deprive the child of contact with his mother for such an extended period of time where Dr. Hass will be able to continue his regular weekend visitation. I can find no case that describes such a deprivation except in parental relocation cases where the parties were living at considerable distances from each other such that weekend visitation would be precluded. See Wagner v. Wagner, 74 Ark. App. 135 , 45 S.W.3d 852 (2001) (affirming order allowing mother to relocate to Florida; father awarded extended summer visitation from one week after school is out through one week before school commences, except for one week during this period for mother’s vacation); Wilson v. Wilson, 67 Ark. App. 48 , 991 S.W.2d 647 (1999) (affirming order allowing mother to relocate to California; extended summer and Christmas visitation awarded to father).

In a North Dakota case involving the custodial parent’s relocation out of state, Tibor v. Tibor, 623 N.W.2d 12 (N.D. 2001), the custodial parent, the mother, was granted permission to relocate with the parties’ children to Georgia. As in the case before us, the mother appealed the trial court’s award of extended summer visitation of seven weeks to the father who remained in North Dakota. In affirming the visitation award, the North Dakota Supreme Court stated:

We have concluded that a noncustodial parent’s right to maintain and develop a relationship with his or her children after removal from the state can be satisfied by modifying the visitation schedule to include less frequent but more extended periods of time. When there is a long distance between the homes of the noncustodial and custodial parents, we have approved visitation schedules providing less frequent, but extended visitation periods to preserve the noncustodial parent’s ability to foster relationships with the children. In such circumstances, extended visitation during the summer months may be the only feasible method of facilitating visitation, from the standpoint of transportation and economics. [Citations omitted.]

Id. at 16 .

Although Dr. Hass will not-be able to continue his Wednesday evening visitations with the minor child as a result of the relocation to El Dorado, the extended summer visitation awarded is nearly three months, and is clearly not the only feasible method of facilitating his visitation. There is simply no reason to deprive the child of contact with his mother for such an extended period under the circumstances presented in this case, and where Dr. Hass will continue to exercise his weekend visitation.

Moreover, this court reversed and remanded a case in which the trial court granted “extended visitation” of June 5 through August 20 to the noncustodial father, holding that it was error to deny the mother all visitation rights during the summer months when the child was with the father. Welch v. Welch, 5 Ark. App. 289 , 635 S.W.2d 303 (1982). This court said that such an order was “manifestly against the best interest and welfare of the child.” Id. This court further noted that even in cases involving a nine-month/three-month split custody, visitation is awarded during both periods. I cannot say that a single midsummer weekend visit is sufficient to distinguish the extensive visitation awarded Dr. Hass from the facts in Welch. Consequently, I would also reverse and remand for the trial court to reconsider the question of summer visitation.

Robbins and Crabtree, JJ., agree with respect to the issue of alimony.

Hart, Crabtree, and Baker, JJ., agree with respect to the issue of visitation.