Opinion
CV-21-161
05-11-2022
MANDI CORDELL APPELLANT v. MATTHEW HYLLE APPELLEE
Andrea Brock, for appellant. Jerry D. Roberts, for appellee.
APPEAL FROM THE CROSS COUNTY CIRCUIT COURT [NO. 19DR-19-181] HONORABLE RICHARD L. PROCTOR, JUDGE
Andrea Brock, for appellant.
Jerry D. Roberts, for appellee.
N. MARK KLAPPENBACH, JUDGE.
Mandi Cordell appeals the order of the Cross County Circuit Court that granted appellee Matthew Hylle's petition for joint custody of the parties' daughter, EK, and changed EK's last name to Hylle. Cordell argues that the circuit court's recital of the law regarding joint custody was erroneous as a matter of law and that it failed to consider EK's best interest. She also argues that the circuit court failed to consider the appropriate factors in changing EK's name. We affirm the circuit court's order.
EK was born in September 2019. The parties were never married and had ended their relationship before EK was born. In October 2019, Hylle filed a petition to establish paternity, visitation, and custody, and he requested that EK's last name be changed if he is the father. The circuit court ordered paternity testing, which established that Hylle is EK's father. Following a hearing in January 2020, the circuit court entered a temporary order declaring Hylle the father and granting him supervised visitation. In July 2020, the court awarded Hylle unsupervised visitation every other weekend.
The final hearing was held on September 29, 2020. Hylle testified that he was requesting true joint custody. After receiving the DNA results in November 2019, he sent numerous texts to Cordell requesting to meet his daughter, but he received no response other than one text from Cordell requesting that he stop texting her because it was "harassing." Copies of the text messages were admitted into evidence. Hylle did not have any contact with EK until the court awarded him visitation at the temporary hearing held on January 30, 2020. Hylle said that despite the "shared parenting" provisions of the temporary order, Cordell had refused for some time to tell him the names of EK's babysitter or doctor. This was confirmed by text messages between the parties. Other messages reflected an argument between the parties regarding where to exchange EK for a visitation, and Hylle testified that Cordell had tried to argue with him at the exchanges. He played an audio recording he made when attempting to pick up EK for extra visitation. The visitation did not occur because Cordell wanted Hylle to retrieve EK from her car, but Hylle preferred to wait off of Cordell's property. Cordell admitted she had raised her voice in the recording.
Hylle introduced other text messages, however, that showed the parties communicating effectively about EK. Hylle said that he was willing and able to work with Cordell in a joint-custody arrangement. Hylle testified that he has a great relationship with EK, that he has no problem caring for her, and that she has her own room in his home. Hylle married Jessica Hylle in December 2019, and Jessica's two children, ages eight and six, also live in the home. Jessica had never had any dealings with Cordell personally, but Jessica had refused to provide her phone number to Cordell. Hylle said that his work schedule as an independent sales representative is very flexible. He intended to work his schedule around when he has custody, and his mother had agreed to watch EK when he is unable to. His parents and many other family members lived close by. Hylle testified that he was asking for EK's last name to be changed "because I'm the father of her and I would like for her to have my last name." He said that his family has a "great reputation" in the community.
On cross-examination, Hylle said that he did not know Cordell was pregnant when they broke up, and he found out from someone with whom they both worked at the time. He agreed that the breakup involved an incident in which he used a knife to unlock a door in an attempt to talk with Cordell. He acknowledged that the matter "wound up" in district court, but he said that he was found not guilty. Hylle denied making negative allegations against Cordell about the pregnancy.
Cordell testified that she has two other daughters, ages thirteen and seven, and she wants her daughters raised together. She agreed that it is important for Hylle to have time with EK, but she did not want to lose time with EK. She said that she had offered extra visitation on eight dates, and she would continue to offer additional visitation if Hylle was awarded standard visitation. Cordell objected to changing EK's last name. EK's last name was Cordell's maiden name, and Cordell planned to change her name back to her maiden name. Cordell had been divorced since 2015 but had not yet changed her name, which she shares with her second daughter. Cordell's other daughters both have the last names of their fathers, but Cordell said this had caused problems for one of her daughters "because of who her father is." Cordell said that she did not think that she and Hylle could cooperate in raising EK at this time, although she admitted that they had gotten along okay for periods of time and had communicated effectively.
The circuit court ruled from the bench that the parties would have true joint custody on an alternating weekly basis. In an order entered November 24, 2020, the court found that it was in the best interest of EK that the parties be granted joint custody. The court also ordered that EK's last name be changed to Hylle. The court ordered that neither party would pay child support because the parties would have true joint custody. On December 14, 2020, the court entered another order essentially identical to the prior order except for the paragraph concerning child support. In that paragraph, the court determined that Hylle would pay $81.50 a month in child support. Cordell filed a motion to vacate or, in the alternative, to modify the judgment on December 28, 2020. The motion was not ruled on.
Cordell filed her notice of appeal on January 12, 2021, purporting to appeal from the orders entered on November 24, 2020, and December 14, 2020. In his response to Cordell's jurisdictional statement, Hylle argues that this court is without jurisdiction to hear the appeal because the November 24 order was a final, appealable order, and Cordell's notice of appeal was untimely as to that order. Hylle claims that the December 14 order was filed for the sole purpose of correcting child support and was a collateral matter.
In Francis v. Protective Life Insurance Co., 371 Ark. 285, 265 S.W.3d 117 (2007), the appellant filed a notice of appeal that was timely as to a November 10 order but untimely as to a November 3 order. The supreme court concluded that the November 3 order was properly filed and constituted the final, appealable order. The court held that "to hold otherwise would require a finding that the November 10 order amended the November 3 order, replacing it as the final, appealable order." 371 Ark. at 292, 265 S.W.3d at 122. However, the court found that the November 10 order did not amend the prior order but was instead a nunc pro tunc order that merely corrected a clerical error.
Unlike the order in Francis, the second order here did not merely correct a clerical error. The court completely changed its analysis and ruling as to child support. Although it was not titled as such, the December 14 order was an amended order and replaced the prior order as the final, appealable order. Accordingly, Cordell's notice of appeal was timely to appeal the proper order.
Child-custody cases are reviewed de novo on appeal, but we will not reverse a circuit court's findings of fact unless they are clearly erroneous. Carrillo v. Morales Ibarra, 2019 Ark.App. 189, 575 S.W.3d 151. A finding of fact is clearly erroneous if, after reviewing all the evidence, the appellate court is left with a definite and firm conviction that a mistake has been made. Id. Whether a circuit court's findings are clearly erroneous turns largely on the credibility of the witnesses; therefore, we give special deference to the circuit court's superior position to evaluate the witnesses, their testimony, and the child's best interest. Id. There are no cases in which the circuit court's superior position, ability, and opportunity to observe the parties carry as great a weight as those involving minor children. Id. The primary consideration in child-custody cases is the welfare and best interest of the child; all other considerations are secondary. Id.
Cordell argues that the joint-custody order must be reversed because the circuit court's recital of the law regarding joint custody was erroneous as a matter of law and because it failed to consider the best interest of EK. She cites cases holding that an award of joint custody is erroneous when the parents have an inability to cooperate and communicate, and argues that, here, it is undisputed that cooperation and communication between the parties is lacking.
At the time of the circuit court's award of joint custody in 2020, the law stated that in an action for divorce, custody shall be made without regard to the sex of a parent but solely in accordance with the welfare and best interest of the child, and an award of joint custody is favored. Ark. Code Ann. § 9-13-101(a)(1)(A)(i), (iii) (Supp. 2019). When in the best interest of a child, custody shall be awarded in a way that assures frequent and continuing contact of the child with both parents consistent with subdivision (a)(1)(A). Ark. Code Ann. § 9-13-101(b)(1)(A)(i). In making the custody decision, the circuit court "may" consider awarding joint custody. Ark. Code Ann. § 9-13-101(b)(1)(A)(ii). Furthermore, the circuit court may consider, among other facts, which party is more likely to allow the child frequent and continuing contact with the noncustodial parent. Ark. Code Ann. § 9-13-101(b)(2). Once paternity has been established, the circuit court is to follow the same guidelines, procedures, and requirements as if it were a case involving a child born of a marriage in awarding custody and visitation. See Ryan v. White, 2015 Ark.App. 494, 471 S.W.3d 243.
In 2021, the statute was amended to add a rebuttable presumption that joint custody is in the best interest of the child. Ark. Code Ann. § 9-13-101(a)(1)(A)(iv)(a) .
A 2021 amendment to the statute changed "may" to "shall."
Recognizing the superior position of the circuit court to evaluate the witnesses, their testimony, and the child's best interest, we are not left with a definite and firm conviction that the circuit court made a mistake in awarding joint custody. In its remarks from the bench, the circuit court misstated the statutory preference for joint custody as a rebuttable presumption in favor of joint custody; however, the court's written order controls over its oral ruling. See Stills v. Stills, 2010 Ark. 132, 361 S.W.3d 823. In its written order, the court spoke to the primary consideration in deciding a child-custody case when it found that joint custody was in EK's best interest. Cordell claims that the court erroneously stated from the bench that the only way it could decline to award joint custody was to make a distinction by gender. This claim ignores the court's further remarks that "I am not allowed to do that. I am supposed to treat them both just the same." Upon finding that both parties were "quite capable" and that EK was "thriving with both of them," the court appears to have been simply remarking on the fact that the custody decision shall be made without regard to the sex of a parent.
Cordell also claims the court failed to accurately state the law when it remarked, "I really don't know any other way to rule on this case other than equal time," and "I think that I don't have choices in that matter." This ignores the court's next statement: "Well, I've probably got some but I think it should be equal."
The mutual ability of the parties to cooperate in reaching shared decisions in matters affecting the child's welfare is a crucial factor bearing on the propriety of an award of joint custody. Carrillo, 2019 Ark.App. 189, 575 S.W.3d 151. While there was evidence that the parties had experienced problems in cooperating with each other, the extent and duration of the friction between them does not rise to the level of the conflict present in the cases relied on by Cordell. In Li v. Ding, 2017 Ark.App. 244, 519 S.W.3d 738, the circuit court found that the parties had significant disagreement regarding school choice and parenting styles, and they were "completely failing at communication." We noted that the parents had separated six years before the hearing; thus, "the descriptions by the parties and the court of the parties' communication has been true for years." In Carrillo and in Hewett v. Hewett, 2018 Ark.App. 235, 547 S.W.3d 138, the hearings were held approximately four years after the parents' separation and the children were school age.
Here, EK had just turned one year old at the time of the hearing, and Hylle had been exercising visitation for only eight months. There were issues initially with sharing information, and there had been arguments regarding visitation exchanges. However, both parties testified that they had been able to effectively communicate at times. In Hoover v. Hoover, 2016 Ark.App. 322, 498 S.W.3d 297, we affirmed a joint-custody award despite noting a "significant level of animosity" between the parties. In the case at bar, although the circuit court noted that the parties did not get along very well, it also found that they were not very critical of each other and that EK was thriving with both of them. As in Pace v. Pace, 2020 Ark. 108, 595 S.W.3d 347, where the supreme court affirmed the circuit court's decision to maintain the joint-custody arrangement, there is nothing in the record to demonstrate that parental discord has affected EK's health and welfare. When presented with two parents with whom the child was thriving and in light of the statutory preference for joint custody, we cannot say that the circuit court was clearly erroneous in determining that joint custody was in EK's best interest.
The circuit court ruled from the bench that it was granting Hylle's request to change EK's last name to Hylle. The court stated, in part, that it was granting the name change "because it is going to be permanent," and what may happen in the future "could be kind of confusing" for EK. Cordell argues that Hylle had the burden of proving that the name change was in EK's best interest, and he failed to offer proof on the factors the court must consider.
In order to successfully petition to change a minor child's surname, the moving party has the burden of demonstrating that such a change is in the best interest of the child. Huffman v. Fisher, 337 Ark. 58, 987 S.W.2d 269 (1999). In determining the child's best interest, which must ultimately be the controlling consideration in any change in status, the circuit court should consider at least the following factors: (1) the child's preference; (2) the effect of the change of the child's surname on the preservation and development of the child's relationship with each parent; (3) the length of time the child has borne a given name; (4) the degree of community respect associated with the present and proposed surnames; (5) the difficulties, harassment, or embarrassment that the child may experience from bearing the present or proposed surname; and (6) the existence of any parental misconduct or neglect. Id. When a full inquiry is made by the court of the implication of these factors and a determination is made with due regard to the best interest of the child, the court's decision will be upheld so long as it is not clearly erroneous. Id.
However, the circuit court could only weigh the factors for which the parties provided evidence or that were relevant under the circumstances. Matthews v. Smith, 80 Ark.App. 396, 97 S.W.3d 418 (2003). Here, EK had borne the same last name since she was born, which was one year before the hearing. She was too young to have a preference regarding her last name. There was no evidence that either parent had neglected EK. Regarding the degree of community respect associated with the present and proposed surnames, Hylle testified that his family had a great reputation in the community, but there was no evidence regarding EK's present surname. There was no allegation that EK would experience any difficulties, harassment, or embarrassment from bearing the present or proposed surname other than the fact that EK's present surname is not shared by either parent. Cordell stated that she intended to change her name back to her maiden name, but she had not yet done so despite having been divorced five years earlier. When asked if she was likely to change her name again if she remarried in the future, Cordell stated that that was an assumption, and she had no current plans to get married as she was not even dating someone. Finally, the evidence does not show that changing EK's surname would have a great effect on her relationship with each parent. As we stated in Carter v. Reddell, 75 Ark.App. 8, 52 S.W.3d 506 (2001), each parent has established a bond with EK, and that is unlikely to change regardless of which surname she uses.
In ruling from the bench, the circuit court noted that EK did not currently share Cordell's surname, and although Cordell planned to change her name, she could potentially change it again in the future if she remarried. The court found that this could be "kind of confusing" for EK and ruled that it was changing her name because it would be permanent for EK. Other relevant evidence supporting the court's decision is the fact that Hylle filed his paternity action and requested EK's name be changed only eleven days after she was born, and he has regularly exercised visitation and paid child support. See Carter, supra. Although the circuit court's order does not state that the name change is in EK's best interest, because there is a presumption that a circuit court made the findings necessary to support its judgment, we presume that the circuit court considered EK's best interest in ordering the name change. See Hoover, supra. We hold that there was sufficient evidence for the court to consider and that its finding was not clearly erroneous.
Affirmed.
Gladwin and Hixson, JJ., agree.