DIVISION III

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

CA01-163

July 5, 2001

LESLIE JANETTE FRANKS AN APPEAL FROM SEBASTIAN

(Now Ouellette) COUNTY CHANCERY COURT

APPELLANT [E99-36 II]

V. HON. HARRY A. FOLTZ, CHANCELLOR

RHETT WILLIAM FRANKS

APPELLEE AFFIRMED

Leslie Janette Franks (now Ouellette) appeals from a chancery court order denying her request to relocate to Phoenix, Arizona. She argues that the chancellor erred in finding that she failed to prove the move would result in some real advantage to her and her children, erred in failing to consider the proper factors that should be considered when determining whether to allow a custodial parent to remove a child from the state, and erred in determining that a move to Arizona would constitute a change in circumstances warranting a change of custody in favor of Rhett Franks, the children's father. We hold that the chancellor's decision was not clearly erroneous and affirm.

Appellant and appellee, Rhett Franks, were married on May 17, 1997, and had two children: Morgan Franks, d.o.b., January 31, 1995, and Madison Franks, d.o.b. February 5, 1997. The parties were divorced on April 27, 1999. Appellant was awarded custody of thechildren. Appellee was awarded standard visitation and was ordered to pay child support. On August 16, 2000, appellant filed a request to relocate,1 requesting that the chancery court allow her to move to Arizona. She asserted that she was getting married in September 2000, and that she desired to relocate to Phoenix where her fiancé lived and worked. She stated that she had received a job transfer through her employer, and that her new position would pay nearly double that of her salary from her job in Fort Smith. Appellee responded by asserting that there had been a material change in circumstances that made it in the best interest of the children for custody to be awarded to him. He asserted that he and his parents had formed a strong attachment with his children and that the move to Arizona would traumatize the children and would make it impossible for them to maintain their relationship.

Appellant married Mike Ouellette in September 2000, before the hearing in this matter. When asked at the hearing why she wanted the court to allow her to move to Arizona, she stated that it was "primarily" because that was where her husband lives. She and her present husband were maintaining separate households, because he was in Phoenix. She stated that they telephone each other daily, and visit each other in both locations. Appellant, who works for United Parcel Service (UPS), also stated that once she moves to Phoenix, she would be promoted to a full-time supervisory position, if she chose to take it, whereas now, she works only twenty-five hours per week. However, appellant did not positively state that she would take the job. She indicated that if she did not take the job, she would spend her free time with her children, as she does now.

Appellant further testified that her husband helps care for his grandfather who has emphysema, and his mother, who recently had a stroke. She and her daughters flew to Phoenix and visited Ouellette and his family once for four days. She explained that her youngest child, Morgan, would either stay with her, or with her husband or his grandmother when she was working.

Appellant testified that if the court granted her motion, she would have the girls call appellant every Wednesday night. She also stated that she would drive to Amarillo to meet appellant when he comes to pick up the girls for visitation, which is more than halfway from Phoenix to Fort Smith. Appellant testified that she would allow the children to visit over all of Christmas 2000, every other spring break, all but two weeks in the summer and every time she came to Fort Smith to visit her family.

According to appellant, she and appellee did not strictly adhere to the visitation schedule. She asserted that appellee attempted to prevent her from taking the children for an extended visit to see her parents in Gulfport, Mississippi. She also testified that appellee was physically abusive in front of the children when she attempted to take the children tovisit her parents.

Mr. Ouellette is employed by Arkansas Best Freightways (ABF) in Phoenix. He admitted that he had not checked into a job at Fort Smith, but he presented a promissory note dated April 2000, stating that he agreed to work for two years at his job with ABF in Phoenix in return for ABF paying for his tuition. Because he would make the same money at either place but appellant would make more money in Phoenix, Mr. Ouellette thought it would be better for the family to move to Phoenix. He stated appellant would have greater potential for advancement in Phoenix because UPS had a bigger terminal there. When questioned by the court as to whether a transfer to Fort Smith was possible if he desired, he stated that he helped his mother and grandmother to take care of his grandfather in Phoenix. He also indicated that he was willing to fly or drive or do whatever was necessary to help appellee with visitation.

Appellant's mother corroborated that appellee had attempted to prevent her and her husband from seeing the girls for a ten-day visit. She also stated that she and her husband visited the children about once every three months, at their expense. Finally, she regretted that the children would be separated from them and from their other relatives, but indicated that "we definitely feel it is a better situation."

Donna Vickery, appellant's sister, testified that she babysits the children often, especially Morgan, that appellee had attempted to interfere with their visitation with their maternal grandparents, and that Mr. Ouellette seemed to have a good relationship with the children.

Appellee then testified. He indicated that he did not want the children to be removed from their mother, but he stated that he did not want her to move the children away from him. He stated that he exercised visitation at every opportunity. He testified that he taught a boys' church class on Wednesday nights, and that the girls accompany him to church. Appellee also stated that his parents visit every time he has the girls, except on Wednesday night, and that the children regularly visit his grandmother's house. Appellee stated that the children spend the night with his mother once a month and with his wife's mother and father once a month.

Appellee admitted that taking the children away from their mother, who is their primary caregiver, would be devastating, but asserted that would be her choice. He stated that he felt it would also be devastating to the children to be away from the family they have grown up with just to be with appellant and her new husband that they have only known for six months, especially where the parents will be working split shifts.

Appellee's mother testified that she and her husband visit with the children whenever appellee has visitation, except for Wednesdays, because the children are in church. She stated that the children have their own room at her house, with their own toys and pillows, and that her place is like home to them. She expressed concern that the children's emotional well-being would be affected if they were separated from her. Appellee's father testified that he sees the children every weekend that appellee has them and that it would be a shock if the kids were to move.

Appellee's wife testified that her husband was extremely attentive in exercisingvisitation. She said that the children love going to their church and feel like they are regular members. She testified that the move would be devastating to the children, because they do not have a comprehension of time, and it would be a long time between visits. She also testified that the girls have a close relationship with appellee's parents.

Appellee's grandmother testified that she sees the children whenever appellee has them, and that she is very close to the girls. She testified that she has kept them overnight. She stated that it would not be possible for her to have a meaningful relationship with the girls if they move to Phoenix.

In an order entered on November 20, 2000, the chancellor found that appellant failed to prove that a move to Phoenix would be in the best interest of the children. He indicated orally that he relied on Hickmon v. Hickmon, 70 Ark. App. 438, 19 S.W.3d 624 (2000). He said that before he is required to consider the Hickmon factors, appellant had the burden to show some real advantage from the move will result to the children and herself. In his oral findings, he stated that it was "debatable whether [appellant] has demonstrated a real advantage to herself in the move other than her desire to relocate where her new husband lives." He further stated that the evidence was not totally convincing that her salary would increase. He stated that her primary purpose in relocating was not to receive a promotion, but was to be where her husband lives. The court found it was not convinced that it is necessary for her to move to Phoenix to be with her new husband because his company also has an office in Fort Smith, and he failed to even explore the possibility of working there. The chancellor noted that it might be difficult for appellant's husband to relocate, but thatfact did not outweigh the great disadvantage to the children being separated from their father and other relatives, including appellant's parents, with whom they have a close bond.

The court declined to expressly state the Hickmon factors that it had considered, but summarized its decision stating: "[A]s difficult as this decision is for the Court to make and the [appellant] to accept, the court is not convinced that there is any great advantage to the [appellant] making the move, there is no advantage to the children, and the court does not find the move necessary as it appears the [appellant] could keep her job here and her husband could probably become employed here if he relocated."

Finally, the court held in abeyance appellee's motion for modification of custody for ten days to allow appellant the opportunity to decide whether she would still move. The chancellor stated that if appellant remained in Arkansas, his prior orders would remain in effect, but if she moved to Arizona, the original custody order would be modified to award custody to appellee. This appeal followed.2

I. Denial of Appellant's Motion to Relocate

Appellant first argues that the chancellor erred in failing to consider the factors cited in Hickmon v. Hickmon, supra, and erred in denying her request to relocate. Although wereview chancery cases de novo on the record, we do not reverse unless we determine that the chancery court's findings were clearly erroneous. See Anderson v. Holliday, 65 Ark. App. 165, 986 S.W.2d 116 (1999). A chancery court's finding of fact 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 committed. See Lammey v. Eckel, 62 Ark. App. 208, 970 S.W.2d 307 (1998). In reviewing a chancery court's findings, we defer to the chancellor's superior position to determine the credibility of witnesses and the weight to be accorded to their testimony. See Jennings v. Burford, 60 Ark. App. 27, 958 S.W.2d 12 (1997).

Where the custodial parent shows a move out of state would result in some advantage to the family unit, the court should then consider five factors in determining whether to allow a custodial parent to remove a child from the state: (1) the prospective advantages of the move in terms of its likely capacity for improving the general quality of life for both the custodial parent and the children; (2) the integrity of the motives of the custodial parent in seeking the move in order to determine whether the removal is inspired primarily by the desire to defeat or frustrate visitation by the non-custodial parent; (3) whether the custodial parent is likely to comply with substitute visitation orders; (4) the integrity of the non-custodial parent's motives in resisting the removal; and (5) whether, if removal is allowed, there will be a realistic opportunity for visitation in lieu of the weekly pattern which can provide an adequate basis for preserving and fostering the parent relationship with the non-custodial parent. See Hickmon v. Hickmon, supra (citing Staab v. Hurst, 44 Ark. App. 128, 134, 868 S.W.2d 517, 520 (1994)).

Appellant asserts that the chancellor did not consider these factors and erred in applying them in this case. Her argument is not persuasive. First, the chancellor correctly stated that before the court was required to consider the Hickmon factors, appellant bore the burden of proving that some real advantage will accrue to the children and the custodial parent. See Hickmon v. Hickmon, supra; Wilson v. Wilson, 67 Ark. App. 48, 991 S.W.2d 647 (1999). Only then is the court required to consider the Hickmon factors.

Moreover, appellant made no motion under Arkansas Rule of Civil Procedure 52 requesting specific findings of fact with regard to these factors, thereby waiving her objection to this issue on appeal. See Hickmon v. Hickmon, supra. Therefore, the first issue is whether the chancellor erred in finding that appellant proved no real advantage would result from the move. We find the chancellor did not err in so finding; therefore, the chancellor was not required to consider the Hickmon factors.3

Appellant maintains that the chancellor failed to consider her interest and well-being as the custodial parent. She argues that she will be creating a better environment for the family unit, and that this should not be sacrificed solely to allow appellee to maintain his current visitation where reasonable alternative visitation exists. See Staab v. Hurst, supra.

Appellant is correct that the chancellor is required to consider whether the move would be advantageous to the family unit as a whole. See Staab v. Hurst, supra; see also Hass v. Hass, ___ Ark. App. ___ , ___ S.W.3d ___ (May 30, 2001). Further, this court has stated that the chancellor should not insist that the advantages of the move be sacrificed and the opportunity for a better and more comfortable lifestyle for the family unit be forfeited solely to maintain weekly visitation where reasonable alternative visitation is available and where the advantages of the move are substantial. See Staab v. Hurst, supra; Hass v. Hass, supra.

However, here, the advantages of the move are not substantial. Appellant testified that if she accepted the promotion, she would have a full-time management position in Phoenix, and that no such option for a full-time position existed in Fort Smith. Mr. Ouellette testified that he has full-time employment in Phoenix that is not guaranteed in Fort Smith, and that he had a contract with his employer that required him to work for that terminal for two years or he would have to repay the tuition money the company spent on him. Also, he testified that his union benefits would not transfer. Finally, appellant maintains that she offered the court a reasonable alternative visitation schedule, pursuant to Staab v. Hurst, supra, which would allow appellee to see the children at Christmas, on spring break, overthe summer and whenever she visited her relatives in Fort Smith. She asserts that appellee has had only "peripheral involvement" with the children. She maintains he does not spend much of his visitation time with the children and that the children often spent the nights with their paternal grandparents and stepmother's parents during his visitation.

The facts in this case are similar to the facts in Hickmon v. Hickmon, supra. In Hickmon, the parents had joint legal custody, but the mother had primary physical custody. The mother sought to relocate to Phoenix to join her husband, a surgeon. She also asserted that she had obtained a better paying job that would require her to work fewer hours and thus, would enable her to spend more time at home. She testified that she would fly with her daughter to Little Rock every other weekend at her expense in order for the father to exercise visitation. The evidence in Hickmon showed that the child had a close relationship with her father. Two psychologists testified that the move was not in the child's best interests. Id.

The Hickmon court found that, although the move would have significant advantages for the mother, the mother failed to show that the move would be advantageous for her daughter, who would be removed from her friends, teammates, extended family, her horses, her teacher, and her home. The court found that the mere facts that the mother was remarried to a successful surgeon who owned his own home and who had two other children with whom her daughter got along, and had secured a position that allowed her to spend more time with her daughter, did not prove that the move would result in a real advantage to the child. Id.

The Hickmon court did not find that there was compelling evidence of an impropermotive on the mother's part in desiring to move, or in the father's part in opposing the move, or that visitation would not be complied with. Nonetheless, the court found that on that facts of that case, where the father was highly involved in the child's life and where there was a "paucity" of evidence of any real advantage for the child, the mother failed to show that the move was in the child's best interest. Id.

Similarly, here, the children have close relationships that will be endangered if they move, and there is insufficient evidence of any advantage the children will gain from the move. The children are lifelong residents of Sebastian County. Appellee resides in Fort Smith, as do the children's paternal grandparents and great-grandparents, as well as several relatives on both sides of the family. Appellant's parents are within a ten-hour drive and are able to visit every three months. Appellant and the children have no connection with Phoenix, other than the fact that appellant's husband lives there and they have visited once.

While the custodial parent's preference is a proper factor to consider, see Antonacci v. Antonacci, 222 Ark. 881, 263 S.W.2d 484 (1954), it should not be the determinative factor. While there was no expert testimony in this case, there was substantial testimony establishing that the children in this case have a close relationship with appellee and his extended family. Appellant would have this court find that appellee does not exercise visitation because he allows the children to spend time with their paternal grandparents and step-grandparents. To the contrary, the fact that the children have such a close relationship with their extended family supports the chancellor's decision, and the chancellor noted as well that the move would affect their relationship with their maternal grandparents.

However, as the chancellor noted, the evidence regarding appellant's promotion was not convincing. She testified that she would receive a promotion to a full-time supervisory position, after three months, if she chose to accept the job. She also testified that if she did not accept the job, that would work part-time as she currently does. Therefore, she would have this court reverse the chancellor where she has failed to establish that she, in fact, will receive and accept a promotion.

Appellant simply has demonstrated no advantage in the children being uprooted from their extended family and familiar surroundings so that she can live with her new husband and continue to work part-time as she does now. This is not the case, such as the case of Friedrich v. Bevis, 69 Ark. App 56, 9 S.W.3d 556 (2000), in which a well-established family unit, including the mother and stepfather, are moving because the parents have obtained better jobs. Here, as in Hickmon, a move under these conditions would merely constitute an advantage for appellant, not for the family unit as a whole.

Finally, this outcome is not changed by this court's recent decision in Hass v. Hass, supra. In Hass, this court reversed when the chancellor denied a request to relocate where the mother desired to move from Fayetteville to El Dorado in order to accept a federal clerkship. The Hass court found that the chancellor erred in failing to assess whether the move was advantageous to the family unit, and stated that a federal clerkship is a splendid opportunity for a lawyer entering practice. The Hass court found that it was advantageous for a child to have both parents who are financially independent professionals capable of giving material support.

Hass is distinguishable from the instant case. In Hass it was clear that the mother's motivation to move was primarily, if not solely, job-related, that the mother was accepting the position being offered, and that the child would benefit from her mother accepting the position. Here, appellant's motivation is, as she stated, to be with her new husband. Further, it is not clear that appellant will actually receive a promotion or that she intends to accept it if it is, in fact, offered.

Therefore, we hold that the chancellor did not err in finding that appellant failed to prove that the move would result in some real advantage to her and her children and in denying her motion to relocate.

II. Modification of Custody

Appellant also argues that the chancellor erred in determining that if appellant moved to Arizona, he would change custody to appellee, although appellee failed to prove a material change in circumstances. Custody should not be changed unless conditions have altered since the decree was rendered or material facts existed at the time of the decree but were unknown to the court, and then only for the welfare of the child. See Hollinger v. Hollinger, 65 Ark. App. 110, 986 S.W.3d 105 (1999). For a change of custody, the chancellor must first determine that a material change in circumstances has occurred since the last order of custody; if that threshold requirement is met, he must then determine who should have custody with the sole consideration being the best interest of the children. See id.

A custodial parent's move that is made in order to better his or her financial abilityto provide for a child was not, in and of itself, a material change in circumstances to be used to the detriment of that parent. See Hollinger v. Hollinger, supra; Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767 (1996). However, such a move is one factor which may be considered when determining whether a material change in circumstances exists.4 See Hollinger v. Hollinger, supra.

Moreover, the considerations in this case are far more complex than appellant's desire to move in order to better her financial ability. First, it is not clear that appellant has been offered and intends to accept a promotion. Second, appellant purports to move the children, now ages six and four, at least seventeen hours away, to a new location where they only know members of their stepfather's family that they have met on one occasion. As noted above, the chancellor found that it was in the best interest of the children to remain in Arkansas where they can continue their close relationship with their father, his extended family, and their maternal grandparents. If appellant moved to Arizona under these circumstances, and in the face of a court order expressly indicating that she would lose custody of her children if she so moved, that would constitute a material change in circumstances indicating that she placed her own desires above the welfare of the children that were found to be paramount by the chancery court.

Based on the foregoing, we affirm the chancellor's order.

Affirmed.

Robbins and Crabtree, JJ., agree.

1 Appellant filed a prior petition to relocate and a motion for contempt for failure to pay child support on June 23, 1999. In that motion, she requested that she be allowed to relocate to Gulfport, Mississippi, where her parents lived. Her parents had offered to allow her to live in their home until she became financially stable. The chancellor granted her motion for contempt with regard to child support, but denied her motion to relocate. The chancellor found that appellant had no assurance of a similar job in Gulfport, that her only relatives in Gulfport were her parents, and that appellee agreed to make the marital home available for the cost of the mortgage. The chancery court concluded that the ten-hour distance would adversely affect the children's relationship with their father and paternal grandparents.

2 Because the chancellor made refusal to modify custody contingent upon appellant's decision to move, the facts of this case appear to present the issue of whether the order in this case is final. Arguably, however, on the facts of this case, the chancellor's order became final after ten days. Moreover, this court, without addressing whether the order was final, recently addressed the merits of a denial to relocate where the chancellor prospectively ordered that custody would be changed if the mother accepted the job and relocated. See Hass v. Hass, 74 Ark. App. 49, ___ S.W.3d ____ (May 30, 2001).

3 Moreover, even though the chancellor here found that appellant failed to prove the move would result in some real advantage to her and her children, and therefore was not required to consider the Hickmon factors, it is obvious from his written and oral findings that he considered at least some of these factors. The chancellor stated:

While the court is not going to set out all the factors set out in the Hickmon case . . . which it has considered, the Court will simply summarize its decision by stating that as difficult as this decision is for the Court to make and the [appellant] to accept, the court is not convinced that there is any great advantage to the [appellant] making the move, there is no advantage to the children, and the court does not find the move necessary as it appears the [appellant] could keep her job here and her husband could probably become employed here if he relocated.

The chancellor specifically cited the detrimental effect the move would have on the children's relationships with their extended family members on both sides (factor one), as well as appellant's alleged promotion, her desire to live with her new husband, and their failure to explore the possibility of her husband working in Fort Smith (factor two).

4 It does not appear that this court or the Arkansas Supreme Court has addressed whether a prospective move may constitute a material change of circumstances. However, appellant does not object to prospective aspect of the chancellor's order. She simply argues that appellee failed to prove that such a move would constitute a material change in circumstances.