Jack Nelson Jones Professional Association
February 11-17, 2019
Schreckhise v. Parry, 2019 Ark. App. 48 (Jan. 30, 2019)
This matter arose from Washington County Circuit Court, Honorable Joanna Taylor presiding. William Schreckhise (Schreckhise) appealed the court’s order, giving his ex-wife, Janine Parry (Parry), primary custody of the parties’ two minor children. He argued that the circuit court erred in finding (1) that there was a material change of circumstances and (2) that it was in the children’s best interest to be placed with Parry. The Court of Appeals affirmed the circuit court’s decision.
The parties were divorced in October 2013, and the court awarded them joint custody of their two minor children. The divorce decree provided for each party to have the children two days during the Monday through Thursday period, and with Friday through Sunday to be alternated with the hours to be agreed upon by the parties. The parties agreed to divide equally all holiday and special visitation and were to use the Court’s Standard Visitation Schedule if they could not agree.
There was no further need for Court interaction until March 2017, when Parry petitioned to modify custody, asserting a material change of circumstances and that the children should be placed in her primary custody. Parry alleged that Schreckhise and his new wife had created an “adversarial environment that is not in the best interest of the children” and that Schreckhise had refused to provide her with information such as the children’s medical-care providers and the names of overnight childcare providers. Parry also claimed a dangerous situation had arisen with Schreckhise’s adult stepson, who was alleged to have serious mental and emotional problems that put the minor children in immediate danger. Schreckhise answered and generally denied Parry’s claims, counterclaimed and argued that if the court found a material change of circumstances, the children should be placed in his primary custody.
After a hearing on the matter, the court found a material change in circumstances had occurred and it was in the children’s best interest that sole custody be awarded to Parry. Specifically, the circuit court made the following findings:
– The parties interacted seamlessly and frequently regarding the children and their needs between the divorce and Schreckhise’s marriage in July 2014. In August 2014, Schrekhise began implementing rules on how the parties would communicate, including having limited communications in person, preferably only when spouses were available, but requiring communication by email other than in an emergency (with spouses copied), and interactions at the children’s events to be limited to a nod or a “hi”. By summer of 2015, Schreckhise expanded the rules to prohibit Parry from speaking to him at work (the parties worked in the same department at UA, and their offices were next door), nor come to his house, walk on the street in front of his house or his wife’s separate abode. Finally, he demanded separate parent-teacher conferences.
– Schreckhise testified that his marriage counselor recommended Parry not be present for the children’s medical appointments if they fell during his visitation. He refused to inform Parry about his children’s overnight childcare providers.
– In July 2016, concern arose about Schreckhise’s twenty-three-year-old step-son, DG. In an emergency petition for guardianship of the person and estate of DG filed by Mrs. Schreckhise, his father’s affidavit was made part of the record, and stated that since turning 18, DG had evidenced violent tendencies on multiple occasions, including destruction of property and violence toward family members and past girlfriends. DG was allowed to baby-sit the then ten-year-old children overnight in a hotel room in the spring of 2015. Schreckhise failed to tell Parry that Mrs. Schreckhise was seeking guardianship of DG, despite DG’s presence in the home when the children were present.
– From September 2016 through December 2016, incidents with DG took such a bad turn that Schreckhise sought an order of protection and hired off-duty police officers to provide security outside his house for a few days. However, Schreckhise did not communicate to Parry about the need for the off-duty police officers or any incident with DG, until Christmas Day 2016, because “he was handling it.” On that day, while the children were present, DG banged his fist on the table, threw a Christmas “popper” on the floor, and after being asked to leave, grabbed two pies, threw them on the floor, broke an urn, then left.
The circuit court noted that parents in a joint custodial arrangement have the obligation to communicate with each other about everything that affects the children. It noted that August of 2014 clearly marked a significant shift in the way the parties communicated with each other, and based on Schreckhise’s rules, was a material change in circumstances of the 2013 agreement. The court held the joint custody agreement was no longer in the children’s best agreement and found Schreckhise put up barriers for communication between Parry and himself and put his new wife and their marriage ahead of the children’s needs. The court found that the rules set in place by Schreckhise were manipulative, controlling, wholly inappropriate and not in children’s best interest.
The court found that testimony showed Parry consistently advocated for a shared burden and blessing of taking care of the children and kept a free flow of information between herself and Schreckhise about the children, and her efforts and communication with him were child focused. The court ultimately determined that, in the best interest of the children, sole custody should be awarded to Parry, subject to visitation by Schreckhise, which was to continue under the original schedule. He appealed.
The Court of Appeals reiterated that the primary consideration in child-custody cases was the welfare and best interest of the children; all else was secondary. It noted that the party seeking modification of a custody order had the burden of showing a material change in circumstances, and, once that was done, who should have custody is determined with the sole consideration being the best interest of the children. The Court observed that on appeal, the evidence is reviewed de novo, but a circuit court’s findings are not reversed unless they are clearly erroneous or clearly against the preponderance of the evidence. Moreover, special deference on witness credibility is given to the superior position of the circuit court.
Schreckhise argued that the circuit court erred in finding a material change in circumstances. He recounted why he felt certain “boundaries” were necessary, including excessive communication from Parry. He also disagreed that he failed to keep Parry adequately informed regarding childcare providers, medical appointments, or the situation involving DG. He characterized Parry’s action as based on petty complaints and parental gamesmanship and argued that a parent’s change in attitude was not necessarily sufficient to constitute a material change.
The Court of Appeals observed that this case, from a legal perspective, presented a textbook judgment call by the circuit court, and that on credibility determinations, it would not reweigh the evidence. Shreckhise furthered argued that if a material change in circumstances had occurred, it was not in the children’s best interest to place primary custody with Parry, that the custody schedule remained the same, and she wanted sole custody to facilitate her relocation out of state. The Court found that any discussion of possible relocation was not germane on appeal because it was not addressed or decided by the lower court. That court specifically found that Parry had consistently advocated for a free flow of information between her and Schreckhise, fostered an open relationship between the children and Schreckhise, and kept her communication with Schreckhise focused on the children. In contrast, the court found that Schreckhise had put his new wife and their marriage ahead of the needs of the children and had not acted in the children’s best interest. Based on those findings and the fact that the circuit court made no actual change in the amount of time that each parent spent with the children, the Court affirmed the lower court’s decision in all respects.