Cite as 2022 Ark. App. 279

ARKANSAS COURT OF APPEALS

DIVISION I

No. CV-21-499

LYNDSAY BELL

APPELLANT

V.

ZACHARY BELL

APPELLEE

OPINION DELIVERED JUNE 1, 2022

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT, 

FIFTEENTH DIVISION

[NO. 60DR-16-2184]

HONORABLE AMY DUNN JOHNSON, 

JUDGE

AFFIRMED IN PART; REVERSED IN 

PART

ROBERT J. GLADWIN, Judge

Lyndsay Bell brings this one brief appeal of the June 24, 2021 order of the Pulaski 

County Circuit Court, which modified the September 19, 2017 divorce decree (Decree) 

between Zachary Bell and her. Lyndsay argues that the following actions by the trial court 

were clearly erroneous: (1) finding that a material change of circumstances warranted a 

modification of custody; (2) finding that a modification of physical and legal custody was in 

the children’s best interest; (3) modifying the supervision requirement for Zach’s spouse; (4) 

adding a “springing” joint physical-custody provision that would automatically convert 

Lyndsay’s primary physical custody of the parties’ children to joint physical custody if Zach 
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moves within twenty miles of the children’s school; and (5) modifying the division of certain 

child-related expenses. We affirm in part and reverse in part.

I. Facts and Procedural History

Lyndsay and Zach were divorced pursuant to an agreed Decree and a written property 

settlement agreement (PSA) that was incorporated but not merged into the Decree on 

September 19, 2017. Lyndsay and Zach share two minor children, LB and AB. Pursuant to 

the Decree, Lyndsay was given primary physical and legal custody of the children subject to 

Zach’s visitation, including every other weekend visitation, a holiday schedule that varied 

depending on the distance the parties lived from each other, and summer visitation that 

gradually increased each year. The Decree also contained a provision that Zach’s then 

girlfriend (later wife), Kemberly, would not be around the children unsupervised.

Other than child-support matters, the case remained closed until July 17, 2020, when 

Zach filed a motion for contempt claiming that Lyndsay had failed to adhere to the Decree’s 

summer-visitation schedule. On August 4, Lyndsay filed a countermotion for contempt and 

motion to enforce settlement agreement for numerous alleged violations of the Decree. On 

August 26, Zach filed a continued motion for contempt and modification of divorce decree. 

On December 30, Lyndsay filed a second motion for contempt, for order returning custody, 

and for order to appear and show cause due to Zach’s refusal to return the children after 

Christmas visitation. On March 14, 2021, Zach filed an amended motion for change of 

custody and renewed motion for contempt and order to show cause. On April 5, the trial 
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court entered an order appointing an attorney ad litem to represent the interests of the 

children. 

A final hearing on all motions occurred on May 26 and 27, after which the trial court 

made an oral ruling that was reduced to a final order on June 24. The trial court found that 

there had been material changes in circumstance and that it was in the best interest of the 

children that custody and visitation be modified.

The trial court modified legal custody from Lyndsay having sole legal custody to 

granting joint legal custody between the parties. The trial court further ordered that Lyndsay 

would continue to have primary physical custody as long as Zach lived outside of the Little 

Rock area (he lived in Hot Springs at the time of the hearing). But in the event Zach moves 

within twenty miles in any direction of the children’s school, then physical custody would 

automatically convert to 50/50 joint custody with the parties exchanging the children every 

other week. The trial court increased Zach’s visitation, specified holiday and summer 

visitation protocol, and implemented other provisions, including a modification of the 

supervision requirement for Zach’s spouse, Kemberly, and the parties’ division of certain 

child-related expenses. The trial court did not find Lyndsay in contempt, but it did find Zach 

in contempt for failing to pay certain required expenses. Lyndsay filed a timely notice of 

appeal on July 23, and this appeal followed.

II. Standard of Review and Applicable Law

This court reviews domestic-relations cases de novo, but we will not reverse the trial 

court’s findings unless they are clearly erroneous. Doss v. Doss, 2018 Ark. App. 487, 561 
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S.W.3d 348. A finding is clearly erroneous when, although there is evidence to support it, 

the reviewing court on the entire evidence is left with a definite and firm conviction that a 

mistake has been committed. Id. Due deference is given to the trial court’s superior position 

to determine the credibility of witnesses and the weight to be given their testimony. Id.

Whether a trial court’s findings are clearly erroneous turns in large part on the 

credibility of the witnesses, and special deference is given to the trial court’s superior position 

to evaluate the witnesses, their testimony, and the child’s best interest. Cunningham v. 

Cunningham, 2019 Ark. App. 416, 588 S.W.3d 38. There are no cases in which the trial 

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, with all other considerations being 

secondary. Id. 

The party seeking modification of the custody order has the burden of showing a 

material change in circumstances. Jeffers v. Wibbing, 2021 Ark. App. 239, at 7. Courts impose 

more stringent standards for modifications in custody than they do for initial determinations 

of custody to promote stability and continuity in the life of the child and to discourage 

repeated litigation of the same issues. Id. In order to change custody, the trial court must first 

determine that a material change of circumstances has occurred since the last order of 

custody, and if that threshold requirement is met, it must then determine who should have 

custody with the sole consideration being the best interest of the child. Acklin v. Acklin, 2017 

Ark. App. 322, at 2, 521 S.W.3d 538, 539. In custody appeals, this court considers the 
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evidence de novo and does not reverse unless the trial court’s findings of fact are clearly 

erroneous.

II. Discussion

A. Material Change of Circumstances

Because Zach filed a motion for modification of divorce decree wherein he requested 

that legal and physical custody be modified, he carried the burden of proof to prove there 

had been a material change of circumstances that occurred since the Decree was entered that 

warranted a modification of custody. As reaffirmed in Wills v. Wills, 2016 Ark. App. 174, at 

3, with regard to visitation, which is equally applicable to custody;

the party seeking a change in visitation schedule has the burden to demonstrate a 

material change in circumstances that warrants such a change. The primary 

consideration regarding visitation is best interest of the child. Important factors the 

court considers in determining reasonable visitation are the wishes of the child, the 

capacity of the party desiring visitation to supervise and care for the child, problems 

of transportation and prior conduct in abusing visitation, the work schedule or 

stability of the parties, and the relationship with siblings or other relatives. 

The trial court found the following material changes of circumstances warranted a 

modification to visitation and custody, stating from the bench:

I do find that there has been a material change of circumstances warranting a 

change, a modification to custody and visitation. And for any sort of order to be 

modified, even when you have got an ambiguous order you still have to find that 

there’s a material change of circumstances in order to be able to modify that.

I think the biggest material change that I am seeing is communication issues 

and parenting time issues that have been precipitated by ambiguities in the divorce 

decree that I think each party believes that the other is weaponized against the other. 

I know there is some lingering hurt and trust issues. Those have been there all along. 

I have not considered those for purposes of determining whether There has been a 

material change of circumstances, but I just wanted to acknowledge that.
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Additionally, since the divorce, both parties have remarried and are in stable, 

long-term relationships where [LB] and [AB] have siblings on both sides that they love 

and that they like spending time with. I also, I know that around the time of the 

divorce there were some upheaval with Mr. Bell’s employment and income and that 

situation has since stabilized. 

I also believe based on the testimony that I have heard that Ms. Bell has 

whether intentionally or not has alienated Mr. Bell from the children part by 

micromanaging the parenting and by not giving Mr. Bell the space to be the pair that 

he wants to be. So that is what I have taken into consideration in determining that 

there has been a material change in circumstances.[1]

Lyndsay submits that any ambiguities in the agreed Decree do not constitute a 

material change of circumstances because they would have existed when the Decree was 

signed as well as after its entry. She argues that this alone is an insufficient basis for modifying 

custody. She notes that neither party filed a motion alleging ambiguities in the Decree; 

however, Zach testified that the summer-visitation provision was ambiguous, that some 

Decree provisions were vague, and that it would be beneficial if things were more definitive. 

Lyndsay acknowledges that she agreed that it would be best if some modifications were made 

to the visitation provisions—as recommended by the ad litem—including for there to be more 

specific dates and times for Zach’s visitation.

Lyndsay maintains that although both the parties and trial court used the term 

ambiguous, from the record, they all agreed that the Decree just needed more specificity 

regarding visitation. She argues that the trial court should merely have modified certain 

 

1The trial court’s oral findings on this issue were included almost word-for-word in 

paragraph two of the final order.
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visitation provisions to lessen recurring conflicts while retaining as much of the original 

Decree as possible. She contends that because there were no ambiguities regarding physical 

or legal custody, the trial court’s modification of these provisions was not just an attempt to 

clarify and interpret the parties’ intention in the original agreement but rather to change the 

basic terms.

Lyndsay notes that this court has stated that “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, and such an award is reversible 

error where cooperation between the parents is lacking.” Emis v. Emis, 2020 Ark. App. 126, 

at 8–9, 597 S.W.3d 93, 98; see also Hongyang Li v. Yi Ding, 2017 Ark. App. 244, at 12, 519 

S.W.3d 738, 744.

In Hewett v. Hewett, 2018 Ark. App. 235, 547 S.W.3d 138, this court reversed and 

held that the trial court’s order failed to articulate the specific change in circumstances 

warranting modification in custody because the only circumstances referenced in the order 

were the parents’ inability to communicate civilly and work together to make parenting 

decisions, which did not demonstrate a change since this had long been the case and was 

akin to the “scattering of petty complaints” rejected in Byrd v. Vanderpool, 104 Ark. App. 239, 

244, 290 S.W.3d 610, 613 (2009). Id. at 5, 547 S.W.3d at 141. Lyndsay argues that similarly, 

Zach did not prove there had been material changes of circumstances warranting a 

modification of custody
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Despite the trial court’s acknowledging that were lingering hurt and trust issues and 

noting that each party believes that the other is weaponized against the other, it specifically 

stated that it had not considered those things for purposes of determining whether there had 

been a material change of circumstances, stating:

Additionally, since the divorce, both parties have remarried and are in stable, 

long-term relationships where [LB] and [AB] have siblings on both sides that they love 

and that they like spending time with. I also, I know that around the time of the 

divorce there were some upheavals with Mr. Bell’s employment and income and that 

situation has since stabilized. 

I also believe based on the testimony that I have heard that Ms. Bell has 

whether intentionally or not has alienated Mr. Bell from the children part by 

micromanaging the parenting and by not giving Mr. Bell the space to be the pair that 

he wants to be. So that is what I have taken into consideration in determining that 

there has been a material change in circumstances.

We disagree with Lyndsay’s argument that no material changes in circumstances 

warranted a modification of the custody and visitation provisions of the Decree. She 

completely overlooks the evidence before the court indicating that her unilateral decisions 

were detrimentally impacting Zach’s visitation and parenting time with the children. The 

trial court found that Lyndsay had alienated Zach from the children “in part by 

micromanaging the parenting,” and there is ample evidence in the record to support that 

finding. Lyndsay attempted to dictate the amount of consecutive days Zach could exercise 

his visitation—stating that the children told her that they only wanted to be away from her 

for “three sleeps.” She likewise tried to set which part of the holidays she would take, with 

Zach getting what was left over, without considering his teaching or coaching schedule. 
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Moreover, Lyndsay would only approve certain people to be able to drop off and pick up the 

children or to supervise Kemberly when she was around the children. 

Lyndsay attempts to rely on the argument that because the parties cannot 

communicate effectively, joint custody is not feasible. But her position ignores the trial 

court’s finding that she both initiated and exacerbated these problems by micromanaging 

the terms of Zach’s visitation. Moreover, there is testimony from both parties as well as the 

ad litem that recently the parties have been able to effectively communicate about decisions 

related to the children. Accordingly, we hold that the trial court did not clearly err in finding 

that Zach met his burden to prove that there had been a material change of circumstances 

warranting a modification of the visitation and custody provisions.

B. Best-Interest Finding

Regarding the modification of child-custody orders, “[t]he primary consideration in 

child-custody cases is the welfare and best interest of the children; all other considerations 

are secondary.” Hongyang Li, 2017 Ark. App. 244, at 9, 519 S.W.3d at 743. Arkansas 

appellate courts have made clear that

a judicial award of custody will not be modified unless it is shown that there are 

changed conditions that demonstrate that a modification of the decree will be in the 

best interest of the child, or when there is a showing of facts affecting the best interest 

of the child that were either not presented to the circuit court or were not known by 

the circuit court at the time the original custody order was entered.

Erskin v. Stout, 2015 Ark. App. 533, at 6, 472 S.W.3d 159, 163 (quoting Harris v. Harris, 2010 

Ark. App. 160, at 13–14, 379 S.W.3d 8, 15–16). Here, the trial court specifically stated in 

the oral ruling at the end of the two-day hearing:
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Additionally, I find that it is in the best interest of the children to modify 

custody and visitation. The reason I found this is that I think a modification would 

provide more stability and predictability for them. Particularly to the extent that we 

can shore up some of the ambiguities that are in the current decree. I think there will 

be more opportunity for the children to benefit in having Mr. Bell’s input in their 

lives and having additional parenting time and I think, too, having more time with 

siblings and extended family on both sides, which the kids obviously enjoy, and I 

think benefit from. And so that is what I have taken into consideration for purposes 

of determining whether we have got a material change in circumstances and then 

what I think is in the best interest of the children.

I have also considered the bonds that both parents have with the children, and 

I think they need for the children to be able to establish a more significant bond with 

their father.[2]

Lyndsay submits that Zach failed to prove that a modification of physical or legal 

custody was in the best interest of children. She maintains that the undisputed evidence 

reflected that under the current custody arrangement, the children were excelling in school, 

at home, and in extracurricular activities. See Pace v. Pace, 2020 Ark. 108, at 10, 595 S.W.3d 

347, 353 (holding that even in light of parental discord, custody should not be changed 

because the child was “happy, healthy, and intelligent”).

As the primary evidence supporting her position, Lyndsay relies on the testimony of 

the children’s principal, Amy Somers. Ms. Somers testified that both children were thriving, 

had lots of friends, and were highly involved in school and sports. The parties’ son, LB, had 

the highest academic average in his class, displayed no behavioral issues, and received the 

good-character award. Similarly, the parties’ daughter, AB, had great grades, was an honor-

 

2The trial court’s oral findings regarding best interest of the children were restated in 

large part in paragraph 3 of the final order.
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roll student, displayed no behavioral issues, and received the good-character award. 

According to Ms. Somers’s , the children did not seem to have been adversely affected by the 

parties’ custody dispute. Lyndsay notes that that LB’s soccer coach testified similarly.

Ms. Somers described Lyndsay as a highly involved parent in the children’s education 

but could not recall ever seeing Zach at the school and had not had much interaction with 

him except when he requested documentation on the children’s absences and grades. 

Further, she explained that because it was Kemberly who requested certain documentation—

who is not a parent with custody or educational rights and was subject to supervised 

visitation—the information could not be given to her. However, Ms. Somers also noted that 

she then called Zach directly to explain the school’s protocol and drove the requested 

documentation to his house in Hot Springs.

Lyndsay also notes that Zach acknowledged that she had not made any decisions that 

he found to be contrary to the children’s best interest regarding their health, education, or 

extracurricular activities. His only concern had been her not coordinating scheduling with 

him, which she notes the Decree did not require. Even assuming all of Zach’s complaints are 

taken as true and undisputed, Lyndsay cites Gray v. Gray, 101 Ark. App. 6, 269 S.W.3d 834 

(2007), as factually analogous. She urges that in spite of overwhelming evidence as to both 

children’s excellent health, safety, education, and welfare in her care, the trial court 

drastically changed much about the children’s lives without sufficient evidence that such a 

change to physical or legal custody would be in their best interest. 
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We disagree and note that the trial court relied on a showing of facts affecting the 

best interest of the children that were not known by it when the original custody provisions 

were entered as part of the Decree—including clarifying what the parties and trial court 

agreed were ambiguities in the original Decree; providing more opportunities for the 

children to benefit in having Zach’s input in their lives through additional parenting time; 

having more time with subsequently born half siblings and extended family on both sides; 

and the need for the children to be able to establish a more significant bond with their father. 

Additionally, the record indicates that the trial court found Zach to be more credible than 

Lyndsay, which appears to have weighed heavily into the decision. As previously stated, this 

court gives special deference to the trial court’s superior position to evaluate the witnesses, 

their testimony, and the child’s best interest. See Cunningham, supra. Accordingly, we affirm 

the trial court’s best-interest finding.

C. Modification of Supervision Requirement for Kemberly

Paragraph 3(f) of the Decree states:

That the parties agree the minor children will not be around Kemberly George 

unsupervised, even if the Defendant and Ms. George marry. The parties agree that 

the supervisors for Ms. George will include the Defendant, Gordon Bell, Rena 

McInturff and/or Sarah Esmail. Additional supervisors may be added by the parties’ 

mutual agreement in writing with the written agreement forwarded to the Court. 

Each supervisor must understand and agree that the supervisor must be in the 

physical presence of the children at all times that Ms. George is present.

The supervision requirement for Kemberly was included in the Decree because of 

Lyndsay’s concerns about Kemberly’s mental health. Lyndsay submits that she continued to 

have concerns based on Facebook posts that Kemberly made about “being properly 
13

medicated to balance manic episodes” and hitting commercial vehicles. Lyndsay submits that 

through written discovery requests, she attempted to learn more information about 

Kemberly, but she maintains that Zach refused to provide any information, claiming it was 

not relevant to the case. Similarly, Zach refused to answer questions about Kemberly’s mental 

health in his deposition. 

The record indicates that the ad litem investigated Kemberly’s mental-health issues 

and obtained related medical records. The ad litem’s report explained that Kemberly’s 

mental health records predate the parties’ divorce and continue after it. The report reflects 

that Kemberly previously had an inpatient stay with a medical provider but that she was not 

currently in treatment (and had not been since March 2020) or on medication. Ultimately, 

the attorney ad litem recommended some changes to the supervision requirement contained 

in the Decree, specifically to allow more supervisors and to allow short periods of 

unsupervised time with the children, and Lyndsay did not object to these recommended 

changes.

The trial court terminated the supervision requirement, specifically noting Zach’s 

assurance in his testimony that he would not the leave children unattended if she began 

showing signs of mental-health issues. Paragraph 14 of the final order provides:

With regard to the supervision requirement on Kemberly Bell, the Court 

heard no testimony in regard to Kemberly Bell that she has put the parties’ children 

in any danger. The concerns about her mental health are ones that are recent and 

weren’t the source of concerns that precipitated the supervision requirement in the 

original Decree. The Ad Litem has followed up with Kemberly Bell to confirm that 

she has sought out and is receiving the mental health treatment she needs. The 

supervision provision regarding Kemberly Bell in the original Decree is removed. Mr. 
14

Bell is ordered to not leave the children unattended in Kemberly’s care should she 

show signs of having any mental health issues, as the Court trusts that Mr. Bell will 

recognize that since that would be a concern for the other two kids they share.

Lyndsay argues that it was Zach burden to prove that there had been a change of 

circumstances—specifically that Kemberly’s mental health was no longer of concern—to 

support the trial court’s termination of the supervision requirement. She urges that Zach 

failed to present such proof, despite her acknowledging that much of his case focused on 

this issue. Regarding paragraph 14, Lyndsay requests that this court instruct the trial court 

to amend this provision to arrange for more supervisors and only limited periods of 

unsupervised time consistent with the ad litem’s recommendations.

We hold that the record supports the trial court’s decision on this issue. Despite 

Lyndsay’s stated concerns regarding Kemberly’s Facebook posts, she failed to call Kemberly 

as a witness to develop this issue before the trial court. Although Zach does seem to indicate 

in his testimony that Kemberly is bipolar, it is unclear whether that testimony was related to 

an actual medical diagnosis or simply his impression. What is clear from the record is that it 

is undisputed that Zach’s father does have a bipolar diagnosis, and Lyndsay testified clearly 

that she does not have an issue with him supervising the children. 

The trial court acknowledged that the issue of mental health is a serious topic and 

noted that the evidence supports that Kemberly had postpartum depression as well as 

depression issues after a motor-vehicle accident. The trial court found that there had been 

no evidence presented to show that Kemberly either had been or was at the time of the 

hearing a potential harm to any of the children. She was taking care of her own two children, 
15

she was seeking help from medical professionals when the need arose, and undisputed 

testimony indicated that the children had a good relationship with her. Moreover, Zach 

testified that he would be willing to revisit the issue if concerns subsequently arose regarding 

the effects of Kemberly’s mental health as related to the children. Lyndsay, in essence, argues

that we should reweigh the evidence in a manner that is more favorable to her, but credibility 

determinations are left to the trial court, and this court will not reweigh the evidence. E.g., 

Schnick v. Russell, 2022 Ark. App. 212, at 11, __ S.W.3d __, __.

D. “Springing” Joint-Physical-Custody Provision

In paragraph 5 of the Final Order, the trial court ordered:

[Lyndsay] shall continue to have primary physical custody of the minor children for 

so long as [Zach] lives outside of the Little Rock area. In the event [Zach] moves within 

twenty (20) miles in any direction from the minor children’s school. custody shall 

then convert to fifty-fifty (50/50) joint physical and legal custody with the parties 

exchanging the children week-on and week-off on Sundays at 6:00 p.m.

Lyndsay argues that there is no precedent for such a decision and that the trial court 

clearly erred by ordering physical custody to automatically convert to joint custody upon 

Zach’s relocating closer to the children’s school. We agree.

This court has held, in the context of child-custody modification, that an appellant 

cannot use the circumstances he or she created as grounds to modify custody. Jeffers, 2021 

Ark. App. 239, at 9. “Our supreme court has been clear that relocation alone is not a change 

in circumstances warranting a change in custody nor are circumstances created by the party 

seeking the modification.” Id. In Jeffers, Jerry filed a motion for modification based on 

numerous circumstances, including that he had relocated to live closer to the minor child 
16

and his work schedule had changed, among other reasons. Jeffers, 2021 Ark. App. at 10. The

court held that while Jerry’s decision to move closer to the child was commendable, it was a 

change that was created by Jerry voluntarily. Id. Jerry’s relocation, his developing relationship 

with the child, and the change in his work schedule were all circumstances attributable to 

Jerry and were determined to be insufficient, standing alone, to support a material change 

in circumstances. Id.

Lyndsay maintains that this “springing” joint-custody provision was clearly erroneous

because it is evident from the provision and the trial court’s ruling that it was Zach’s 

residential relocation alone that warranted the modification of physical custody. Specifically, 

the trial court found that under the present circumstances, which included Zach’s residing 

in Hot Springs, Lyndsay should continue to be the children’s primary physical custodian. 

Therefore, because Zach alone had control over his residence, it was a change created by 

Zach voluntarily, and the “springing” joint-custody provision is contrary to Arkansas law.

The provision would modify the physical custody of the children without giving 

Lyndsay a chance to be heard on whether the change in custody would be in the best interest 

of the children. The trial court did not impose any limitations or other conditions on Zach’s

potentially moving within twenty miles of the children’s school. For example, it neither 

imposed a condition that Zach’s move had to occur within a certain amount of time nor

took into consideration any other material change that might occur—such as Zach’s moving 

to a residence that is unsafe or unsuitable, a change in his marital status that might limit his 

ability to care for the children, a decline in his or his wife’s physical or mental health, a 
17

variation of his work schedule or income, or any number of other material changes that 

might impact the physical-custody provision.

Arkansas uses a present-based analysis when analyzing custody issues, and trial courts 

must examine the changes and best interest of the children presented as evidence to the 

court at the time of the final hearing, not changes that may occur weeks, months, or years 

down the road. See Acklin v. Acklin, 2017 Ark. App. 322, at 2, 521 S.W.3d 538, 539 (holding 

that material changes had to have occurred since the last order of custody). Because the final 

order includes the springing provision that would automatically change primary physical 

custody upon the happening of a prospective event after the order of custody is entered, the 

provision is contrary to Arkansas law, similar to this court’s reversal of an automatic 

escalation clause for alimony, which occurred in Kelly v. Kelly, 2016 Ark. App. 272, 496 

SW.3d 391. 

In Acre v. Tullis, 2017 Ark. App. 249, 520 S.W.3d 316, this court held that an 

agreement that a change of custody would occur if the child did not attend a school in a 

particular school district was not enforceable. In his concurrence, Judge Murphy pointed out 

that the child’s best interest is paramount in the determination of who should exercise care, 

custody, and control over the child and is instructive with respect to the self-executing 

relocation provision:

[T]he provision at issue here goes even further than the one in Stills [v. Stills, 2010 

Ark. 132, 361 S.W.3d 823.] in that instead of attempting to waive a legal 

presumption, it simply changes custody upon the occurrence of an agreed-upon event. 

Our appellate courts have regularly and often said that the child’s best interest is the 

paramount consideration in any situation in which the trial court is deciding who 
18

should exercise care, custody, and control over the minor child. See, e.g., Furr v. James, 

2013 Ark. App. 181, at 4, 427 S.W.3d 94, 96 (2013). Self-executing custodial 

provisions do not even allow a court to pay lip service to a best-interest analysis, and 

this is in complete derogation of our long-standing principles. See also Sarah 

Abramowicz, Contractualizing Custody, 83 Fordham L. Rev. 67, 87 (2014) (“Courts 

have largely refused to enforce agreements providing for an automatic change of 

custody upon an agreed-upon event, even where the agreement has been incorporated 

into a court order.”).

Id. at 8, 520 S.W.3d at 322 (Murphy, J., concurring).

An automatic change of physical custody from Lyndsay to joint physical custody 

simply if Zach moves within twenty miles of the children’s school would remove the trial 

court from the determination of whether the change in physical custody is in the children’s 

best interest at the time it occurs. Because an automatic change-of-custody provision does 

not allow the trial court to determine the children’s best interest at some point in the future 

when the provision is triggered, we hold that it is unenforceable; accordingly, we reverse on 

this point.

E. Modification of the Child-Related Expenses

Lyndsay’s final argument is that the trial court, without legal authority to modify the 

parties’ contractual agreement, modified the parties’ PSA. Paragraphs 17 through 20 of the 

Decree required Zach to pay half of certain expenses of the children. Paragraphs 33 and 34 

of the final order modified these provisions, stating: 

33. Fees for agreed-upon extracurricular activities shall be divided equally. Neither 

party will commit the children to activities that will occur during the other parent’s 

parenting time without agreement.

34. The parents shall equally divide the costs of school supplies, uniforms, and 

agreed-upon tuition. [Zach] shall no longer be required to pay [Lyndsay] $100.00 each 
19

year for these expenses. The party paying for school supplies, uniforms, and agreed 

upon tuition shall submit copies of payments to the other party and the other party 

shall be reimbursed to the other party with documentation within thirty (30) days of 

receipt of the same through Our Family Wizard.

Lyndsay argues that Zach failed to introduce sufficient evidence to prove that he was unable 

to pay these expenses. She notes that the financial obligations from the PSA were merged 

but not incorporated into the Decree.

Lyndsay also argues for the reversal of the trial court’s findings set forth as follows in 

paragraph 42 of the Final Order:

42. There are also modifications of the Decree that are warranted with regard to 

the sharing of expenses in part because of the coparenting conflict that has come out 

of these and in part because of the financial burden that these expenses are creating 

for [Zach]. It is in the best interest of the children to readdress those expenses, as it is 

important for the parties to have the resources they need to be able to provide 

clothing, trips, and activities for the children to do. Accordingly, the payment of the 

children’s tuition, uniforms, and school supplies shall be made as stated in Paragraphs 

9 and 34, the payment of healthcare expenses shall be split equally as stated in 

Paragraph 30, and the payment of extracurricular expenses shall be split as stated in 

Paragraph 33.

Although not providing additional detail regarding paragraph 42, Lyndsay submits 

that it was clearly erroneous for the trial court to have modified the tuition and activity-fee 

provisions and urges the trial court’s decision should be reversed and remanded with respect 

to paragraphs 33, 34 and 42 of the final order with instructions to keep the parties’ 

agreement in the Decree from paragraphs 17, 19 and 20 intact.3

 

3Although Lyndsay states that the trial court modified paragraphs 17 through 20 of 

the PSA, which also includes the requirement that Zach keep the children on his health 

insurance (which was changed to Lyndsay’s husband’s insurance) and that Zach pay $100 to 
20

A court may not modify an independent contract that is made part of a divorce 

decree. Darcey v. Matthews, 2017 Ark. App. 692, 537 S.W.3d 780. Questions relating to the 

construction, operation, and effect of independent property settlement agreements are 

governed, in general, by the rules and provisions that apply to other contracts generally. Id. 

When contracting parties express their intentions in a written instrument in clear and 

unambiguous language, it is the court’s duty to construe the writing in accordance with the 

plain meaning of the language employed. Id. In Darcey, this court held that Matthews’s

obligation for payment of all medical expenses, set forth in the PSA, was not child support 

but rather was in addition to, and not in the form of, child support, and modifying it to 

require each party to pay half was impermissible.

Here, the only thing Lyndsay argues is that the trial court erred in modifying the PSA 

to read that Zach did not have to pay for tuition or extracurricular-activity fees unless he 

agreed—the PSA simply stated that the parties would split the cost of the children’s private 

schooling and “camps, sports, sporting equipment and uniforms, school trips, church trips, 

and other extracurricular activities.” It did not specifically state that Zach first had to agree 

to such activities. Accordingly, pursuant to Darcey, we hold that the trial court erred when it 

modified those provisions, and we specifically reverse the two specific provisions argued by 

Lyndsay.

Affirmed in part; reversed in part.

 

Lyndsay every July for school supplies, the only point she raises is that the trial court found 

that “Zach did not have to pay for tuition or extracurricular activity fees unless he agreed.”
21

BARRETT and MURPHY, JJ., agree.

James, House, Swann & Downing, P.A., by: Kayla M. Applegate, for appellant.

One brief only.