ARKANSAS COURT OF APPEALS

DIVISION IV 

No. CV-13-660

GINGER LYNN SAMPLEY, now 

BLACKWELL

APPELLANT

V.

JAMIE RAY SAMPLEY 

APPELLEE

Opinion Delivered February 19, 2014

APPEAL FROM THE CRAWFORD

COUNTY CIRCUIT COURT

[NO. DR-2002-291] 

HONORABLE MICHAEL MEDLOCK, 

JUDGE

AFFIRMED

RHONDA K. WOOD, Judge

Appellant Ginger Sampley Blackwell and appellee Jamie Sampley divorced. Since 

2008, Jamie has had custody of the parties’ now twelve-year-old daughter. Ginger 

challenges the circuit court’s April 13, 2013 order denying her motion to modify visitation 

and motion to modify custody and support. We affirm the circuit court.

In 2010, Ginger filed several motions seeking, among other things, to modify 

visitation, custody, and child support. On July 10, 2012, the circuit court entered an 

agreed order that left custody with Jamie and modified Ginger’s visitation schedule. The 

following month, Ginger filed another motion to modify child custody, citing 

circumstances occurring before the July 10, 2012 order that she alleged amounted to a 

material change in circumstance warranting a change in custody to her. 

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A hearing was held on Ginger’s motion on April 1, 2013. At the beginning of the 

hearing, Jamie’s attorney made an oral motion to restrict testimony to evidence that had 

occurred since the July 2012 order. Ginger did not object, and the circuit court granted 

the motion. At the conclusion of the hearing, the circuit court found Ginger failed to 

present proof of a material change of circumstances. The court also stated that the parties 

should have litigated the evidence presented at the hearing back in July 2012 when 

instead, the parties indicated to the court they reached an agreement which resulted in the 

agreed order. The court denied Ginger’s motion for change of custody and awarded 

attorney’s fees to Jamie.

We review child-custody cases de novo, but we will not reverse a circuit court’s 

findings unless they are clearly erroneous. Taylor v. Taylor, 353 Ark. 69, 110 S.W.3d 731

(2003). Because the question of whether the circuit court’s findings are clearly erroneous 

turns largely on the credibility of the witnesses, we give special deference to the superior 

position of the trial judge to evaluate the witnesses, their testimony, and the child’s best 

interest. Sharp v. Keeler, 99 Ark. App. 42, 256 S.W.3d 528 (2007). 

First, Ginger contends on appeal that the circuit court erred by failing to find a 

material change in circumstances. The record reflects that the judge heard testimony from 

both parties as well as their witnesses. Ginger’s alleged change of circumstances included a 

purported strained relationship between the minor child and her step-mother and the fact 

that the minor child, age twelve, was sometimes left at home alone after school for short 

periods of time. Our court has repeatedly held that in order to make changes to custody or 

visitation, the party seeking modification must first demonstrate that a material change in 

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circumstances affecting the best interest of the child has occurred. Byrd v. Vanderpool, 104 

Ark. App. 239, 290 S.W.3d 610 (2009). Following evidence on these issues, the court 

found that a material change had not occurred. The court admittedly was frustrated that 

the appellant filed her motion only one month after entry of the agreed order. Based on 

the court being in the best position to assess credibility and weigh the evidence, we hold 

that the court’s finding was not clearly erroneous. 

Next, Ginger contends that the circuit court erroneously failed to consider relevant 

evidence supporting a modification in custody. The court limited testimony to incidents 

occurring after the previous hearing and agreed order. In its ruling from the bench, the 

circuit court stated that all of Ginger’s allegations against Jamie could have been litigated at 

the July 2012 hearing and that her proof did not rise to the level of a material change in 

circumstance. Our supreme court has held that when circumstances affecting the best 

interests of the child were not presented to the trial judge at the time the original custody 

order was entered, they can be considered in determining whether a material change of 

circumstances has occurred. Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d 520 (1999). 

This is not the case, however, when the parties were aware of the circumstances and 

entered into an agreement that is approved by the court. Orantes v. Orantes, 2011 Ark. 

159, 381 S.W.3d 758. Here, as evidenced by her pleadings, Ginger knew of the incidents 

prior to the July 2012 agreed order. It thus was not an error for the court to exclude this 

evidence. 

 Finally, the court awarded attorney’s fees to Jamie following the May 2013 hearing, 

and Ginger contends on appeal that if we reverse the circuit court’s other ruling, we 

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should also reverse the award of attorney’s fees to Jamie. Because we are affirming the 

circuit court on all other points, we also affirm the award of fees.

 Affirmed. 

 HARRISON and WHITEAKER, JJ., agree. 

Milligan Law Offices, by: Phillip J. Milligan, for appellant. 

Shannon Foster, for appellee. 

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