{ "id": 6142603, "name": "Tori Romeo BENEDIX v. Richard Randall ROMEO", "name_abbreviation": "Benedix v. Romeo", "decision_date": "2006-03-15", "docket_number": "CA 05-418", "first_page": "412", "last_page": "423", "citations": [ { "type": "official", "cite": "94 Ark. App. 412" }, { "type": "parallel", "cite": "232 S.W.3d 493" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "354 Ark. 483", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 36090 ], "weight": 2, "year": 2003, "pin_cites": [ { "parenthetical": "reversing trial court's denial of appellant's relocation petition where the trial court found that the children were better off remaining in Arkansas because of stability and the added benefit of their relationship with their paternal grandparents" }, { "parenthetical": "reversing trial court's denial of appellant's relocation petition where the trial court found that the children were better off remaining in Arkansas because of stability and the added benefit of their relationship with their paternal grandparents" } ], "opinion_index": 0, "case_paths": [ "/ark/354/0483-01" ] }, { "cite": "491 A.2d 606", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1984, "opinion_index": 0 }, { "cite": "353 Ark. 470", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1155484 ], "weight": 10, "year": 2003, "pin_cites": [ { "page": "475" }, { "page": "656-57", "parenthetical": "internal citations omitted" }, { "page": "485" }, { "page": "663-64" }, { "page": "661" } ], "opinion_index": 0, "case_paths": [ "/ark/353/0470-01" ] } ], "analysis": { "cardinality": 945, "char_count": 26254, "ocr_confidence": 0.755, "pagerank": { "raw": 9.505882454708161e-08, "percentile": 0.5223482141236806 }, "sha256": "0f938ca1646cb0ebf1e646fe5b1b24ebdc4a61d2dfc1e03ddfc3fc958c173f73", "simhash": "1:d22679e84a2107cd", "word_count": 4403 }, "last_updated": "2023-07-14T18:52:04.997483+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Hart and Neal, JJ., agree." ], "parties": [ "Tori Romeo BENEDIX v. Richard Randall ROMEO" ], "opinions": [ { "text": "Sam Bird, Judge.\nAppellant, Tori Romeo Benedix, mother and custodian of Bailey Michelle Romeo, her eleven-year-old daughter, appeals the trial court\u2019s denial of her motion to move out of state with Bailey. Appellee is Bailey\u2019s father, Richard Randall Romeo, from whom appellant was divorced in 1996. On appeal, appellant contends (1) that the trial court erred by relying upon and incorporating into its order the report and findings of the attorney/guardian ad litem, even though they were never introduced into evidence and were not part of the record, and (2) that the trial court erred in finding that appellee overcame the presumption in favor of allowing a custodial parent with primary physical custody to relocate with the child. We reverse and remand.\nAppellant and appellee were married in 1989; one child, Bailey, was born of the marriage. Appellant, who resides in Conway, Arkansas, is the custodian of Bailey and is married to Danny Benedix.\nOn March 3, 2004, appellant filed a motion to move with her daughter to appellant\u2019s hometown of Harrah, Oklahoma. In the motion, she stated that her plans were not meant to \u201cin any way interfere with [appellee\u2019s] relationship with his daughter.\u201d Furthermore, she averred that appellee\u2019s visitation would continue, with the parties meeting halfway between Conway and Harrah to accomplish the exchange. Appellee subsequently petitioned the court to appoint an attorney/guardian ad litem to represent Bailey, and on June 21, 2004, the court did so.\nAt the hearing on the motion to move out of Arkansas, appellant testified that her family and her husband\u2019s family were from Harrah, Oklahoma. She said that she had lived in Harrah for twenty-nine years before she married appellee, and that all of Bailey\u2019s aunts, uncles, cousins, and grandparents on her side lived in Harrah. She testified that Harrah had \u201cschools accredited with the State\u201d and that it was a small town of \u201cabout five thousand\u201d near Oklahoma City. She said that it took four-and-a-half hours to drive from Conway, Arkansas, to Harrah, and that Sallisaw, Oklahoma, was the halfway point. She explained that relocation would allow her to \u201cbe able to spend time and be part of our family again\u201d and said that she was not related to anyone in Conway. She said that she came to Conway when she married appellee in 1989 and that appellee\u2019s parents were in Conway.\nAppellant opined that Bailey would benefit by relocating to Oklahoma because she would be able to spend time with extended family. She said that she wanted to see Bailey grow up with her cousins and be able to bond with them. She also said that she had \u201choped to move home for years\u201d and that there were recent events in her family suggesting that she needed to move home. She acknowledged that appellee had played an active role in Bailey\u2019s life and she testified that her desire to move was not an attempt to thwart appellee\u2019s visitation with Bailey. She said that she would comply with \u201cwhatever visitation schedule [was] promulgated by the Court\u201d to allow Bailey to have time with appellee and his family in Conway.\nAppellant explained that, pursuant to the divorce decree, appellee had visitation with Bailey every other weekend and every Wednesday. She said that appellee took Bailey to school on Thursday mornings and that major holidays were divided. According to the appellant, appellee received visitation for seven weeks during the summer months \u2014 from the time school was out until it started again. Appellant said that she was willing to continue the seven weeks of summer visitation, in addition to every other weekend and half of the major holidays. She proposed Sallisaw as the exchange point. She said that she was aware that appellee\u2019s father was ill with cancer and she recognized that this could call for additional time to be spent by Bailey with appellee\u2019s family.\nOn cross-examination, appellant said that appellee coached Bailey in extra-curricular activities and that he had done so for six years. According to appellant, this required two or three days a week of contact between appellee and Bailey. She said that appellee attended Bailey\u2019s softball games and admitted that Bailey was \u201cvery close\u201d to her paternal grandparents. She said that she had not been aware that appellee\u2019s father was sick at the time she had filed the motion to move out of state.\nAppellant also testified that, before she decided to move, she assessed the schools in Harrah to see how they compared to those in Conway. She conceded that she did not know that Harrah\u2019s test scores were lower on a national average than those of schools in Conway. After introducing evidence of statistics showing that test scores in the Conway School District were higher than those in Harrah, appellee\u2019s counsel questioned appellant about the difference. Appellant responded that the differences in test results at the two school districts did not concern her, and she thought that with a smaller school district Bailey would have \u201cmore advantages\u201d and \u201cmore personalized schooling.\u201d\nAppellant said that Bailey had two older brothers in Conway and that \u201cshe is bonded to them and has had contact with them her whole life.\u201d She also said that Bailey did not have contact with her paternal grandparents on a daily basis, but she (Bailey) saw them every other weekend, and Bailey\u2019s grandfather picked her up from school sometimes on Wednesdays.\nAppellant further testified that she was unemployed, but she felt that it would be \u201ceasy\u201d to find ajob in Oklahoma. She said that two hair salons had offered her work. She also said that, during visits to Oklahoma, she stayed overnight with her husband\u2019s family but also visited her family. After appellee introduced evidence purporting to show that appellant\u2019s sister Katherine was a convicted felon, appellant said that she did not know where Katherine was and had not had contact with her for several months. She admitted that her sister had drug problems, and said that she would classify her sister as an \u201caddict,\u201d but claimed not to know that her sister was a felon. Appellant said that her sister had moved back in with their mother about two years ago and that she lived there \u201con and off.\u201d She explained that her sister was allowed to stay at their mother\u2019s house provided that she was in by ten o\u2019clock, that she held a steady job, and that she was clean from drugs and alcohol. She said that her sister had not followed the rules and was no longer living with their mother. She stated that their mother had custody of Katherine\u2019s daughter, Kristyn, and that she wanted to help take care of Kristyn because her mother worked \u201cfull time.\u201d\nAppellant said that she did not anticipate having to work evening hours in Harrah and that she thought she would be able to \u201cpick and choose\u201d what she would do. She said that her husband had two \u201cvery good\u201d job offers that would not require her to work as much so she could stay home \u201cmuch more.\u201d She stated that she would work \u201cpart time\u201d in Oklahoma. She also said that she thought her two older sons, who lived in the Conway area, would follow her to Oklahoma, but she was not sure of this.\nAppellee also testified. He said that he was an agriculture teacher at Conway High School and that he had been there for nineteen years. He also said that he was the \u201cFFA\u201d advisor and that Bailey had participated with him in conventions and leadership camps, and that she went to contests and showed animals at the fair.\nAppellee said that he had coached Bailey in almost everything she had done. He said that he coached her in tee ball when she was five years old, and that he had been coaching her ever since. According to appellee, these activities would occur two or three days a week. He said that, when Bailey was in grade school, he would have lunch with her. Appellee also said that Bailey went duck hunting with him, that he watched Bailey dance, and that he had been to Bailey\u2019s orchestra activities.\nAppellee stated that his parents picked Bailey up from school almost every Wednesday and took her to get something to eat, helped her with homework, and so forth. He said that Bailey was very close to his parents. He also testified that his father had inoperable bladder cancer and heart problems and that Bailey was the only grandchild in the family.\nAppellee opined that, if Bailey moved, she would not have the same opportunities to participate in the activities that she enjoyed in Conway. He said that Harrah did not have a school-based orchestra or a middle school volleyball team. He also said that \u201cthe every other weekend type deal\u201d was \u201cjust not the same.\u201d He conceded that Bailey could get into an FFA chapter in Harrah, but explained that most activities took place during the school days or school weeks and that he could not necessarily participate. He said that he thought it would be \u201cvery detrimental\u201d if Bailey was not in Conway and able to share these activities with him. He also said that he helped Bailey \u201cto be a good person\u201d and that he provided \u201cstability\u201d for her.\nAppellee testified that if Bailey moved, weekend visits would involve about ten hours of travel time for Bailey, to and from Harrah. He said that this would mean that \u201ca lot\u201d of visitation time with Bailey would be \u201con the road.\u201d He expressed concern about the education that Bailey would receive in Harrah, stating that the Harrah School District was below poverty level and that the Conway School District was better as far as test results. He said that his new wife taught at Bob Courtway Middle School in Conway and that she \u201ckeeps an eye\u201d on Bailey. He also said that he was concerned about Bailey\u2019s aunt being a convicted felon. In appellee\u2019s opinion, Bailey and her cousin Kristyn did not get along. Appellee also testified that Bailey\u2019s other cousins in Harrah were a few years older than Bailey. Appellee opined that the move was not in Bailey\u2019s best interest.\nAppellee testified that, according to his internet research, approximately thirty-three percent of Harrah high school graduates went on to a four-year college, while almost double that number of graduates from Conway High School went on to a four-year college. Appellee also testified that he was not sure how often Bailey saw her older brothers, but that, to the best of his understanding, Bailey\u2019s brothers were not planning to move to Oklahoma. He said that he felt that the move to Oklahoma would disrupt his relationship with Bailey very much.\nOn cross-examination, appellee said that Bailey\u2019s lack of opportunity to participate in activities was a big reason for his objection to the move. He said that the opportunities were \u201cnot there\u201d for Bailey to receive a better education in Harrah than in Conway. He also said that the situation with Bailey and Kristyn concerned him, explaining that Bailey seemed \u201cagitated\u201d after the two were together. He opined that the impact of the relocation would be that Bailey would not feel as close to his side of the family anymore, and that she would feel \u201calienated.\u201d\nAccording to the attorney/guardian ad litem, Bailey refused to state any preference about the move. Neither the appellant nor the appellee chose to call Bailey as a witness.\nFollowing the hearing, the trial court engaged in a lengthy recitation of the factors upon which it relied in reaching its decision to deny appellant\u2019s motion to relocate. During this recitation, the court made the following comments:\nSchools became an issue. There are schools in both locations. One may test a little better than the other, but I\u2019m not necessarily a big believer that, just because one school has five thousand people and the other has four hundred, the five thousand is better. . . . Now, that being said, there are certain things obviously, that bigger school districts can offer that smaller ones can\u2019t. . . . Obviously, there are things that [Harrah schools] can\u2019t do that... a middle school here can do, or a high school can do here, because of population, and taxes, and all the other things we know about. That being said, the school here seems to be a little bit better \u2014 marginally better, as far as testing, and marginally better for some things that are offered to her that may or may not be offered in Harrah.\nI think, in the end... Bailey is better suited to stay here, at this point in time. I\u2019m not going to allow... the motion to relocate. I thinks she\u2019s in a stable situation in the school here. She has family here that she has [a] relationship with. All the other is prospective; she has something here that ... by all testimony, has benefited her. I think, to pull her out of a stable, well-adjusted situation and put her in another situation to be with some folks she may or may not know ... some of the testimony was [that appellant] has not even had any contact with her own sister since February, didn\u2019t even know where she was. Her mom works full time and is not an invalid, takes care of housework, yard work, and those types of things, and is trying to raise another child, another \u2014 her grandchild; has a full-time job there.\nI just think all things being equal, I don\u2019t think they\u2019re all equal. I think it\u2019s more equal here. I just \u2014 I just can\u2019t say they\u2019re equal. I think we know what we have here; we don\u2019t know what they have there. . . .\nI \u2014 I just \u2014 I keep going back to Bailey. And, we didn\u2019t talk or hear from her, but I have an ad litem\u2019s report. I do have both parents here. I just go back to her. She\u2019s in volleyball. She could be in volleyball there, but she\u2019s made a team here. She has relationships with schoolmates, with family. She\u2019s in an orchestra. She may or may not be able to be in a band there. She\u2019s in things here that I think would be detrimental if she\u2019s pulled out. . . .\nOn December 17, 2004, the court entered a written order echoing some of its oral recitations, denying appellant\u2019s motion to move out of state, and stating in part as follows:\n1. That the Court carefully reviewed all exhibits, listened carefully and weighed all testimony, assessed credibility of witnesses, considered Guardian Ad Litem\u2019s report and findings, and counsels [\u2019] arguments.\n2. That the Court considered the Hollandsorth v. [Knyzewski] decision, and weighed all factors set forth therein recognizing the presumption in favor of the custodial parent being allowed to move and that the non-custodial parent has the burden of rebutting that presumption and finds that the Defendant met that burden.\n3. That the Court finds that all action[s] affect and impact minor children; therefore, weighing all considerations, the Court finds that the move would not be in the best interest of the minor child for the following reasons:\na. The father of the child is and has been since birth of the child very actively involved in her rearing and has had extensive visitation with the child since the divorce proceedings such that it would be impossible based upon the distance for the minor child to enjoy a meaningful visitation schedule with her father;\nb. The child is healthy, stable and well adjusted in Arkansas and to pull [her] out of a stable, well adjusted situation to place [sic] in the unknown, recognizing that the Plaintiff testified that she would be living with her mom, who works full time and is raising another grandchild would not be in the child\u2019s best interest;\nc. The child has extended family in Arkansas that are actively involved in her rearing, to which she is bonded;\nd. The school that she would be attending in Arkansas is a better school academically [than] the one she would be attending in Oklahoma based upon testing records[,] and offers a broader range of scholastic events with the child just having made the volleyball team in Arkansas, having worked very hard to obtain and being very proud of making the team; and\ne. The Court finds that the Guardian Ad Litem\u2019s findings and report should be and are hereby incorporated within this Order as if set out word for word in that the Court finds that the Report was well thought out and grounded in fact.\n4. That the Court denies the Defendant\u2019s [sic] Motion to Move Out-Of-State with the minor child in that the Court finds that the Plaintiff [sic] met his burden of proving that the move would not be in the best interest of the minor child.\nAppellant subsequently filed a motion to reconsider, which was denied.\nOn appeal, appellant first contends that the trial court committed reversible error by relying upon and incorporating into its order the report of the attorney/guardian ad litem because the report was never introduced into evidence and is not part of the record. In view of our disposition of this case under appellant\u2019s second point, we need not address this point.\nFor her second point, appellant contends that the trial court erred in finding that appellee overcame the presumption in favor of allowing a custodial parent with primary physical custody to relocate with the child. She offers two arguments to support this point: first, that the trial court erroneously shifted the burden of proof and the burden of persuasion to appellant by requiring her to prove that the move was a real advantage; and second, that based on the five factors set forth in Hollandsworth v. Knyzewski, 353 Ark. 470, 109 S.W.3d 653 (2003), the evidence presented was insufficient to sustain the court\u2019s finding that it was in Bailey\u2019s best interest to deny the motion to move out of state.\nIn Hollandsworth, 353 Ark. at 475, 109 S.W.3d at 656-57 (internal citations omitted), our supreme court set forth the following standard of review in equity cases:\nThis court has traditionally reviewed matters that sounded in equity de novo on the record with respect to fact questions and legal questions. We have stated repeatedly that we would not reverse a finding by a trial court in an equity case unless it was clearly erroneous. We have further stated that a finding of fact by a trial court sitting in an equity case is clearly erroneous when, despite supporting evidence in the record, the appellate court viewing all of the evidence is left with a definite and firm conviction that a mistake has been committed. These common law principles continue to pertain after the adoption of Amendment 80 to the Arkansas Constitution, which became effective July 1,2001.\nThe court in Hollandsworth pronounced a presumption in favor of relocation for custodial parents with primary custody and stated that the custodial parent no longer has the obligation to prove a real advantage to herself or himself and to the children in relocating. See Hollandsworth, supra. The court further held that the noncustodial parent should have the burden to rebut the relocation presumption. Id. In addition, the court stated as follows:\nThe polestar in making a relocation determination is the best interest of the child, and the court should take into consideration the following matters: (1) the reason for the relocation; (2) the educational, health, and leisure opportunities available in the location in which the custodial parent and children will relocate; (3) visitation and communication schedule for the noncustodial parent; (4) the effect of the move on the extended family relationships in the location in which the custodial parent and children will relocate, as well as Arkansas; and, (5) preference of the child, including the age, maturity, and the reasons given by the child as to his or her preference.\nId. at 485, 109 S.W.3d at 663-64.\nAppellant asserts that, although the trial court\u2019s order acknowledged a presumption in her favor, the rationale expressed by the trial court in support of its conclusion demonstrates that the court based its ruling on the belief that appellant failed to prove that the move was advantageous to the child. Specifically, appellant refers to the following statement by the court, which was contained in the order:\nThe child is healthy, stable and well adjusted in Arkansas and to pull [her] out of a stable, well adjusted situation to place [sic] in the unknown, recognizing that the Plaintiff [appellant] testified that she would be living with her mom, who works full time and is raising another grandchild would not be in the child\u2019s best interestf.]\nWe agree with appellant that, although the trial court\u2019s order acknowledged the Hollandsworth decision and its presumption in favor of relocation by custodial parents, the court essentially placed the burden on appellant to prove that the move constituted an advantage to the child. The bases of the trial court\u2019s decision to deny relocation, as reflected in its oral recitations and its written order, are threefold: (1) the distance from Conway to Harrah renders it impossible for appellee to enjoy meaningful visitation with Bailey; (2) Bailey is actively involved with her father and members of her extended family in Conway, whereas the nature of her relationship with appellant\u2019s family in Harrah is uncertain; and (3) the Conway school that Bailey attends represents a known element, whereas the Harrah, Oklahoma, school is an unknown element that \u201cmay or may not\u201d offer Bailey the same opportunities that she enjoys in Conway.\nThe first of these reasons is not supported by the evidence. Appellant and appellee agree that the driving time from Conway to Harrah is approximately four and one-half hours. While this would necessarily eliminate the Wednesday evening visitation presently enjoyed by appellee, as the supreme court noted in Hollandsworth, supra, the \u201cadvantages of the move should not be sacrificed solely to maintain the \u2018same\u2019 visitation schedule where a reasonable alternative visitation schedule is available.\u201d Id. at 481-82, 109 S.W.3d at 661 (quoting Coopero. Cooper, 491 A.2d 606 (N.J. 1984)). We do not consider that the driving distance involved in this case is so formidable as to preclude the court from promulgating a reasonable alternative visitation schedule that would accommodate the interests of the parties and assure that appellee and his family enjoy meaningful visitation with Bailey.\nThe trial court\u2019s second reason for denying relocation is that appellant would be moving Bailey from a healthy, stable environment to which she was adjusted to an environment that is unknown, noting specifically that appellant would be living with her mother and that it would not be in Bailey\u2019s interest to be living in the home of appellant\u2019s mother who works full time and is raising another grandchild. However, from our review of the record, we are unable to find any testimony that appellant would be living with her mother if allowed to move to Oklahoma. Furthermore, under Hollandsworth, supra, it is clearly not appellant\u2019s burden in this case to show that the move would provide an equally or more stable situation for the child. See also Blivin v. Weber, 354 Ark. 483, 126 S.W.3d 351 (2003) (reversing trial court\u2019s denial of appellant\u2019s relocation petition where the trial court found that the children were better off remaining in Arkansas because of stability and the added benefit of their relationship with their paternal grandparents).\nThe same can be said about the trial court\u2019s third reason for denying appellant\u2019s relocation request. There, the court noted the existence of some disparity between the Conway and Harrah school districts\u2019 standardized test scores (i.e., that Conway\u2019s test scores were \u201cmarginally better\u201d), recognized differences between scholastic opportunities offered at the school districts, and discussed the fact that Bailey had made the volleyball team in Conway. However, under Hollandsworth, supra, it was not appellant\u2019s obligation to prove that Harrah\u2019s schools were equal to or better than the schools in Conway. We do not believe that the supreme court\u2019s second factor in Hollandsworth (i.e., that in making the relocation decision, the trial court should consider the educational, health, and leisure opportunities available in the location to which the custodial parent and children will relocate) constitutes a directive that any \u201cmarginal\u201d differences between the quality of the sending and receiving schools shall constitute a basis for denial of a custodial parent\u2019s relocation request in the absence of evidence that the difference is so significant as to cause the court to conclude that attendance at the new school will be detrimental to the interests of the child. Here, there is no evidence of any likelihood that Bailey, if allowed to attend school in Harrah, would not be among the students who would score high on standardized tests, graduate from high school, and attend a four-year college. Nor is there any evidence from which the court could have concluded that Bailey would be detrimentally affected by any reduced level of scholastic or extra-curricular opportunities. In its recitation, the court stated that such opportunities \u201cmay or may not be offered in Harrah,\u201d suggesting that the court did not know whether or not Harrah afforded such opportunities.\nBecause the trial court\u2019s second and third reasons for denying relocation placed the burden on appellant to show that the move to Oklahoma would be advantageous, which is clearly contrary to the holding in Hollandsworth (i.e., that the custodial parent need not prove a real advantage to herself and the children in relocating and that the burden is on the non-custodial parent to rebut the relocation presumption) we hold that the trial court clearly erred in reaching its decision.\nWe recognize that issues relating to appellee\u2019s visitation schedule with Bailey and transportation arrangements must be addressed as a result of this decision. Therefore, we reverse and remand this case to the trial court for further proceedings relating to visitation issues, and for the entry of an appropriate order that is consistent with this opinion.\nReversed and remanded.\nHart and Neal, JJ., agree.\nFrom our review of the record, we are unable to find any testimony that appellant would have lived with her mother had she been allowed to move to Oklahoma.", "type": "majority", "author": "Sam Bird, Judge." } ], "attorneys": [ "Law Office of Odette Woods, PLLC, by: Odette B. Woods, for appellant.", "Helen Rice Grinder, for appellee." ], "corrections": "", "head_matter": "Tori Romeo BENEDIX v. Richard Randall ROMEO\nCA 05-418\n232 S.W.3d 493\nCourt of Appeals of Arkansas\nOpinion delivered March 15, 2006\nLaw Office of Odette Woods, PLLC, by: Odette B. Woods, for appellant.\nHelen Rice Grinder, for appellee." }, "file_name": "0412-01", "first_page_order": 446, "last_page_order": 457 }