dissenting in part and concurring in part.
I concur with the majority’s conclusion that the trial court did not abuse its discretion in denying Shauna’s motion for a continuance, and I also concur that we must reverse and remand for entry of an order consistent with the law regarding modifications of child-support orders. However, 19I dissent from the majority’s decision to affirm the change of custody from Shauna to Matthew. I would reverse the custody change because the trial court clearly erred in finding that Matthew proved a material change in circumstances.
In awarding a change of custody to Matthew only seven months after awarding primary physical custody to Shauna, the trial court made four specific findings in support of its conclusion that Matthew had •proved a material change in circumstances. The trial court did not leave the appellate court guessing on the grounds that constituted the changed circumstances. Those specific findings were:
(1) Shauna has placed the children in a private religious school not accredited with the state;
(2) the children are attending a strict Pentecostal church, which the parties agreed during the marriage that they would not attend;
(3) the children are no longer involved with extracurricular activities; and
(4) the children’s demeanor has changed negatively.
The trial court’s first finding regarding the enrollment at a private religious school was not a change in circumstances at all. At the time of the divorce, the children were already enrolled in the private school. Therefore, any reliance on that finding was clear error.
In my view, the combination of the three remaining findings does not constitute a material change in circumstances. The majority ignores the specific findings by the trial court and instead focuses on Shauna’s disparaging remarks about Matthew and his family to justify a material change of circumstances.
A short summary of the chronology below is helpful. This was a highly contested divorce and child-custody case, which resulted in the court awarding joint custody to both parents with primary physical custody to Shauna, with Matthew receiving visitation and being ordered to pay |inchild support. Before the divorce decree was even entered, Matthew filed a motion to reduce child support because he lost his job. Matthew remarried a few months later, and his new wife has two daughters from a previous marriage who live with them. Each party subsequently filed competing motions for contempt and modifications.
There was testimony in the record that Shauna made disparaging false allegations against Matthew and his new wife in the presence of the children and that her purpose was to alienate the children from their father. However, Shauna disputed that testimony, stating that she does not make disparaging remarks in front of the children, that she encourages a relationship between the children and their father, and that the children should love both parents and hopefully that they do. Shauna admitted she had made disparaging remarks to third parties about Matthew. There can be no doubt that Shauna was attempting to rear the children in a stricter household than that of Matthew. Shauna admitted she was taking the children to a stricter Pentacostal church than she and Matthew had attended during their marriage and that she did not allow her daughter to wear makeup, fingernail polish, or revealing clothing. It was undisputed that when the children were visiting with Matthew and his new wife, the parties’ daughter was allowed to wear makeup, fingernail polish, and less conservative clothing. Hence, there was a philosophical and practical parenting difference between the parties.
The trial court expressed no opinion as to the credibility of the parties on the issue of whether Shauna was alienating the children from Matthew, nor did it make any findings that any of the allegations against Shauna were proven or relevant. The divorce decree contained a provision that neither party would make disparaging remarks about the other party in front of the children. While I do not condone the statements attributed to Shauna, and the evidence |nof parental alienation, if believed, might rise to the level of the issuance of a citation for contempt against Shauna, it does not rise to the level of a material change in circumstances to justify a custody change. I find Carter v. Carter, 19 Ark.App. 242, 719 S.W.2d 704 (1986), to be instructive. In Carter, we held that contempt powers should be used prior to the more drastic measure of changing custody, which is in keeping with the principle that custody is not to be changed merely to punish or reward a parent. Moreover, the trial court did not discuss the evidence of parental alienation in its specific findings that it considered to be the material changes.
I am mindful that if the trial court fails to make findings of fact on material change of circumstances, we are permitted on de novo review to conclude that there was evidence from which the trial court could have found such changed circumstances. See, e.g., Word v. Remick, 75 Ark.App. 390, 58 S.W.3d 422 (2001). Moreover, where the record is silent we will engage in the longstanding presumption that the trial court made the findings necessary to support its order. Ingram v. Century 21 Caldwell Realty, 52 Ark.App. 101, 915 S.W.2d 308 (1996). However, in this case the trial court did make specific findings on changed circumstances, but it did not make any findings or pass on the credibility of the competing evidence regarding Shauna’s alleged attempts to alienate the children. Under such circumstances, I think it is improper to go beyond the specific findings of the trial court and engage in credibility and factual determinations, which are functions entirely vested in the trial court.
Here, the trial court stated that it was changing custody of the children because Shauna was taking the children to a stricter Pentacostal church, the children were not allowed to participate in extracurricular activities, and the children’s demeanor had changed since the trial |12only seven months earlier. In my opinion, this is not a material change in circumstances. Because the trial court did not make a finding of parental alienation on the disputed evidence, and the express findings made by the trial court did not amount to a material change in circumstances, I would reverse its decision to change custody from Shauna to Matthew. I respectfully dissent from the portion of the majority’s opinion that holds otherwise.