dissenting.
|flThe majority decision is wrong for two primary reasons. First, it does not apply controlling supreme court precedent. Second, it removes custody decision-making from the circuit court, transforming a question of fact into a question of law, all the while overlooking some important policy considerations. Therefore, I dissent.
1. The Majority Opinion Violates Stare Decisis
Our supreme court has already addressed the issues involved in the current case in a previous, factually-indistinguishable case. See Lewellyn v. Lewellyn, 351 Ark. 346, 93 S.W.3d 681 (2002). In both cases, the divorce decree stated that the parents had joint custody and contained additional language stating that the mother was the “custodial parent” (Lewellyn) and “primary physical custodian” (this case). In both cases, the parents evenly divided physical custody.. In both cases, the mother attempted to move, and both parents filed competing motions to change custody. In Lewellyn, the supreme court ruled that when the mother attempted to move, the parties’ ability to cooperate as joint custodians was destroyed and a material change in circumstances had occurred. Accordingly, the court reasoned, the issue was change-of-custody and a relocation analysis was not appropriate. Lewellyn, supra.
In the current case, the mother and her new husband moved out of state, and the parties attempted to continue to exercise joint custody, which was unsuccessful. The parties filed cross motions to change custody. The circuit court, following Lew-ellyn, determined that the case was a change-of-custody case instead of a relocation case and awarded the father custody based on the child’s best interest (after finding a material change in circumstances).
ImThe majority has disregarded Lewel-lyn. This it cannot do. Our court is required to follow the supreme court, and we cannot overrule its decisions. E.g., Rice v. Ragsdale, 104 Ark.App. 364, 292 S.W.3d 856 (2009). Further, the doctrine of stare decisis dictates that courts follow precedent and is designed to lend predictability and stability to the law. See Chamberlin v. State Farm Mut. Auto. Ins. Co., 343 Ark. 392, 36 S.W.3d 281 (2001). In other words, stare decisis promotes consistency in decision making and provides guidance for lower courts. It is the principle that cases with similar fact patterns will be treated the same. There are times when past precedent is overturned, but that is a decision for the highest court, not for intermediate courts.
Our supreme court had the opportunity to abrogate Lewellyn in its Hollandsworth decision; it did not do so. Here, the majority opinion has failed to follow our supreme court’s precedent in Lewellyn. In so doing, it has injected confusion into our change-of-custody and relocation case law.
2. The Majority Opinion Alters the Standard of Review in Child-Custody Cases
Even if our court had the authority to supersede the supreme court, the majority’s decision would still be incorrect. In fact, the decision fundamentally alters the way appellate courts review change-of-custody cases. One of the foundational premises of our child-custody case law is that appellate courts give “special deference to the superior position of the trial court to evaluate and judge the credibility of the witnesses in child-custody cases” because “we know of no cases in which the superior position, ability, and opportunity of the trial court to observe the parties carry as great a weight as those involving children.” Carver v. May, 81 Ark.App. 292, 296, 101 S.W.3d 256, 259 (2003). The majority opinion eludes this longstanding deference to the circuit court by characterizing a question of fact as a question of law.
Formerly, whether the parties had joint custody was a fact question, reviewed under our deferential standard of review. For example, in Chastain v. Chastain, which the majority favorably cites, we upheld the circuit court’s interpretation of the parties’ custody arrangement as “not clearly against the preponderance of the evidence.” 2012 Ark. App. 73, at 10, 388 S.W.3d 495, 501.
Now, under the majority’s reasoning, whether parents have a joint-custody arrangement or a primary-custody arrangement is a question of law. All that matters is that certain magic words of limitation appear in the divorce decree. If so, then the circuit court is now required to conduct a relocation analysis under Hollandsworth as a matter of law. In so doing, it must ignore what else is written in the decree and settlement agreement, and it also must ignore what is actually happening in the care of that child. Essentially, form prevails over function, and the child’s fate is left to what the divorce attorney, or an online form, put in the divorce decree under the guise of “primary physical custodianship,” when in fact the parties have agreed to and are practicing true joint-physical custody.
In this case, the divorce decree was at war with itself: on one hand, it said that the mother was primary physical custodian; on the other hand, it said that the parents were to divide physical custody evenly. As the fact-finder, the circuit court had to resolve this inconsistency. The court heard testimony that, since the divorce, the parents had in fact exchanged custody evenly as per the divorce and settlement agreement and that the child had 112spent an equal amount of time with each parent. Based on the testimony and the decree, the court found that the parents had a true joint-custody arrangement and that neither was entitled to the Hollands-worth presumption.1 This finding was not clearly against the preponderance of the evidence, and we should affirm.
One final note: I also think it is useful to consider the policy behind the relocation presumption when one parent truly has primary custody. It makes sense that if a child resides primarily with one parent and that parent is the primary caregiver, then there should be a presumption in favor of the child moving with that parent if that parent needs to relocate. Continuity is important with children. That principle is not applicable when the child spends equal time with both parents, and both parents are co-caregivers in the truest sense. In these cases, the Hollandsworth presumption should not automatically apply solely because the decree says one party is “primary physical custodian.” Instead, the circuit court should consider the decree and settlement as a whole and also take into account how the parents actually divide custody in practice. By doing this, the circuit court can tailor its decision to facts of the particular case. The majority’s cookie-cutter approach, however, prohibits the court from conducting a case-by-case analysis, and, in the end, limits full consideration of the child’s best interest.
HARRISON and GRUBER, JJ., join.
. We have reaffirmed Lewellyn's distinction between "joint-custody-relocation" cases and "custodial-parent-relocation” cases in a post-Hollandsworth decision. Gray v. Gray, 96 Ark.App. 155, 158, 239 S.W.3d 26, 29 (2006) ("The [supreme] court made it clear that joint-custody-relocation cases are different from custodial-parent-relocation cases.").