dissenting. I respectfully dissent for the reason that I must conclude that the court has merely substituted its judgment for that of the chancellor who was in a far superior position to assess the evidence. Even a material change in circumstances will not relieve one of his judicially imposed obligations if that change, which makes compliance more difficult or even impossible, is brought about by his own action. It is clear to me that this is why the chancellor ruled as he did.
The majority note that there was little change in the affairs of the drilling company between the time of the divorce and the time of the hearing. They base their ruling in part on the fact that appellant was not working for the company and was instead drawing unemployment.
The record shows that although appellant agreed to the amount of alimony awarded he was back in court for modification within six months of the entry of the first order and back again six months after that. He had remarried within four months of the decree and shortly after that he transferred 49% of the company stock to his new wife. The following year he transferred another 41% to her and subsequently she became the sole owner of the company stock. His wife was operating the drilling company but she had hired someone else to do the job appellant formerly did. Appellant had owned a farm, livestock, a home, and substantial amounts of drilling equipment and motor vehicles. He sold the home, farm and the livestock and with his new wife purchased a new home on a 9 1/2 acre lot;
The majority are “skeptical of some of appellant’s actions, as the trial court appeared to be, and believe that many of his problems are of his own making.” Rule 52 (a), Arkansas Rules of Civil Procedure, and all of our case law dictate that we should defer to the superior position of the chancellor in assessing the weight to be given the testimony. He not only observed the witness on this occasion but he had the benefit of the complete file and several years’ experience in dealing with these parties. We would be justified in concluding that these factors added weight to the chancellor’s conclusion. I am unwilling to second guess him from a record which shows only the course of the latest battle.
Cooper, J., joins in this opinion.