dissenting. I dissent. First, as to the motel incident, it is a misstatement to characterize Ms. Coody’s testimony as credible. She, after all, is the neighbor who characterized Ms. Bone’s dates as “customers.” As far as I am concerned, she was an unbelievable witness, and any finding of fact based on her testimony is clearly erroneous.
Although several other points are raised, I am primarily concerned with the change in custody. First, I think the majority opinion is wrong to restrict Ms. Bone to visitation rather than three months custody. Implicit in the chancellor’s finding that Ms. Bone should have custody is the finding that she was fit to have custody. If she is fit to have custody for three months, as the chancellor obviously found, how then can the decision to take primary custody from her be justified?
There is no evidence in this record which indicates that the child has been harmed by the appellant’s conduct. Further, there is no evidence that, through the mother’s care, the.child is not well-adjusted and cared for properly in every respect. It appears to me that the trial court erroneously relied on Digby v. Digby, 263 Ark. 813, 567 S.W.2d 290 (1978). Although at first glance Digby seems to control, it is quite different factually. In that case, the mother was engaging in affairs before, during, and after the divorce, making extended out-of-state trips with other men while she was married. Further, she allowed a man (whose name she could not remember) to spend the night with her while her children were present. Further, in Digby, there was evidence that Ms. Digby left one of her sons unsupervised for extended periods of time. Ms. Digby was also not a particularly credible witness. Her testimony about her sexual relationships was markedly different from the testimony of her oldest son. Also, she apparently perjured herself concerning a desired move to Memphis.
The appellant does not deserve to be punished for her lifestyle where it is not demonstrated that her child has, or will suffer because of it. I would reverse the chancellor’s decision to change custody, thus leaving custody in Ms. Bone. However, I would modify the order to provide that Ms. Bone refrain from allowing men to spend the night with her when the child is present.