dissenting. The majority, in a move which recalls puritanical, seventeenth-century Boston, has branded the appellee an unfit mother. What was her sin? I cannot tell. Was it that she, while single, engaged in intercourse with three men in the twenty-eight months following her divorce? Was it that about twenty of these acts occurred in her home while the children were asleep in their separate rooms? Was it because she saw nothing morally wrong with having intercourse with persons with whom she was romantically involved, even though she was not married to them? I cannot tell, she will be unable to tell, and I doubt the chancellor can tell why his decision not to change custody is being reversed.,
Today’s opinion declines, I think, to follow the rule we ourselves stated in Calhoun v. Calhoun, 3 Ark. App. 270, 625 S.W.2d 545 (1981):
... In cases involving child custody a heavier burden is cast upon the chancellor to utilize to the fullest extent all of his powers of perception in evaluating the witnesses, their testimony and the child’s best interest. This court has no such opportunity. We know of no case in which the superior position, ability and opportunity of the chancellor to observe the parties carry as great weight as one involving minor children. Wilson v. Wilson, 228 Ark. 789, 310 S.W.2d 500 (1958); Dennis v. Dennis, 239 Ark. 384, 389 S.W.2d 631 (1965).
It is well settled that the burden is upon the appellant to establish from the record that the chancellor’s findings are incorrect, and such findings will not be reversed unless found to be clearly against a preponderance of the evidence. Since the question of preponderance of the evidence turns largely on the credibility of the witnesses, we defer to the superior position of the chancellor in that respect. Andres v. Andres, 1 Ark. App. 75, 613 S.W.2d 404 (1981); Hackworth v. First National Bank of Crossett, 265 Ark. 668, 580 S.W.2d 465 (1979); Rule 52(a), Arkansas Rules of Civil Procedure.
In Sweat v. Sweat, 9 Ark. App. 326, 659 S.W.2d 516 (1983), we stated:
At the conclusion of the trial, the judge admonished the parties that they should not permit their child to be subjected to their use of marijuana in his presence. The chancellor has the right to retain control of this case, and he is in a superior position to ensure that Jason’s welfare and best interests are protected. To this effect, see Phifer v. Phifer, 198 Ark. 567, 129 S. W.2d 939 (1939). Thus, if the parties fail to heed the chancellor’s admonitions, he may choose to take more drastic steps to ensure Jason is provided a proper custodial environment.
As in Sweat, the chancellor prohibited the conduct the majority finds objectionable. I fail to see why we do not affirm the chancellor’s decision in the case at bar as we did in Sweat, thus affirming our faith in the chancellor’s ability to put up enforceable orders which protect the best interests of the children.
I think the majority has really decided to punish the appellee for her prior behavior, rather than to decide this case based on the best interests of the children. In so doing, the majority has engaged in some strong and unwarranted condemnation of the appellee. First, it is a gross misstatement to declare that she was amenable “to having men in the house on a regular, overnight basis.” As to one of the men with whom the appellee had intercourse, they only dated three weeks. During that time, the children were out of state for two weeks, and spent the third week with the appellant. Taking the evidence in the light most favorable to the appellant, there were no more than 15 to 20 such occasions over a 28 month period. This seems to me more “occasional” than “regular.” Secondly, the majority’s statement that such activity “provides the children with an impermanent, unstable situation” flies in the face of common sense, reason, and reality. The majority fails to explain how “contact” with two dates over a 28 month period could cause any problems. Impermanent it may be, as are most dating situations, but to label it as unstable is a large overstatement. Parenthetically, I wonder how realistic it is for anyone to believe that a single parent’s dates would not have some contact with the children of a prior marriage in that person’s custody.
Finally, I take issue with the majority’s characterization of the appellee as “promiscuous.” First, the chancellor did not find the appellee to be promiscuous, she has not, contrary to the majority’s implication, exposed the children to wanton behavior, and last, there is not a scintilla of evidence in this record which indicates that the children have suffered, or will suffer, any harm whatsoever, particularly in light of the chancellor’s order limiting her activities when the children are present, and in light of her assurance that she would obey such an order.
Since the majority opinion is so concerned with morality, despite a statement to the contrary, I feel constrained to point out that the appellant, whom the majority finds to be a better parental influence, testified that he had committed adultery prior to the divorce, and that one reason for the split between the families was that he had had intercourse with the appellee’s sister.
I do not purport to know the implications of today’s majority decision on the lives of single, custodial parents, but I am sure that the chancellors of this State are quite capable of restricting inappropriate behavior by custodial parents, Sweat, supra, and they are also better equipped than are we to decide what kind of behavior is inappropriate in a given case.
I would affirm the chancellor’s decision, and therefore, I dissent.