dissenting. I dissent. The chancellor’s decision is clearly contrary to a preponderance of the evidence, and the affirmance of it promotes an injustice. It is rare that a custody decision is reversed on appeal and rightly so, given our standard of review and the deference afforded chancellors on such a sensitive and fact-intensive issue. However, we should not hesitate or lack the courage to do so in an appropriate case. This is such a case.
The parties to this action were divorced in November of 1990 and custody of their minor child was placed with Christie Jones. Dr. Jones remarried five months after the parties’ divorce. In 1991, Christie Jones obtained a job as a registered nurse with Dr. James Billie in Little Rock. Consequently, she moved to Little Rock and purchased a home in the Hillcrest neighborhood.
This tragedy began to unfold in April of 1992, when Dr. Jones took the parties’ two-year-old son to Dr. Justin A. Ternes, a friend and classmate, for a psychological evaluation. This action was seemingly prompted by Dr. Jones’ concern that Christie Jones’ was exerting some sort of detrimental influence on the child; however, Christie Jones was not made privy to this concern, nor was she advised that the child was being taken to a psychiatrist. Dr. Ternes recommended that Dr. Jones pursue further evaluation and possible treatment for the child. Christie Jones was similarly uninformed that Dr. Ternes had recommended any treatment for her son. Despite Dr. Ternes’ advice, it was not until three months later, in July of 1992, that Dr. Jones began taking the child to the psychologist who had been recommended by Dr. Ternes, Dr. Gayle Harrison. Again, Christie Jones was not informed or even consulted. The child was seen by Dr. Harrison for five months before Christie Jones was finally notified of her son’s alleged condition by means of an ex parte order removing the child from her custody.
The circumstances surrounding the issuance of the ex parte order reflect a clear abuse of the judicial system. According to Dr. Harrison, the child had been doing well over the five-month period of examination and evaluation. In her deposition, Dr. Harrison stated that she had not once observed the kind of behaviors reported by Dr. Jones (slapping, biting and hitting himself). I find it extremely interesting that Dr. Harrison’s opinion changed so abruptly. The record clearly shows that Dr. Jones and his attorney, Helen Grinder, met with Dr. Harrison concerning a change in custody just one week before the doctor suggested, by way of letter to the court, that the child remain with Dr. Jones. Thus, suddenly, one week after Dr. Jones and his attorney visited with Dr. Harrison, Dr. Harrison observed that the child had regressed to the point that the child needed to remain with his father. Apparently, Dr. Harrison found this to be such a traumatic situation that she personally felt the need to contact the chancellor involved in the parties’ divorce. However, the record indicates that it was not such an emergency as Dr. Harrison indicated in her letter. The record shows that Dr. Harrison visited with the child on Thursday. It was not until Friday afternoon, at approximately 4:30 p.m., that a letter was faxed to Judge McNeil from Dr. Harrison. It is also clear from the evidence that Judge McNeil closes his court at 4:30 p.m. Another interesting fact is that Dr. Ternes, who had not examined the child in over five months, also sent a letter to the chancellor proclaiming the need for an emergency change in custody. However, the letter was faxed to Ms. Grinder’s office and not Judge McNeil’s office. With this supposed ammunition in hand, Ms. Grinder located Judge McNeil on Sunday morning. Christie Jones was not served with notice until later that afternoon at 4:45 p.m.
When this evidence is viewed from beginning to end, it is apparent that the actions of Dr. Jones, with the aid of friendly experts and his attorney, were aimed at manipulating the court system by first manufacturing an emergency situation, when none really existed, and by presenting the matter at a time when Christie Jones would be without the opportunity to present her position. The effect of these machinations cannot be minimized or ignored as these acts set the tone for the entire proceedings and wrongfully gave Dr. Jones a tactical advantage by placing Christie Jones in a defensive posture, when it was Dr. Jones’ burden to prove the necessity of a change in custody.
The majority glosses over these facts, but does ultimately hold that the chancellor erred in transferring custody on an ex parte basis. While I agree that the issue should not be considered moot, I find the majority’s reliance on Rule 65 of the Rules of Civil Procedure wholly unsatisfactory, yet I cannot disagree with the result obtained. And, although I believe that appellant’s argument concerning the issuance of an order on a Sunday in violation Ark. Code Ann. § 16-10-114 (1987) merits discussion, I am also not comfortable addressing that question as its resolution would require certification to the supreme court under Rule 1-2(a)(3) of the Rules of the Supreme Court and Court of Appeals. Perhaps this case should have been certified in any event, since the supreme court has decided a previous appeal involving these parties, Jones v. Jones, 320 Ark. 449, 898 S.W.2d 23 (1995). Ark. R. Sup. Ct. 1-2(a)(11).
Turning now to the chancellor’s award of custody to Dr. Jones on a permanent basis, the standard of review is well settled in child custody cases. Before an order awarding custody can be changed there must be proof of material facts which were unknown to the court at the time or that the conditions have so materially changed as to warrant modification and that the best interest of the children requires it. The burden of proving such change is on the party seeking the modification. Watts v. Watts, 17 Ark. App. 253, 707 S.W.2d 777 (1986). The best interest of the child is the polestar for making judicial determinations concerning child custody matters. On appeal from chancery court cases, this court considers the evidence de novo, bút the chancellor’s decision will not be reversed unless it is shown that his decision is clearly against a preponderance of the evidence. Larson v. Larson, 50 Ark. App. 158, 902 S.W.2d 254 (1995).
Although we, as appellate judges, are obligated to follow our standard of review, we should not hide behind that standard when confronted with a case involving a crystalline effort on the part of the non-custodial parent to obtain custody of a child without legal or factual justification. The chancellor’s decision in this matter is so clearly against any preponderance of the evidence that it should not be allowed to withstand appellate review. I would reverse the decision and reinstate custody of the child with Christie Jones.
Although the chancellor heard unrefuted evidence that Christie Jones was not unfit or unable to care for the child, reasons were found to change custody. The final order identified three circumstances: “plaintiff’s move to the higher crime area of Little Rock, the inability of plaintiff to provide for the emotional needs of the child and the stability of the family situation of defendant, as compared to that of the plaintiff.”
First, with regard to Christie Jones’ residence, she moved to Little Rock after obtaining a job there, and she purchased a home in the Hillcrest neighborhood. At the hearing, Dr. Jones presented only a statistical comparison showing that Hillcrest had a higher crime rate than Conway. Without statistical data, common sense would indicate that the crime rate would be higher in an urban area as compared to a small town. That is not to say, however, that the Hillcrest area is particularly dangerous or that the child was in peril by living there. Dr. Jones’ characterization of the neighborhood as a “war zone” is simply without eviden-tiary support. As such, this does not constitute a material change in circumstance. Moreover, such provincialism should not serve as the basis for a change in custody.
I also do not find Dr. Jones’ remarriage a persuasive reason to change custody. Dr. Jones married his present wife five months after the divorce, and he admitted that their relationship antedated the parties’ divorce. In fact, the record discloses that his wife was the labor nurse who attended the delivery of the parties’ child. In short, Dr. Jones’ remarriage does not impress me as being a material change in circumstance. I would not stigmatize the tough job of a single parent by giving preference to a new, unfamiliar family unit.
Lastly, there is no cogent evidence appearing in this record that Christie Jones was unable to provide for the emotional needs of the child. In affirming, the majority states that the record reflects that Christie Jones had a history of mental problems. “History” is the operative word which demonstrates the erroneous nature of this finding in that the problems she experienced occurred in the distant past, some seven years prior to the hearing. The record indicates that her emotional problems were associated with guilt she felt for aborting a child conceived by the parties during the marriage. With regard to this matter, Christie Jones reported to Dr. Gallien, the court appointed psychiatrist, that Dr. Jones had forced her to have the abortion.
Be that as it may, there is no evidence in this record that she currently suffered from any mental difficulties. Although the majority refers to Dr. Zolten’s testimony that she exhibited paranoid behavior, the majority ignores that Dr. Zolten also testified that he could understand why she would be paranoid since her attorneys had cautioned her with regard to the evaluation. I, too, can understand why she and her attorneys would be leery of these proceedings, given the way that the ex parte order was handled.
With respect to the child’s emotional well-being, the majority refers to the opinions of Drs. Harrison and Porter that Cameron had been traumatized by a female authority figure and that his mother’s home presented an unstable environment for him. However, neither of those individuals ever met with or examined Christie Jones. Also, the child’s reaction to being verbally reprimanded does not establish that the child was suffering emotionally while in Christie Jones’ custody. Moreover, the majority’s reliance on the testimony of Dr. Jones is misplaced. His testimony is inherently suspect.
The testimony presented at the final hearing did not prove that Christie Jones was an unfit mother or that her depression years earlier had any effect on her ability to care for her child. There was no showing that Christie Jones had borderline personality disorder or severe depression at the time of her divorce, at the time of this hearing, or over the past seven years. The court appointed psychiatrist, Dr. Gallien, testified that the child should remain with his mother. She said that the child would suffer severe trauma if custody were changed because he would be taken from his mother who had raised him for two years. Dr. Gallien also criticized Dr. Harrison’s ex parte communication with the chancellor. According to Dr. Gallien, this conduct both constituted and resulted in a “travesty of justice.” I agree with that assessment and am troubled that the transparency of this entire matter is being disregarded by the majority.
It is clear that Christie Jones had provided for the emotional needs of her child from the time her’son was born, through the divorce, and continuing to the time of the present hearing, a period of approximately three years. The chancellor awarded Christie Jones extremely liberal visitation, and I think that fact alone shows that the chancellor was not persuaded that Christie Jones was an emotional threat to her son.
Christie Jones also argues, and I agree, that the chancellor shifted the burden of proof in this case. The chancellor sets out in his opinion that he could not find that Christie Jones had borderline personality disorder, as Dr. Jones had claimed. However, he noted in his final order that Christie Jones had proven that she was able to function in the work environment and socially, but he still questioned her ability to provide for her child. The majority finds that the chancellor was merely expressing his concern for the welfare of the child. I disagree. The chancellor was not merely expressing a concern; he was making a decision with regard to the custody of a child. An examination of the record shows that the chancellor shifted the burden of proof after the ex parte order and the temporary order transferring custody, and during the final hearing. It is clear from the record that the onus was placed on Christie Jones to prove her fitness as a parent in light of Dr. Jones allegations. In a footnote, the majority observes that Christie Jones did not testify and thus did not dispute Dr. Jones’ testimony alleging bizarre behavior on her part. This demonstrates that the majority is working under the same mistaken impression as the trial court as to the burden of proof. The burden of proof was on Dr. Jones to show a material change in circumstance. Under this standard, Christie Jones had nothing to prove and was not required to testify. I note that she could just as easily have been called as a witness by Dr. Jones in his effort to meet his burden. I think it telling that he did not do so. The misplacement of the burden of proof, standing alone, requires that the case be reversed.
I cannot condone, and this court should not condone, the irregularities which occurred in this case. The chancellor, and now this court on appeal, have seized upon reasons to justify a change in custody which are, at best, specious, and do not constitute material changes in circumstance. According to a minister who served as the parties’ counsellor, Dr. Jones said in 1992 that he would take the child away from Christie Jones if she did not accommodate his desire for increased visitation with the child. Also according to the minister, Dr. Jones intimated that he would be successful in this effort since he had more money than she did. These are telling statements, and are, I fear, at the heart of this entire matter. No court should allow itself to be manipulated in the manner which was accomplished here, and no court should bend to the whims and desires of one parent. Custody decisions are simply not to be made on this basis. Regrettably, Dr. Jones has succeeded in his effort to gain custody, at the expense of the child. We ought to reverse.