dissenting. This case begs for a petition for review to our supreme court. Today, the majority has simply discarded our standard of review in changing custody of this child from her father to her mother. The majority recites the standard of review for a change of custody, but uncharacteristically declines to follow it. As an appellate court, in equity cases we are required to give due deference to the trial court’s superior position to view and judge the credibility of the witnesses, Noland v. Noland, 330 Ark. 660, 956 S.W.2d 173 (1997), and this deference is even greater in cases involving child custody, as a heavier burden is placed on the trial court to utilize to the fullest extent its powers of perception in evaluating the witnesses, their testimony, and the best interests of the children. Anderson v. Anderson, 18 Ark. App. 284, 715 S.W.2d 218 (1986). A judicial award of custody should not be modified unless it is shown that there are changed conditions that demonstrate that a modification of the decree is in the best interest of the child, or when there is a showing of facts affecting the best interest of the child that either were not presented to the trial court or were not known by the trial court at the time the original custody order was entered. Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767 (1996). Generally, courts impose more stringent standards for modifications in custody than are required for initial determinations of custody. Id.
The majority opinion provides only a portion of the trial court’s bench ruling to support its tortured decision. The full text of Judge VanAusdall’s thoughtful ruling from the bench provides:
First of all the Court’s going to comment about the original decision in which [Brooks] admitted that he was engaged himself in an adulterous relationship at the time of the divorce and that that information was withheld from the Court. The Court agrees with [Heather’s] contention that that cast [Brooks] in a bad light with the Court, the Court feeling that not only is he a cheat, but he’s a nefarious and devious cheat, and the Court recognizes that. And, of course, that casts questions on the character. And, of course, character is an important factor in determining who should have the children under their tutelage. And had the Court been made known of that at the time — uh — of the initial award, it well may be that the decision of the Court would have been different. But, the Court doesn’t know that it would have been or not. So, those cases — all these cases, custody cases, involve — uh ■— not only the facts and the things that — uh — that bear on the Court’s mind, and it would be speculation, Jrankly, for the Court to say had that been a fact that had been made known to the Court, the decision would have been different. It well may have been. It would be speculating to say that it would have been. And even if the Court could come to that conclusion today, we’re not dealing with what might have been had it been.
We’re dealing with whether or not that there is sufficient reason to engage and change the —• uh — custody based upon the law of substantial change in circumstances. We all know that custody is not a matter that is used as a punishment tool or a reward tool. It is a — uh — it is a — uh —■ decision that you want to be dad-gum sure that your primary focus — big, big focus — is not to worry about going back and rectifying wrongs, or making rewards, or punishing folks. It’s just simply to be sure that based upon today’s situation the child is — is placed in the best situation that the child could be placed in. So, the Court comes to this conclusion, you hear about the testimony about the need for [Heather] to be the primary caregiver when she’s off work and that that’s a big change in circumstances, whereas the Court’s not sure that is a big change in circumstances. The testimony was at the time of the divorce [Brooks] was utilizing his aunt and his mother to help take care of the child. And since then — uh — instead of utilizing them, he utilizes his present wife. Now, the Court just doesn’t see and find that that is a sufficient reason to call that a change in circumstances. The big thing in the Court’s mind today is the child seems to be doing so well and established a nice relationship with — with everybody, seems to be enjoying where she lives, seems to be enjoying the visitation with [Heather], and the Court just doesn’t see any reason to take a chance with a change in the custody now that we’re setded in. [Brooks] rightfully cites to the Court the law that says you have to have a tougher pro of in order to make a change than you would on the initial — the initial award. For all those reasons the Court denies the petition to change custody and orders that the custody remain in the charge of [Brooks],
(Emphasis added.)
Material Change of Circumstances
a. Unknown Information
One of the bases upon which custody was originally granted to appellee Brooks Harrison was that Heather was having a relationship with another man during the pendency of the parties’ divorce. Because Heather did not provide any of the testimony from the divorce hearing, we are unable to determine the other reasons why Judge VanAusdall, who presided over both the divorce hearing and the change-of-custody hearing, granted initial custody to Brooks. At the change-of-custody hearing, Heather presented testimony that Brooks also was having an extramarital relationship before the parties were divorced and that he did not disclose that fact to the trial court at the time of the divorce. Brooks admitted those facts. Heather argues that this is a reason to change custody to her, i.e., a material change of circumstances, because this was information that was unknown to the trial court at the time of the entry of the original custody order. I disagree.
First, there is no evidence that Brooks perjured himself at the divorce hearing — it simply appears that Heather failed to propound discovery to Brooks regarding extramarital dating or to ask him about it directly at trial. It cannot be argued that Brooks was required to volunteer this information to Heather. Second, a review of Judge VanAusdall’s ruling indicates that all of the evidence presented by Heather at the change-of-custody hearing, including the evidence concerning Brooks’s prior extramarital conduct, was taken into consideration in deciding that there was not a material change in circumstances. Third, custody is not awarded to reward or punish either parent. Eaton v. Dixon, 69 Ark. App. 9, 9 S.W.3d 535 (2000). However, that is exactly what the majority has done in this instance — punished Brooks by taking away custody of his daughter for failing to assist his former wife in her prosecution of the original action between the parties.
b. Other Circumstances
Heather further argues that there has been a material change in circumstances because Brooks married his current wife after she got pregnant; that his second wife had another child out of wedlock; that to a large extent Brooks had turned over parenting responsibilities to his new wife; that Brooks’s second wife is not the ideal person to raise her child; that she (Heather) has the ability and desire to spend the most quality time with the child; that she is denied quality time with her child; that she would set a better moral and scholastic example for the child; and that she would be better able to assist in education.
Judge VanAusdall’s remarks indicate that he did not find any of these arguments sufficient to establish a material change in circumstances. He is absolutely correct. Heather attacks Brooks’s new wife, Melody, because she had a daughter out of wedlock and was pregnant with Brooks’s son before they married; however, Heather admitted that one of the men she dated after she divorced Brooks had a child out of wedlock as well. The trial court recognized earlier immaturity in social judgment in both litigants where the evidence showed that they had both crossed into a moral bog at the time of the divorce. Thus, contrary to the majority’s comments, neither side has shown itself to be exclusively garrisoned on the moral high ground. The trial court recognized that, through the years, Heather’s and Brooks’s social actions actually mirrored each other, but they have both improved with age.
With respect to Melody now “raising” O.H., as the trial court recalled, at the time Brooks was originally awarded custody, he was a fire fighter, and his mother and aunt helped with O.H. when he was on duty. Brooks was still a fire fighter at the change-of-custody hearing, and he testified that when he got remarried, Melody took over in large part from Brooks’s mother and aunt helping with O.H. while Brooks was working his shifts. Therefore, the help Brooks requires with O.H. during his shifts has not changed, just the person helping him. Heather testified that she would have to have someone pick up O.H. daily from school and also to stay with O.H. during the summer while she worked. Therefore, by her own testimony, someone other than Heather would be taking care of O.H. during her work times, which renders Heather’s stance somewhat hypocritical.
The majority erroneously states that Brooks has turned primary care of O.H. over to Melody, and cites Troxell v. Granville, 530 U.S. 57 (2000), for the proposition that the custody, care, and nurture of a child should reside first in the parents. First, Troxell has no application to the present case, as it dealt with paternal grandparent visitation rights after the father of the child had died. Second, the custody, care, and nurture of O.H. did reside at all times in her parent — her father, Brooks Harrison. Brooks stated that Melody now fulfills the role that his mother and aunt did during his work shifts, but the evidence hardly indicates that Brooks has simply abandoned O.H.’s care to Melody. Brooks testified that he picked O.H. up from school when he was not working, that he helped with homework, that he got the children ready for school, that he cooked for them, and that he took them to school. Brooks testified that he went to O.H.’s activities when he was not at work, and that when he was at work, Melody and the children would sometimes bring him dinner and that he would talk to O.H. on the phone on the nights he was at work. For the majority to characterize Brooks as an absent parent is a gross mischaracterization of the evidence. Regarding Heather’s argument that Melody now does “a lot of caring for O.H.,” there are few parents that do everything by themselves. Caring stepmothers are to be applauded, not scorned.
Heather argues that she had been denied “quality” time with her daughter, but I fail to see how it is Brooks’s fault if Heather cannot make her visitation with O.H. “quality time.” There was testimony from Brooks, Melody, and even Heather that Brooks allowed O.H. to spend extra time with Heather, especially when her father was ill. In contrast, it was Heather who refused to work with Brooks during summer visitation to allow Brooks and his family to take a vacation together. Heather’s “moral superiority” is not supported by the evidence.
Best Interests
Notwithstanding that Judge VanAusdall did not find a material change in circumstances to justify changing custody, he nevertheless proceeded to examine the best interests of O.H., finding that she was doing well in Brooks’s home, that she was established in Brooks’s home, and that she enjoyed having a stepsister her age and a new half-brother. Our standard of review for change of custody is more stringent than for initial determinations of custody. This is for the express purpose of preventing disruption in children’s lives and giving them a sense of stability, rather than having their world be in a constant state of flux. There is nothing in O.H.’s life with Brooks that indicates that it is not in her best interest for custody to remain with Brooks, who has done nothing but provide a happy, stable life for O.H. This is clearly indicated by Judge VanAusdall’s well-reasoned ruling from the bench, recited in full above.
In the order dismissing Heather’s petition to modify the decree, Judge VanAusdall found that Heather “has failed to meet her burden of pro of in establishing that there has been a material change of circumstances since the entry of the decree of divorce herein on February 24, 2004, and that it would be in the best interest of the child to modify said decree.” Thus, he addressed in detail both prongs: (1) material change of circumstances; and (2) best interest of the child. The majority has erred in reversing this ruling.
As appellate judges, we are permitted to review, under appropriate standards, but not retry, cases that come before us. We do not make findings of fact. We do not determine the credibility of witnesses. Such findings and determinations are rightly made by our trial courts. However, today, in this matter, the majority has usurped that responsibility of the trial courts.
I am authorized to state that Chief Judge Pittman and Judges Gladwin and Vaught join in this dissent.