concurring. While I certainly agree that the writ of prohibition should be denied, I disagree with that part of the per curiam opinion that holds that Jerry Jones is limited in arguing his son’s emotional needs as a reason to change custody. This court did not reach the merits of that issue in Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767 (1996) (Jones I). Rather, we decided the emotional-needs issue based on faulty and improper procedure, that is, the chancellor wrongfuEy shifted the burden of proof in the custody matter to Christine Jones and engaged in ex parte communications with mental health experts for Jerry Jones. We held in Jones I:
In sum, when viewing together the repeated entry of ex parte orders, the erroneous shift of the burden to Christine Jones to prove her emotional stability, and the chanceUor’s faulty reliance on her move to Litüe Rock and Dr. Jones’s remarriage as material changes in circumstances, we must conclude that the chancellor’s decision to change custody to Dr. Jones was clearly erroneous.
Jones, 326 Ark. at 494, 931 S.W.2d at 774. Thus, on de novo review, this court took a clear position on the merits with respect to Christine Jones’s move to Little Rock and Jerry Jones’s remarriage. We did not do so with respect to the issue of the boy’s emotional needs but pointed to the procedural deficiencies.
The per curiam opinion is correct in asserting that repeated litigation of the same issues between former spouses does not promote stabüity and continuity in the life of the minor chEd. This policy is adeptly promoted by this court’s rule that custody should be modified only when there are changed circumstances since the last award of custody or when there is proof affecting the best interests of the chEd that was not previously known by the chanceEor. See Stamps v. Rawlins, 297 Ark. 370, 761 S.W.2d 933 (1988). However, in holding that this court’s reinstatement of custody in Christine Jones forecloses evidence pertinent to the chEd’s emotional needs that occurred prior to Jones I, the majority hamstrings Jerry Jones and prevents him from presenting any history on this matter. He should not be penalized by wrongful procedures employed by the trial court.
On de novo review, this court has been clear that we decide matters on the merits. Fye v. Tubbs, 240 Ark. 634, 401 S.W.2d 752 (1966). In Fye, which was a child custody dispute, Justice George Rose Smith wrote:
At the hearing in the court below both parties developed their testimony fully. More than a dozen witnesses testified. There is no reason to think that a second hearing is needed. It is appropriate for us to try the matter de novo, as is our practice in equity, and reach a decision upon the merits.
Fye, 240 Ark. at 635-36, 401 S.W.2d at 753 (emphasis added).
Because there has been no final decision since the original decree vesting custody in Christine Jones on whether Cameron’s emotional needs mandate a change in custody, Jerry Jones should be allowed to fully develop the issue. The per curiam opinion truncates his ability to do so.