Nina Alphin (Surber) and Paul Alphin were divorced in August 1998, and the Union County Circuit Court awarded joint custody of their daughter, M.A., bom January 27, 1998, to the parties and placed primary physical custody with appellant. On January 7, 2003, appellee filed a petition for modification of the decree, alleging that a “substantial change of circumstances” warranted awarding sole custody to him. The trial court agreed and changed custody ofM.A., placing her with appellee. On appeal, appellant argues that the trial court erred in modifying the decree and awarding custody to appellee. We affirm.
At a hearing held on September 5, 2003, appellant testified that at the time of her divorce from appellee, she was living in Houston, Texas, with her boyfriend, Rob Stephens. When they broke up, she returned to El Dorado, Arkansas, and moved back in with appellee. They lived together from November 1999 to March 2001, during which time they attempted to reconcile; however, the arrangement did not lead to reconciliation. Appellant then moved to Illinois after a transfer by her employer, Wal-Mart Stores, Inc., and planned to live with her sister until she could find a place of her own. Appellant eventually found her own place in March 2002. Her then-boyfriend and current husband, Todd Surber, moved in with appellant and M.A. in July 2002. According to her testimony, appellant believed it was okay to live with Mr. Surber out of wedlock in the presence of M.A. Appellant also testified that she and Mr. Surber had planned to be married at the end of the month but that they had moved the date up and married two days before the hearing because they knew the court would frown upon their not being married. Appellant stated that she thought it was appropriate for Mr. Surber to be referred to as “Daddy” because he had taken care of M.A. for the previous three years.
As for her and her new husband’s work schedules, appellant stated that Mr. Surber is a police officer who works in rotating shifts, while she is a waitress at a bar and grill. Appellant testified that her hours from week to week are never the same but that she works three nights per week. She stated that, while she is working, if Mr. Surber is not available, M.A. stays with her grandmother or is left with babysitters. Appellant further testified that she has two children with her first husband and that he has custody of them. Appellant testified that it had been two years since she had visited with her children because her ex-husband would not let her see them and she could not afford to take legal action to enforce visitation. She testified that appellee is a good father but that she is a good mother and did not want to lose M.A. She stated that appellee was not supporting M.A. financially and was not paying for half of her medical bills. Appellant stated that, after she filed a petition for child support the previous fall, she had received assistance from appellee but that he then filed for custody of M.A.
Sean Zoerner, appellant’s ex-husband, testified that it had been two years and eight months since appellant had spoken to her children. Mr. Zoerner stated that appellant had sent only a few letters that year and that she had not sent money to the children at Christmas or on their birthdays since 1998. Finally, Mr. Zoerner testified that their son did not want to see appellant but that their daughter did.
Michelle Alphin, appellee’s current wife, testified that she has custody of her two children from a previous marriage. She testified that her work schedule allowed her to pick up the children from school every day. She stated that she and appellee did not live together before they were married but that she was three months’ pregnant when they got married. According to Mrs. Alphin, appellant’s filing a petition for child support was a factor in appellee’s decision to seek custody of M.A.
Appellee testified that, although he never voiced any objection to appellant’s living arrangements, he did have a problem with it. Appellee stated that he sought custody because he had difficulty seeing M.A. and because appellant moved around so often, but he denied that he took the current action because of appellant’s petition for child support. He admitted that he had not paid any of M.A.’s medical bills even though he was supposed to pay half of what the insurance did not pay. Appellee testified that he did not believe appellant was setting a good example living out of wedlock but conceded that he and appellant had lived together before they were married and after they divorced. Appellee stated that he got off work at 3:30 p.m. each day and that either he or Mrs. Alphin was home by the time M.A. got out of school.
Todd Surber testified that the timing of his recent marriage to appellant was affected by the current hearing regarding custody. He stated that their not being married to each other would probably not look good. Mr. Surber testified that he did not believe it was morally wrong for them to live together out of wedlock and that he did not think that it set a bad example for M.A. He further testified that he did not care what other people thought but that he and appellant knew the fact that they had married would please the judge.
In his order filed September 25, 2003, the trial court noted that appellant had readily admitted cohabiting with the opposite sex and saw nothing wrong with it. The court found that appellant’s recent marriage to Mr. Surber was a “ruse” in that both appellant and Mr. Surber testified that they got married because they thought it would look good. The court pointed out that all Arkansas courts have held that cohabitation without the benefit of marriage is an illicit sexual relationship. The court further found that appellant’s conduct in that regard was a sufficient change of circumstances that demonstrated that a modification of custody would be in M.A.’s best interest. The trial court concluded that, “in viewing the lifestyles of the parties, their stability and, equally important, their availability,” M.A.’s best interest would be served by placing her with appellee, subject to reasonable and seasonable visitation by appellant.
Although the trial court retains continuing power over the matter of child custody after the initial award, the original decree is a final adjudication of the proper person to have care and custody of the child. Watts v. Watts, 17 Ark. App. 253, 707 S.W.2d 111 (1986). Before that order can be changed, there must be proof of material facts which were unknown to the court at that time, or proof that the conditions have so materially changed as to warrant modification and that the best interest of the child requires it. Id. The burden of proving such a change is on the party seeking the modification. Id. The primary consideration is the best interest and welfare of the child, and all other considerations are secondary. Id. Custody awards are not made or changed to punish or reward or gratify the desires of either parent. Id.
In child-custody cases, we review the evidence de novo, but we do not reverse the findings of the trial court unless it is shown that they are clearly erroneous. See Deluca v. Stapleton, 79 Ark. App. 138, 84 S.W.3d 892 (2002). A finding is clearly erroneous, when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Id. Because the question of whether the trial court’s findings are clearly erroneous turns largely on the credibility of witnesses, we give special deference to the superior position of the trial judge to evaluate the witnesses, their testimony, and the child’s best interest. Ford v. Ford, 347 Ark. 485, 65 S.W.3d 432 (2002). There are no cases in which the superior position, ability, and opportunity of the trial judge to observe the parties carry as great a weight as those involving minor children. See Vo v. Vo, 78 Ark. App. 134, 79 S.W.3d 388 (2002).
On appeal, appellant points out that appellee never voiced any objection to her living arrangements until he was coached by his attorney at trial. She notes that appellee admitted that she loved M.A., that he had no problems with Mr. Surber, and that he saw no signs of neglect. Appellant argues that there was no evidence that M.A. had been harmed by living in three different states. She further contends that her living arrangement with Mr. Surber had been cured by their lawful marriage. Finally, appellant argues that the trial judge’s decision was not based on any testimony at the hearing, was inconsistent with Arkansas law, and would open the floodgate to thousands of new custody orders.
Extramarital cohabitation in the presence of a child has never been condoned in Arkansas, is contrary to the public policy of promoting a stable environment for children, and may of itself constitute a material change of circumstances warranting a change of custody. Word v. Remick, 75 Ark. App. 390, 58 S.W.3d 422 (2001), citing Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d 520 (1999). Although we may not agree with the trial judge’s characterization of appellant’s marriage as “a ruse,” we nevertheless find no error in the judge’s decision. The case law clearly provides that cohabitation without the benefit of marriage may be regarded as a material change of circumstances. Moreover, it is an important factor when considering what is in the best interest of the child. Here, the trial judge also considered the parties’ lifestyles, stability, and availability. We are simply not left with a definite and firm conviction that a mistake has been made under the facts of this case.
Affirmed.
Robbins, Neal, and Vaught, JJ., agree. Baker, J., dissents. Hart, J., dissents.