dissenting. The parties to this child-custody case were divorced on September 14, 1999. Pursuant to the divorce decree, the parties were awarded joint custody of their daughter, Krysten, who was born in 1997. The decree further provided that physical custody of Krysten was to alternate between the parties every other week, and that appellee was to pay child support in the amount of $130.00 per week. In September 2003, appellant filed a motion for enforcement of the decree and contempt seeking a child-support arrearage of $3,700.00. This was the third time that appellant was forced to resort to the court to obtain the support appellee had been ordered to pay for the benefit of his child. Appellee answered with a request for a modification of custody. After a hearing, the trial judge entered an order awarding full custody to appellee. This appeal followed.
Appellant argues that the trial court erred in basing his findings of material change of circumstance and best interest on the fact that appellant, a black woman, has dated only white men since the divorce, thereby exposing the child to what appellee, who is also black, characterized as a harmful “biracial situation.” The majority, while conceding that the trial court did base its order on this factor and that this was contrary to the law, does not address the issue, holding that it was not preserved for appeal because appellant did not object below. The majority also opines, in dicta, that the error was of no consequence in any event. I disagree, and I dissent.
The majority errs in holding that the issue was not preserved for appeal. First, because appeals in equity cases are reviewed de novo, there is no requirement of contemporaneous objections to the findings, conclusions, and decree of the court to obtain review on appeal. Jones v. Abraham, 341 Ark. 66, 15 S.W.3d 310 (2000); Morrow v. Morrow, 270 Ark. 31, 603 S.W.2d 431 (1980); Ark. R. Civ. P. 46. Indeed, even had the trial judge announced his erroneous application of the law in open court before the parties had left the courtroom, no objection would be required to preserve this issue for appeal. See Jones v. Abraham, supra; compare Jones v. Abraham, 67 Ark App. 304, 312, 999 S.W.2d 698, 703 (1999). Second, although it is true as a general rule that a party must object at trial in order to preserve an issue for appeal, an exception arises when the error is made by the trial judge himself at a time when defense counsel has no knowledge of the error and hence no opportunity to object. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). That is precisely what occurred in the present case. The evidence regarding appellee’s views regarding racially-mixed couples and households was first elicited not by the appel-lee, but rather by the appellant herself for the purpose of showing that appellee was racially biased and that this bias was harmful to the child.1 That this is a proper purpose there can be no doubt. In the recently-decided case of Tipton v. Aaron, 87 Ark. App. 1, 185 S.W.3d 142 (2004), this very court, on de novo review, cited a parent’s lack of tolerance toward the other parent’s interracial household as a factor warranting reversal of a trial court’s award of custody, so as to place the child in the custody of the parent whose child-rearing philosophy promoted racial tolerance. Appellant simply had no reason to anticipate that the trial judge would turn the law on its head and view the evidence of appellee’s bigotry as a factor favorable to appellee until the trial judge’s final order demonstrated that he had done so.2
There is no question that the trial court erred in considering appellant’s dating persons of another race as a factor in awarding custody to appellee. The impact on the child from remaining in a racially-mixed household is not a proper consideration in determinations of child custody. The United States Supreme Court addressed a similar situation in Palmore v. Sidoti, 466 U.S. 429 (1984). Chief Justice Burger, writing for the Court, said that:
It would ignore reality to suggest that racial and ethnic prejudices do not exist or that all manifestations of those prejudices have been eliminated. There is a risk that a child living with a stepparent of a different race may be subject to a variety of pressures and stresses not present if the child were living with parents of the same racial or ethnic origin.
The question, however, is whether the reality of private biases and the possible injury they might inflict are permissible considerations for removal of an infant child from the custody of its natural mother. We have little difficulty concluding that they are not. The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect. “Public officials sworn to uphold the Constitution may not avoid a constitutional duty by bowing to the hypothetical effects of private racial prejudice that they assume to be both widely and deeply held.”
Id. at 433 (internal citations omitted).
Nor do I agree with the majority’s suggestion that this error was harmless. This was a close case. Although there was evidence that appellant’s behavior has not at all times been exemplary, weighing against that evidence is the established and undeniable fact that appellee has three times required appellant to resort to the court to obtain the child support that appellee had been ordered to pay. There was, in addition, appellee’s racial intolerance, which the trial court not only failed to weigh against him but instead viewed with approbation. Particularly poignant, to me, is appel-lee’s own testimony that, upon encountering the interracial couple of appellant and her boyfriend in a restaurant, his elder daughter was mortified, while Krysten “being a five-year-old kid knows no different.” One cannot help, .upon reading this, but to reflect that the elder daughter has already learned the painful and divisive lesson of racial bigotry that the child whose custody is here at issue has yet to be taught.
Although the trial judge’s findings were generally favorable to appellee and unfavorable to appellant, there is no way to determine, on this record, how much his erroneous view of the law influenced his decision or, indeed, the other findings set out in his order. I do not think that we should presume that the trial court’s error is indicative of bias on its part, but neither do I think that we should summarily deny appellant the opportunity to raise that issue should she desire to do so. In similar situations, where the trial court has erred as a matter of law in awarding custody, we have reversed and remanded to allow such further proceedings as might be necessary to determine the question of custody to be conducted in the trial court. See Walker v. Torres, 83 Ark. App. 135, 118 S.W.3d 148 (2003). I believe that we should do likewise in the case at bar.
I respectfully dissent.
There was no occasion for appellant to object to appellee’s testimony regarding what he characterized as a “biracial situation.” Granted, it was appellee who first testified that he objected to his ex-wife dating white men. However, this testimony was not prompted by questions asked by appellee’s own attorney on direct examination, but was instead directly responsive to a question asked by appellant’s attorney on cross-examination. This question was clearly designed to show that appellee was racially bigoted, and appellee’s testimony to that effect was incontestably “elicited” by appellant. See Turner v. State, 59 Ark. App. 249, 254, 956 S.W.2d 870, 873 (1997).
Oddly, the majority states that the preservation question in this case is “similar to the recently decided Tipton v. Aaron!’ Insofar as the purpose of an objection is to draw the trial judge’s attention to an asserted error, it is difficult to imagine more dissimilar circumstances. In the present case, as discussed supra, there was no reason for appellant to suppose that evidence of appellee’s racial intolerance, elicited by appellant’s attorney for the manifestly proper purpose of showing a lack of fitness on appellee’s part, would be viewed by the trial judge as a factor favorable to appellee. The error did not become apparent until the proceeding had concluded and the trial judge’s error was demonstrated for the first time in his findings of fact. In contrast, the testimony in Tipton v. Aaron, 87 Ark. App. 1, 185 S.W.3d 142 (2004), was elicited by the appellee in that case not for the proper purpose of showing that a prospective custodian’s bigotry was detrimental to the child, but instead solely and directly for the manifesdy improper purpose of demonstrating that a child reared in an interracial family would be harmed by private biases, which is precisely what the United States Supreme Court expressly forbade twenty years ago in Palmore v. Sidoti, 466 U.S. 429 (1984). The error was so plain in Tipton u Aaron, supra, that the trial judge himself raised the question of the propriety of considering this circumstance, yet the appellant in that case still raised no objection. It is an understatement to say that that is not the situation before us in the present case.
Oddest of all, perhaps, is that the majority strains to discern a parallel between this case and Tipton v. Aaron on the issue of preservation, while simultaneously ignoring the striking similarity of the facts with respect to the merits. Confronted with evidence of the father’s racial intolerance in Tipton v. Aaron, we used that evidence to support the reversal of an award of custody to that father — and did so despite the fact that the issue had, in effect, been expressly waived at trial. In the present case, where there was no reason to object at trial, the majority ignores the question of the father’s racial intolerance and states that it is of “no consequence” because “it neither strengthens nor weakens either party’s position on the best interest of the minor child.” The issue in both cases is identical — whether the father’s child-rearing philosophy promotes racial tolerance — and I respectfully submit that it cannot be grounds for changing custody in one case and of no consequence whatsoever in the next.