dissenting. The significance of this case is that the majority opinion changes the standard of review in equity cases where parents seek to have their surnames assigned to their child. In Clinton v. Morrow, 220 Ark. 377, 247 S.W.2d 1015 (1952), the court held chancellors have broad discretion when assigning surnames, and the court has adhered to that standard as recently as 1992. See Reaves v. Herman, 309 Ark. 370, 830 S.W.2d 860 (1992); see also McCullough v. Henderson, 304 Ark. 689, 804 S.W.2d 368 (1991).1 In today’s surname decision, without mentioning overruling the court’s earlier cases on this point, the majority opinion adopts the clearly erroneous standard of review, and in addition, sets forth six factors a chancellor must consider henceforth. The appellant Kara Huffinan never requested this court to change the standard of review, and as for the six factors adopted by the court, Huffinan never raised or argued those factors below.
This court’s decision to employ a clearly erroneous standard as opposed to an abuse-of-discretion one is enough to change the outcome of this case. Under the abuse-of-discretion principle, this court examines a discretionary decision made by a chancellor by deciding, as a matter of law, whether the judgment call made by the chancellor is arbitrary or groundless. Looper v. Madison Guaranty Savings & Loan Ass’n, 292 Ark. 255, 729 S.W.2d 156 (1987); c.f. Black’s Law Dictionary 5-6 (6th ed. 1990) (“[a]buse of discretion” by trial court is any unreasonable, unconscionable and arbitrary action taken without proper consideration of facts and law pertaining to the matter submitted).
In the present case, the chancellor’s ruling was anything but arbitrary, groundless, unreasonable, or unconscionable. In a six-page letter opinion, the chancellor found, among other things, that assigning appellee John Fisher’s name to the parties’ infant child, Jacob, would be less confusing and embarrassing as Jacob grew older and associated with friends.2 More significant, however, was the chancellor’s recognition that, because Fisher was given visitation rights with Jacob, their intermittent visits would be less awkward, and having the same name would better allow Jacob to connect with his father. Perhaps of lesser significance, the chancellor additionally found that it was not the norm in the locale for the child to have a surname different from his father’s.
Instead of deciding if the chancellor’s foregoing findings are arbitrary or groundless (as required by our prior case law), the majority court has reviewed the trial court’s findings under the clearly erroneous standard. In other words, a finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. RAD-Razorback Ltd. Partnership v. B. G. Coney Co., 289 Ark. 550, 713 S.W.2d 462 (1986) (emphasis added). By definition, this court, I'submit, is reversing the chancellor’s findings in this case even though, based on the evidence, the chancellor rendered a reasonable judgment call when he assigned Jacob his father’s surname. In sum, the majority opinion has denuded the chancellor of the greater deference given him under our abuse-of-discretion standard, and does so contrary to the Clinton, McCullough, and Reaves decisions.3
The majority court’s decision to set out six factors that a chancellor must consider in surname cases may be helpful, but I disagree that, in doing so, it is necessary for this court to change its standard of review in order that these factors can be utilized by chancellors. This court has required various factor applications in other types of cases where the abuse-of-discretion standard is employed. E.g. Burns v. Burns, 312 Ark. 61, 847 S.W.2d 23 (1993) (factors are considered by chancellors when they exercise discretion in awarding alimony); and Chrisco v. Sun Indus., Inc., 304 Ark 227, 800 S.W.2d 717 (1990) (trial courts should be guided by recognized factors in determining attorney’s fees and such fees will not be set aside absent an abuse of discretion).
In conclusion, based on the record and the chancellor’s findings, I cannot say he abused his discretion in deciding Jacob’s best interests would be served by bearing Fisher’s surname. The majority’s decision to change the abuse-of-discretion standard in this case is entirely unnecessary, and in fact is procedurally barred, since no one has asked that the clearly erroneous standard be adopted in surname cases. See Parrish v. Pitts, 244 Ark. 1239, 429 S.W.2d 45 (1968) (precedent governs until it gives a result so patently wrong, so manifestly unjust, that a break becomes unavoidable.); see also Cottrell v. Cottrell, 332 Ark. 352, 965 S.W.2d 129 (1998) (argument not made at trial cannot be raised for first time on appeal). For these reasons, I would affirm.
In McCullough, this court actually reversed the chancellor, but the reason was because the chancellor erroneously found he had no discretion under a paternity statute to name the child other than by its father’s surname. This court disagreed, holding that the best interests of the child required the chancellor to exercise his or her informed judgment in the matter. 304 Ark. at 692, 804 S.W.2d at 369.
The chancellor concluded, too, that confusion would result if Huffman remarried and took the surname of her husband.
As a matter of interest, this court promulgated Ark. R. Civ. P. 52(a) which provides that the findings of fact of a trial court in a contested action shall not be set aside unless clearly erroneous. Before Rule 52(a), a circuit court’s findings had to be affirmed if there was substantial evidence to support them. Chancery court findings largely had already been subject to the clearly erroneous standard on appeal, except in certain designated cases such as alimony and child support awards. Exactly why the distinction exists in different type chancery court cases is unclear.