dissenting. The genius of the American system of government is that it is structured to prevent any one individual from exercising unbridled discretion. That is the purpose of judicial review. The Arkansas Constitution guarantees every citizen the right to have a decision made by one trial judge reviewed by a panel of judges; in this case, six judges ultimately participated. Moreover, it is not sufficient that three or more judges agree or disagree with the trial court. As a further safeguard, the system of review requires that the vote of the reviewing judges be justified by written opinion, setting out the legal basis for the decision. Integral to setting out the legal basis of a decision is the doctrine of stare decisis, a convention that requires courts to abide by settled decisions. These written decisions show the litigants, the bar, and the public at large that an important decision like a child-custody determination is not the product of improper influences — for example, friendship with the trial judge, bitterness left over from a judge’s own contentious divorce, the desire to court political favor, a lack of effort to properly review the record, failure to find and apply the relevant law, or simply limited legal acumen or experience. It is not a perfect process, but one that consistently yields predictable results — what we may humbly call justice. I am deeply troubled that the process has failed today.
The dearth of facts recounted in the majority’s ten-page opinion is misleading in the extreme. The three-day hearing produced more than 550 pages of testimony. The court’s order, at the direction of the trial judge, included twenty-eight pages of “findings” made from the bench. To affirm this case because the majority agrees with a single sentence from the trial court’s “findings” that acknowledges that the parties “cannot get along” is astoundingly disingenuous. The very reason we have lawsuits at all is because the parties cannot get along!
I submit that today’s majority can “see no useful purpose in describing the many ways large and small in which Sharp and Keeler have refused to cooperate with one another and have made each other’s life unnecessarily difficult,” not because these facts are not legally significant — clearly they are — but because these facts make their decision today undefendable. It is undefendable because today’s majority, which constituted four-fifths of the court that affirmed the trial court’s change of custody from Sharp to Keeler in Sharp v. Keeler, 99 Ark. App. 42, 256 S.W.3d 528 (2007) — Keeler I, and by their own reckoning, they discussed Ms. Sharp’s transgressions “in detail in this court’s thorough en banc opinion in Sharp I” Apparently they see no problem in recounting facts “in detail” when the facts support their position, and see no need to be “thorough” when the facts are hard to explain away.
The law seems to be a problem for the majority as well. In Keeler I, the majority held that an attempt to “alienate Keeler from his son” was both a material change of circumstances and proof of best interest of child to change custody. 99 Ark. App. at 55, 256 S.W.3d at 537. In Keeler I, the offending conduct was Sharp’s “refusal to keep Keeler apprised of medical information, especially in light of [C.K.’s] serious medical condition, her refusal to have [C.K.] ready for visitation, the fact that she refused Keeler visitation when she decided that she did not allow Keeler the first right to babysit [C.K.] when she could not be with [C.K.].” Id.
In the instant case, Keeler not only failed to keep Sharp “apprised” of C.K.’s medical information, but actually had Sharp removed from the hospital by security officers when Sharp showed up at her child’s appointment. It is not disputed that C.K. screamed for his mother as Keeler directed that security guards remove Sharp from out of the hospital. I submit that this undisputed evidence of how Keeler’s conduct obviously affected C.K. is more significant than a nasty text message sent from one parent to another! Finally, Keeler also brazenly, and without any valid reason, cut off Sharp’s visitation when she had the foresight to videotape her visit, apparently to head off abuse allegations by Keeler’s family.
Remarkably, today’s majority justify ducking these facts by insouciantly declaring that “precedent requires that we defer to the circuit court’s findings in this ‘he said and did’ — ‘she said and did’ controversy about custody.”1 This not-so-deft sidestep ignores the fact that there is absolutely no dispute that Keeler engaged in that reprehensible conduct, and the trial court’s finding that the majority purports to defer to was that Keeler was “doing all the things that Ms. Sharp was doing the last time we were here.” The testimony of both sides supports this finding!
Today’s majority cites no authority for the proposition that we are “duty bound to defer to the trial court’s better vantage point,” save their own wrongly decided opinion in Sharp I, which they apparently think stands for the proposition that anything a trial judge decides in a custody case is copacetic with the majority. They are wrong.
It is axiomatic that in child-custody cases, we only defer to the trial judge’s superior position to determine the credibility of witnesses. See, e.g., Bridges v. Bridges, 93 Ark. App. 358, 219 S.W.3d 699 (2005); Hurtt v. Hurtt, 93 Ark. App. 37, 216 S.W.3d 604 (2005). Unfortunately, my research indicates that it is not the first time that an opinion from this court has attempted to alter the standard of review by misstatement. I have traced this error to an opinion authored by this scribe. In Brandt v. Willhite, 98 Ark. App. 350, 255 S.W.3d 491 (2007), he attributed the standard-of-review to Hollinger v. Hollinger, 65 Ark. App. 110, 986 S.W.2d 105 (1999). I note, however, that the standard of review in Hollinger was stated as follows:
Chancery cases are tried de novo on appeal. Riley v. Riley, 45 Ark. App. 165, 873 S.W.2d 564 (1994). We will not disturb a chancellor’s findings unless they are clearly against the preponderance of the evidence. Stone v. Steed, 54 Ark. App. 11, 923 S.W.2d 282 (1996). Since the question of preponderance of the evidence turns largely on the credibility of the witnesses, we defer to the superior position of the chancellor. Watts v. Watts, 17 Ark. App. 253, 707 S.W.2d 777 (1986). We know of no cases in which the superior position, ability, and opportunity of the chancellor to observe the parties carries as great a weight as those cases involving children. Id. A finding is clearly erroneous or clearly against the preponderance of the evidence 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. Nichols v. Wray, 325 Ark. 326, 925 S.W.2d 785 (1996).
65 Ark. App. 110, 112, 986 S.W.2d 105, 106, but in Brandt v. Whillhite, that language was reduced to:
In reviewing the circuit court’s decisions, we defer to that court’s superior position for measuring the witnesses’ credibility and evaluating what was in the child’s best interest.
98 Ark. App. 350, 353, 255 S.W.3d 491, 493. This quote is a misstatement of the law. We defer to the trial court’s credibility determinations, but the findings regarding best interest of the child are reviewed de novo.2 The outcome of this case should not be a surprise given the majority’s demonstrated lack of understanding of well-settled law.
But the issue here is not only the quality of the opinion but the result. I lament that today’s majority thinks that it is acceptable to treat two parties differently when the parties engaged in the same conduct. The Constitution guarantees all litigants equal treatment under the law. I am appalled that today’s majority actually states that they are free to deny Ms. Sharp equal treatment under the law in this court and excuse their action by asserting a procedural rule.
Finally, I note that today’s majority, the same judges less one who were the majority in Keeler I, have at least implicitly repudiated their remarkable decision of just fifteen months ago in Keeler I, notwithstanding their failure to acknowledge that is what they are doing. Given the majority’s failure to properly apply the standard of review, insubstantial legal or factual justification for their decision, and employment of what seems to be a “double standard” in treating similarly situated litigants of different genders, I decline to speculate as to why today’s majority decided to affirm this case; I suspect that the litigants, the bar, and the public at large will not be so indulgent.
The writing judge cites Word v. Remick, 75 Ark. App. 390, 58 S.W.3d 422 (2001), as support for this proposition. However, Word is completely inapposite. In Word, there was a “sharp dispute” in the evidence, while in the instant case, Keeler freely admitted that he engaged in his reprehensible conduct.
Interestingly, the three-judge panel in Brandt v. Willhite, did apparently conduct a proper review of the case, reversing the trial judge’s finding on best interest of the child because the “evidence” contradicted the circuit court’s “conclusion.”