dissenting. With sincerest respect to my colleagues who decided this appeal, I must express my strongest disagreement to the majority’s decision today that leaves a little seven-year-old girl in the custody of her alcoholic mother who cannot conform her actions to the conduct ordered by a chancery court.
Change-of-custody proceedings involve two basic inquiries: first, whether there has been a material change of circumstances since the most recent custody order; and, if so, secondly, which parent should have custody with the sole consideration being the best interest of the child. Schwarz v. Moody, 55 Ark. App. 6, 928 S.W.2d 800 (1996). The trial court held in its June 1997 order that “there has been an insufficient change of circumstances to grant Plaintiff s Petition for change of custody and therefore same is hereby denied and dismissed.” It is not clear whether the trial court found that appellant failed to meet the threshold test of proving that there had been a material change of circumstances, or whether the trial court found that the threshold test was met, but determined that it was in the best interest of the child that she remain in the custody of appellee. Whichever finding was made, I submit that, for the following reasons, the chancellor and the majority have erred.
As to whether appellant failed to prove that there had been a material change of circumstances since the December 1995 order, which left custody of the child with appellee, there are at least two undisputed changes that have occurred that I submit are both material and significant:
(1) Appellee associated with Johnny Boggs on numerous occasions, including a two-day period while on a drinking binge in March 1997.
(2) Appellee and the child stayed overnight on at least three occasions with her boyfriend at his apartment.
The order of December 11, 1995, was not appealed by either party. Because of appellee’s history of having an abusive relationship with Johnny Boggs, the order expressly provided that appel-lee’s custody was conditional and would terminate if she associated with Mr. Boggs. Appellee admitted at trial that she had been with Mr. Boggs on several occasions since entry of that order. While a custody change should never be imposed to punish or made without considering the best interest of the child, surely the violation of a clearly expressed condition of continued custody constitutes such a material change of circumstances as to at least open the door and permit the court to consider what the best interest of the child currently is in the matter of custody. Otherwise, the December 11, 1995, order’s proviso was absolutely meaningless and its disregard undermines the integrity of the court.
I further submit that the other change in circumstances mentioned above is also significant and material. The December 11, 1995, order expressly enjoined the parties from overnight visits with someone of the opposite sex with whom they are romantically involved when the child was present. Since then, appellee admits that on at least three occasions she and the child have stayed overnight with her boyfriend, Thomas Johnston, at his apartment. This did not occur prior to the December 11, 1995, order because appellee and Mr. Johnston did not start dating until December 1995. Again, this contempt for the orders of the court may not be reason enough to change custody, but it should constitute such a material change in circumstances as to permit the trial court to consider anew with whom, in the best interest of the child, custody should be placed.
The foregoing facts are undisputed. Appellee admitted to these at trial. If the trial court found that there were insufficient changes of circumstances to permit reopening the issue of the best interest of the child, such finding was clearly against the preponderance of the evidence, and we are obliged, therefore, as an appellate court to substitute our judgment for that of the chancellor’s.
The chancellor’s decision could be construed as finding that, while there has been a material change of circumstances since the December 11, 1995 order, it continued to be in the child’s best interest to remain in the appellee’s custody. If so construed, I submit that such decision is also clearly against the preponderance of the evidence. The majority opinion has set forth an exhaustive summary of the evidence presented at trial, and I will not recount it here. There is one item of evidence, however, that is notable because of its omission.
Appellee testified that Brent Keeling, a man to whom she was never married, but who fathered her older daughter, stays with appellee in her trailer a week or two at a time, a few times each year. This man not only has mental problems, but is either physically abusive or has shown potential for physical abuse and is antisocial in the extreme. The parties’ young daughter is exposed to Mr. Keeling during his visits to appellee’s trailer.
The proof at trial clearly showed that the interest of the child would be better served in the custody of her father, especially with the support of his parents who are available to assist in her care. Appellee, an acknowledged alcoholic, admits to a two-day drunken binge in March 1997 during which she blacked out and of which she has very little memory. It is laudable that the trial court and majority wish to be forgiving of the appellee’s conduct and not punish her. While I agree that custody should not be removed from appellee with the object of punishing her, we should not allow our grace to place her child at risk. It was to appellee’s shame that she relapsed in March 1997 and was rendered unable to care for herself, much less her children. By leaving custody with appellee, it will be to our shame if she experiences another lapse and this seven-year-old child suffers harm as the result. We ought to protect the child from such a distinct possibility.
Appellee has shown by her conduct that she has little, if any, regard for the admonition and orders of the court. It is not in the best interest of the child to be in the custody of such a parent if a better alternative is available. I submit that the heavy preponderance of the evidence shows that it is in the best interest of this child to be in the custody of appellant and his parents. The chancellor’s decision, as affirmed by the majority, is clearly erroneous and I would reverse.
Crabtree, J., joins in this dissent.