dissenting. I dissent from the majority’s conclusion that the temporary award of custody in this case somehow underwent a metamorphosis that changed it from a temporary order into a permanent decree of custody. The trial judge accurately identified the temporary nature of the pending order, accurately articulated the applicable legal standards, and applied those standards appropriately to the specific facts of this case.
When the trial court temporarily placed custody of the child with the father, he withheld a determination of the best interests of the child which was proper given the temporary nature of the placement. See Smith v. McCracken, 96 Ark. App. 270, 240 S.W.3d 621 (2006) (holding that dismissal of adoption petitions did not resolve the issue of the best interest of the child because the prior custody order the circuit court had entered in case was a temporary order). The trial court in this case explained that it had awarded the father temporary custody in order to give the custodial mother the opportunity to improve her housing and financial situation. This approach was entirely proper for the trial judge to employ and, in fact and practice, is in compliance with our precedents wherein our appellate courts consistently refuse to modify custody merely because one parent has more resources or income. Taylor v. Taylor, 353 Ark. 69, 110 S.W.3d 731 (2003); Blair v. Blair, 95 Ark. App. 242, 235 S.W.3d 916 (2006); Malone v. Malone, 4 Ark. App. 366, 631 S.W.2d 318 (1982).
The majority embraces the fact that a review hearing contemplated by the trial court did not occur and uses that fact to support its conclusion that the temporary order became permanent. This court specifically rejected the premise that the failure of a trial court to hold an anticipated hearing renders the temporary order a permanent one. In Arkansas Department of Human Services v. McManus, 91 Ark. App. 1, 207 S.W.3d 589 (2005), DHS asserted that the ex parte order granting temporary custody was appealable, claiming that it was a mandatory injunction and that, when the trial court failed to have a hearing on appellant’s motion and did not set aside its order of temporary custody, the order became permanent for all practical purposes. DHS maintained that this matter was somewhat similar to the situation in Walker v. Eliridge, 219 Ark. 594, 243 S.W.2d 638 (1951), in that there was no trial on the merits of the case that was pending. We disagreed and held that the ex parte order, as it was entered in the original divorce action, was not a final appealable order.
The majority’s holding that the temporary custody order in this case at some undetermined point became a permanent and appealable decree of custody conflicts with our supreme court’s rulings on the appealability of temporary orders in custody cases. I recognize that historically, cases which focused on the appealability of custody orders concerning children held that a decree awarding or changing custody of children is a final decree from which an appeal may be taken. See Wood v. Wood, 226 Ark. 52, 287 S.W.2d 902 (1956); Walker v. Eldridge, 219 Ark. 35, 240 S.W.2d 43 (1951). However, beginning with the decision in Chancellor v. Chancellor, 282 Ark. 227, 667 S.W.2d 950 (1984), and later in Sandlin v. Sandlin, 290 Ark. 366, 719 S.W.2d 433 (1986), our supreme court modified that rule such that a temporary order of custody is not appealable if further presentation of proof on the issue of custody is contemplated.
Not all jurisdictions follow the rule as set forth by our supreme court. The Connecticut supreme court in Madigan v. Madigan, 620 A.2d 1276 (Conn. 1993), rejected our supreme court’s approach to the appealability of a temporary custody order. The Connecticut court held that temporary custody orders are final judgments that are immediately appealable because an immediate appeal is the only reasonable method of insuring that important rights surrounding the parent-child relationship are adequately protected. The Connecticut court reasoned:
An inquiry into the law of other jurisdictions supports our conclusion that temporary custody orders are immediately appealable. Although a number of jurisdictions have held that such orders are not immediately appealable, emphasizing the broad rule that interlocutory orders must await the end of an action to be appealed; see, e.g., Chancellor v. Chancellor, 282 Ark. 227, 230, 667 S.W.2d 950 (1984); In re Temporary Custody of Five Minors, 105 Nev. 441, 443, 777 P.2d 901 (1989); Craft v. Craft, 579 S.W.2d 506, 508 (Tex.App.1979); others recognize that temporary orders may be appealed pursuant to local rales recognizing interlocutory appeals. See, e.g., Sanchez v. Walker County Department of Family & Children Services, 235 Ga. 817, 818, 221 S.E.2d 589 (1976); In re Marriage of Kitchen, 126 Ill. App.3d 192, 194-95, 81 Ill.Dec. 644, 467 N.E.2d 344 (1984). Likewise, a limited number of jurisdictions recognize temporary custody orders as final for the purpose of immediate appeal. See, e.g., In re Interests of L.W., 241 Neb. 84, 486 N.W.2d 486, 495 (1992); In re Murray, 52 Ohio St.3d 155, 159-61, 556 N.E.2d 1169 (1990). On balance, we find that the rationale for allowing immediate appeals adopted in the latter jurisdictions, in conjunction with the practice in other jurisdictions that allow these appeals by special interlocutory appeals rules, to be more persuasive than the traditional reasons of judicial economy generally offered as a justification to adhere to a rule of nonappealability.
Madigan supra at 1279 n.9.
While the supreme court of Connecticut is free to reject our supreme court’s precedent, we are not. We have no authority to overrule our supreme court on this issue. Even if we did have the authority, the majority’s decision raises due process concerns. Appellee could not have known at what point the temporary order would ripen into a final decree of custody under the majority’s analysis so her right to appeal was lost. In this case the trial court correctly found that the previous custody order was temporary and the question before him was the best interest of the child. After the proof was presented, the trial court set out detailed findings supporting his decision that it was in the best interest of the child to place custody with appellee. We should affirm.