dissenting. I dissent from the prevailing opinion of this Court because I do not believe the case should be reversed and remanded. Although we review chancery cases de novo, we do not reverse the chancellor’s decision unless it is clearly against the preponderance of the evidence. Kerby v. Kerby, 31 Ark. App. 260, 792 S.W.2d 364 (1990). Here, the chancellor found that it was not in the best interest of the child to be moved to Texas, and the prevailing opinion does not find that this conclusion is clearly erroneous or against the. preponderance of the evidence.
The majority’s opinion adopts the criteria set out in D’Onofrio v. D’Onofrio, 144 N.J. Super. 200, 365 A.2d 27, aff’d 144 N.J. Super. 352, 365 A. 2d 716 (App. Div. 1976), as guidelines to be used in custodial parent relocation cases. However, I believe that this is not necessary since our standard of review is ultimately the best interest of the child. Minors are wards of the chancery court, and it is the duty of these courts to make all orders which will properly safeguard their rights. Clark v. Reiss, 38 Ark. App. 150, 831 S.W.2d 622 (1992). The prime concern and controlling factor is the best interest of the child, and the court in its sound discretion will look into the peculiar circumstances of each case and act as the welfare of the child appears to require. Id. I believe that this is what the chancellor did below.
Although our Supreme Court has allowed custodial parents to remove their children to other states, the decisions in the earlier cases were based upon improvement of financial, living, or other conditions or the ability of the noncustodial parent to exercise visitation. See Ising v. Ward, 231 Ark. 767, 332 S.W.2d 495 (1960); Antonacci v. Antonacci, 222 Ark. 881, 263 S.W.2d 484 (1954). In Gooch v. Seamans, 6 Ark. App. 219, 639 S.W.2d 541 (1982), we said “[e]xcept for the visitation difficulties which are created by the move to Oklahoma, we find nothing in the record which supports the trial court’s denial of appellant’s removing the. children from the state.” However, this is not the situation in the case at bar. The chancellor based his decision on the child’s young age, the distance to Wellington, Texas which would make it impractical for the father to exercise his visitation rights, the child’s close relationship to her grandparents, the loss of contact with her extended family and lack thereof in Texas, the father’s diligent exercise of his visitation rights, and the fact that the nursing school was not scheduled to start until August of 1993, ten months after the hearing. Also, it should be noted that the appellant had yet to take an entrance examination scheduled for February 1993, and while she had secured employment in Texas, the record reveals that her hourly wage would be the same as that which she earned at a job in Arkansas which she voluntarily left in October 1992. Therefore, the appellant would not even meet the threshold burden in D’Onofrio requiring the custodial parent to demonstrate some real advantage resulting from the move. I find nothing in this case to warrant remand, thereby allowing the appellant another bite at the apple. Furthermore, the issue may now be moot since the nursing school was to begin in August 1993.
I would review the case de novo on the record, and even applying the standards suggested in D’Onofrio, I would affirm.