Yen My Tran Vo v. Hoa Van Vo

John F. Stroud, Jr., Chief Judge,

dissenting. I would ohn because I do not believe that the chancellor’s decision to change custody to the appellee was clearly erroneous when all of the factors considered by the chancellor are viewed together, as contemplated by Hollinger v. Hollinger, 65 Ark. App. 110, 986 S.W.2d 105 (1999).

Custody should not be modified “unless conditions have altered since the decree was rendered or material facts existed at the time of the decree but were unknown to the court, and then only for the welfare of the child.” Id. at 112, 986 S.W.2d at 106. In this case, the parties agreed that appellant would have custody of Henry at the time of their divorce, so no evidence was presented to the court regarding this issue.

With regard to weighing appellant’s petition to relocate to California as a part of his basis for modifying custody, the majority finds that such consideration was improper because the petition had been rendered moot as a result of its denial by the chancellor. While the petition itself may be a moot issue, the chancellor is certainly entitled to assess appellant’s thought processes in bringing such a request to the court.

In the instant case, appellant testified that if she was allowed to move to California, she intended to live with her boyfriend without the benefit of marriage, but after the chancellor stated that he would not permit that, she said that she would find another living arrangement if the court ordered her to do so. Appellant testified that she was not concerned about expenses because her boyfriend would pay those. She stated she would work in a store in California and that she anticipated making more money, but she admitted that she had not yet even talked to the store owner about the prospect of employment. She said that if the job at the store did not work out, she had other friends who would help her.

Appellant was willing to move her young child to California and into a house with a man with whom she was romantically involved but to whom she was not married until the chancellor told her that he would not allow her to do so. Evidence concerning the moral character of a parent is relevant to the best interest of a child and the issue of parental custody. Stone v. Steed, 54 Ark. App. 11, 923 S.W.2d 282 (1996). Appellant had no solid job prospects in California, as she had not even contacted the store owners regarding employment. Appellant’s thought processes, as evidenced by her testimony, indicate that she is irresponsible and does not make major life decisions based upon the best interests of her child. Certainly, when determining whether a change of custody was warranted, the chancellor was entitled to take into consideration appellant’s lack of ability to place Henry in the correct priority in her life.

The majority, citing Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767 (1996), also agrees that a custody modification cannot be based solely on a change in the life of the custodial parent. However, in Hollinger, supra, this court distinguished Jones from the facts in that case:

We are cognizant that in Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767 (1996), the supreme court held that the remarriage of the father, standing alone, was not enough to support a change in circumstances because he was aware of his impending new marriage at the time of the divorce when he gave custody to his ex-wife. Such was not the case here. Appellee was not contemplating this current marriage at the time of the original decree when custody was given to the mother. Those particular facts are not the same as are before us today.

65 Ark. App. at 114, 986 S.W.2d at 107. In the instant case, there was no testimony regarding whether appellee was contemplating remarriage at the time of his divorce from appellant or not, and no presumption can be drawn from this lack of evidence. Therefore, it was proper for the chancellor to consider appellee’s remarriage and stable home environment along with his other bases for modifying custody.

The majority also criticizes the chancellor’s decision to base his decision to modify custody in part on appellant’s removal of Henry from the preschool in which he was enrolled and allowing him to remain with a friend. Appellant did remove Henry from the preschool in February or March of 2000 because of damage to the school due to an ice storm, for which she cannot be blamed; however, she indicated to the home-study caseworker in April 2000 that Henry was still in the daycare at that time. The chancellor was certainly entitled to interpret this deception as an indication that appellant was not being truthful and that she believed that she would appear in a better light if the court thought that Henry was still enrolled in preschool.

The chancellor also based his decision to modify custody in part on the fact that appellant’s brothers, with whom appellant was living until ordered by the court to make other living arrangements, had various criminal convictions, including false imprisonment and DWI. Although the majority states in a footnote that appellant asserted that appellee knew of the false imprisonment conviction and a carrying a weapon conviction, such an assertion does not appear in the abstract of appellant’s testimony. However, in appellee’s testimony, he stated that he was not aware of the false imprisonment offense at the time of his divorce from appellant, nor was he aware that each brother had been arrested for public intoxication. The chancellor apparendy found appellee more credible with regard to this testimony.

The majority cites Bennett v. Hollowell, 31 Ark. App. 209, 792 S.W.2d 338 (1990), for the principle that a custodial stepparent’s isolated DWI conviction was not an adequate ground to warrant a change of custody. However, in that case, this court affirmed the chancellor’s decision, not reversed it. Furthermore, in the present case, it was not an isolated incident; rather, there were multiple convictions for various offenses.

Much is also made of the fact that the chancellor simply ordered appellant to move, which she did, and did not order appellant to keep Henry away from his uncles. In Stone v. Steed, supra, this court affirmed the modification of custody from the mother to the father, holding that “evidence of misdemeanor convictions [of the mother’s new husband and of persons frequenting the mother’s residence] reflected on [the mother’s] morality in allowing persons of questionable reputation and character to be around her child. Such information was relevant in deciding the best interest of the child and who should have custody.” 54 Ark. App. at 14, 923 S.W.2d at 284. Although the chancellor changed custody upon this basis in Stone, there was no indication that he ordered the appellant to keep her child away from these persons, who included her new husband. Likewise, in the present case, the chancellor changed custody based in part upon appellant having Henry live with persons of questionable reputation and character. He ordered her to move into her own residence, which should certainly indicate that it is not in the best interest of Henry to be living with convicted criminals. This action again shows the lack of appellant’s thought process in the context of what is in the best interest of her son.

Lastly, with respect to the chancellor’s credibility determinations, the majority opinion suggests that the use of a translator for appellant’s testimony may have unjustly had a bearing on the chancellor’s assessment of her credibility. However, both appellant and appellee used the same translator, so it would seem that the language barrier played no part in the chancellor’s credibility determinations.

There are no cases in which the superior position, ability and opportunity of the chancellor to observe the parties carries a greater weight than those involving the custody of minor children. Taylor v. Taylor, 345 Ark. 300, 47 S.W.3d 222 (2001). Based upon the discrepancies in appellant’s testimony, the chancellor had the right to determine that appellee was more credible than appellant; furthermore, it is not the province of this court to second-guess such determinations, as the chancellor had the opportunity to observe the parties and hear their testimony.

In sum, I find that the circumstances cited by the chancellor as bases for a change in custody, while not sufficient standing alone, when viewed together as a whole constitutes a material change in circumstances. Furthermore, the decision that a change of custody to appellee is in Henry’s best interest was not clearly erroneous. I would affirm the chancellor’s decision to modify custody to appellee, and I am authorized to state that Judge Jennings joins in this dissent.