dissenting. I must respectfully disagree with the majority decision in this child custody appeal where the trial court granted a change in custody based on a petition filed by the noncustodial parent only four months after the parties were divorced. No matter how one may couch it, today’s decision will trivialize the effect of child custody determinations when parents divorce, and will produce unnecessary and harmful instability. Because I believe that our longstanding case law in this area should not be disturbed, particularly on these facts, I would reverse and remand.
The parties were married on January 30, 1995, and are parents of two children: a son (Shawn Michael Mason) born on April 2, 1997, and a daughter (Brittany Ann Mason) born on August 29, 2000. The parties separated on or about November 23, 2000. The trial court entered the divorce decree on April 6, 2001, following a hearing on March 19, 2001. When the trial judge entered the divorce decree on April 6, 2001, he expressed a preference for granting custody to the appellee (mother), but found she was in no position to care for the two minor children. Four months later, on August 20, 2001, appellee filed a petition to modify custody based on her remarriage, the fact that she had obtained a G.E.D. certificate, her employment, and her ability to provide a stable environment. At the hearing on her petition to modify custody, appellee testified that she obtained her G.E.D. certificate and was taking an ACT prep course twice a week in hope of attending college. She now lives in a house with three bedrooms and two bathrooms so that Shawn would have his own room while Brittany would share a room with appellee’s daughter by her current husband. Appellant married Ricky Hood on March 22, 2001, and their daughter (Carissa Brianne Hood) was born on December 29, 2001. Ricky Hood testified that he worked as a manufacturing technician and earns on the average of $50,000 a year. According to Hood, appellee will stay home until Carissa enters kindergarten.
Appellee testified that she was concerned about the living conditions her children experienced with appellant. She mentioned that Brittanny appeared to have roach bites on her arms, that appellant’s phone has been disconnected, that appellant’s mother appears to be the primary caretaker of the children in addition to taking care of her ailing father, that appellant and his mother have not prepared Shawn to enter kindergarten, and that appellant’s car had been repossessed. Yet, appellee also testified “Matt is still living in the same home and location as he was at the last hearing we had and even before that when we all lived there for quite a while during my marriage. I have said that there’s nothing that has changed with regard to Matt Mason to my knowledge.”
Unlike my colleagues who make up the majority, I see nothing in this case that warrants departing from the long-settled law regarding modification of child-custody decisions. The primary consideration when modifying custodial orders is the best interest and welfare of the child; all other considerations are secondary. Fitzpatrick v. Fitzpatrick, 29 Ark. App. 38, 776 S.W.2d 836 (1989). However, an order changing custody cannot be made without proof showing a change in circumstances from those existing at the time the original custody order was made. Riley v. Riley, 45 Ark. App. 165, 873 S.W.2d 564 (1994). Custody awards are not made or changed to gratify the desires of either parent, or to award or punish either of them. Hollinger v. Hollinger, 65 Ark. App. 110, 986 S.W.2d 105 (1999). If there is no showing of a material change of facts, there must be a showing of facts affecting the child’s best interest that were not presented to or known by the court at the time the original custody order was entered. Riley v. Riley, supra. This is because the original custody order constitutes a final adjudication that one parent or the other was a proper person to have care and custody of the child and before an order can be made changing the status, there must be proof justifying a change in custody. Fitzgerald v. Fitzgerald, 63 Ark. App. 254, 976 S.W.2d 956 (1998). Appellee, as the moving party, has the burden of proving a material change in circumstances and that the change was in the best interests of the children. Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767 (1996). Furthermore, the supreme court has stated that courts generally impose more stringent standards for modifications than for initial determinations of custody, Jones v. Jones, supra, and that more stringent standards for modification of custody determinations are required “to promote stability and continuity in the life of the child.” Lloyd v. Butts, 343 Ark. 620, 625, 37 S.W.3d 603, 606 (2001). We should be especially cautious about departing from this line of authority where the supreme court has not suggested the need to change the standard for deciding petitions to modify child custody orders and where the record shows the trial court was fully aware of the facts surrounding appellant’s residence when the initial custody decision was made. Contrary to the view advanced by the majority opinion, the facts in this case prove the wisdom of the existing standard, rather than present an excuse for disobeying it.
Furthermore, the facts of this case should give us even greater reason to hesitate before departing from well-established precedent. Appellee apparently complained about appellant’s residence and living conditions to social services; however, her complaint was unfounded, and was lodged despite her admission that she had not been to appellant’s residence since the March 19, 2001, hearing at which the original custody award was made. For all her complaints about appellant’s living situation, it is the same situation the trial court knew about when the original custody determination was made only months before appellee petitioned to have it modified. I refuse to ignore the rather telling fact that appellee remarried and had a child by her new husband within a year of the time she was divorced from appellant. Indeed, it seems she may have been expecting the child born of her current husband when she filed the petition to change custody four months after the divorce.
The supreme court has stated that remarriage and improved financial circumstances on the part of the noncustodial parent do not, standing alone, constitute a material change of circumstances. We should reverse the trial court’s decision in obedience to that principle. By refusing to do so, the majority sends a dangerous signal that a noncustodial parent can upset even a recent custody determination and destabilize the life that children are trying to build with the custodial parent following the trauma of divorce by merely choosing a new mate whose financial condition can be leveraged to foster an image of economic superiority to the custodial parent. Child custody decisions deserve more respect than that from judges, if from no one else.
I respectfully dissent and am authorized to state that Judge Gladwin joins this opinion.