dissenting. I dissent from the majority’s opinion because it directly contradicts all precedent in holding that the trial court in this case incorrectly stated the law. In ruling from the bench and in the written order, the trial court correcdy stated what must be proven in order to grant a change of custody. The trial court stated from the bench, in relevant part:
We’ve got on the other hand, a man who is now in a stable marriage, able to provide a stable home, a good home, not living with parents, doesn’t have another child, that I’m aware of— with somebody else. Like I said, he’s grown. He’s going to school. He’s trying to better himself. And we have someone who’s on unemployment and continuing to get fired and quit jobs.
Unfortunately, I don’t get to make that determination. That determination was made when this divorce was finalized. The standard I have to show is that there has been a material change of circumstance. The material change of circumstance, Mr. Walker, is not on your part that counts, although I’m commending you for what you have done and how you’ve grown. It’s got to be a change of circumstance on the part of the custodial parent, and I guess what I’m complaining is that there has been no change of circumstance. She hasn’t changed and continues to do the same type of thing.
And on the other hand, while I don’t think where Marcus is living is the best place for Marcus, he’s not suffering from it. She is interested in his education. She goes to the parent/teacher conferences. She takes care of the child. You know, he’s — he’s much better than some of them I see come through here. He seems like a very well-adjusted young man. In talking with him, he has — he loves both of you very much. You know, he has no complaints.
But what I’m saying is there’s to be no change of custody, because there’s not been that change of circumstance sufficient.
The trial court’s ruling correctly articulates the rule, as our supreme court has clearly stated and repeatedly held, that when seeking a change of custody the petitioner has the burden of showing a material change of circumstances has occurred since the initial award of custody. In determining this threshold issue, a change of circumstances of the noncustodial parent is not sufficient to justify modifying custody. Lloyd v. Butts, 343 Ark. 620, 626, 37 S.W.3d 603, 607 (2001); see also Campbell v. Campbell, 336 Ark. 379, 985 S.W.2d 724 (1999); Jones v. Jones, 328 Ark. 97, 940 S.W.2d 881 (1997).
In this case, far from misstating the law as the majority asserts, the trial court’s ruling actually echoed the holding in Lloyd, where the supreme court recognized the applicable rule, stating:
Certainly to [the noncustodial parents’] credit, they have rectified their lives, and the positive changes they made were acknowledged by the trial court’s findings .... However, our court has also adopted the majority rule that a change of circumstances of the noncustodial parent is not sufficient to justify modifying custody. Lloyd v. Butts, 343 Ark at 625-26, 37 S.W.3d at 607 (emphasis in original).
The majority attempts to circumvent this threshold issue by citing Mason v. Mason, 82 Ark. App. 133, 111 S.W.3d 855 (2003) for the proposition that a trial court may change custody based on “radical and positive change” in the noncustodial parent’s circumstances coupled with “evidence of a further decline in [the custodial parent’s] already dismal circumstances.” In Mason, the trial court specifically found that the custodial parent’s circumstances had deteriorated from the already dismal existence that had disturbed the judge at the time that the initial custody determination was made and further found that there were no good prospects for the welfare of the children if they remained with the custodial parent.1 We upheld the trial court’s change of custody in this circumstance, repeating the standard that we know of no cases in which the superior position, ability, and opportunity to observe the parties carry as great a weight as those involving children. Mason, supra, citing Watts v. Watts, 17 Ark. App. 253, 707 S.W.2d 177 (1986).
The holding in Mason has no application to this case. Here, the trial court specifically found that there was no change of circumstances of the custodial parent’s situation, and further found that the child had not suffered while in the custodial parent’s care. Additionally, while the majority’s opinion notes that the noncustodial parent “has made a positive change in his circumstances” by remarrying, signing up to take business classes, and purchasing a home, the opinion fails to cite any authority for the proposition that these acts are sufficient to support a modification of custody. The majority’s reliance on Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d 520 (1999) is even more perplexing since the court in Hamilton specifically stated that “the holding in Jones merely underscores the rule that changes in circumstances of the noncustodial parent, including a claim of improved life because of remarriage, were not alone sufficient to modify an order of custody.” Hamilton, 337 Ark. at 467, 989 S.W.2d at 524, see also Middleton v. Middleton, 83 Ark. App. 7, 113 S.W.3d 625 (August 27, 2003).
Unlike this case, in Hamilton the trial court was faced with a petition to modify joint custody. Joint custody or equally divided custody of minor children is not favored in Arkansas. Thompson v. Thompson, 63 Ark. App. 89, 974 S.W.2d 494 (1998). The mutual ability of the parties to cooperate in reaching shared decisions in matters affecting the child’s welfare is a crucial factor bearing on the propriety of an award of joint custody, and such an award is reversible error where cooperation between the parents is lacking. See Hansen v. Hansen, 11 Ark. App. 104, 666 S.W.2d 726 (1984). When the parties have fallen into such discord that they are unable to cooperate in sharing the physical care of the children, this constitutes a material change in circumstances affecting the children’s best interest. Word v. Remick, 75 Ark. App. 390, 58 S.W.3d 422 (2001); see also Thompson, supra.
The trial court in Hamilton had failed to make a specific finding of a material change in circumstances; however, in response to the mother’s directed-verdict mo'tion, the judge concluded that the mother’s marriage and the birth of a child born to the father in his remarriage satisfied the requirement of a substantial change. The supreme court held that where the trial court “fails to make findings of fact about a change in circumstances, [the appellate court] under its de novo review, may nonetheless conclude that there was sufficient evidence from which the [trial court] could have found a change in circumstances.” Hamilton, 337 Ark. at 466, 989 S.W.2d at 523 (emphasis in original). The supreme court emphasized that the evidence demonstrated that the mother violated the parties’ custody and settlement order, while there was no evidence that the father similarly violated the parties’ agreement. The opinion merely noted that Jones was not intended to prohibit the trial court from ever considering the event of a noncustodial parent’s remarriage as a change in circumstances affecting the best interest of the children, and then applied the fact that the mother had remarried in conjunction with the mother’s violation of court orders to support the trial court’s finding of a material change of circumstances. Hamilton in no way stands for the proposition that changes on the part of the noncustodial parent alone are sufficient to modify custody, rather it reiterates that the rule is just the opposite. The trial court in this case did not fail to make a specific finding as to a change of circumstance; on the contrary, the trial court specifically found no change on the part of the custodial parent.
Nothing in either Hamilton or Mason changes the clear standard that a change of circumstances of the noncustodial parent is not sufficient to justify modifying custody. The trial court in this case did not misstate the law. Further, the record does not indicate that the trial court clearly erred in finding that appellant failed to prove a change of circumstance on the part of the custodial parent and the majority does not so hold.2 We do not reverse a trial court’s finding regarding a change of circumstances unless it is clearly erroneous. Vo v. Vo, 78 Ark. App. 134, 79 S.W.3d 388 (2002). Accordingly, this case should be affirmed, and I must respectfully dissent.
Hart, J., joins.I joined the majority in Mason, because the holding in that case rested on the premise that even a slight decline in the custodial parent’s circumstances could be a material change when the custodian’s initial circumstances were so “dismal.” Thus Mason, did not change the requirement that there must in fact be a material change in the custodial parent’s circumstances before an initial custody award can be relitigated.
It is impossible to discern from the majority’s opinion what action they expect the trial court to take on remand, since in order to reach a different result applying our holding in Mason the trial judge would have to find his own previous findings of fact to be clearly erroneous.