Larson v. Larson

Judith Rogers, Judge,

concurring. I reluctantly concur in the affirmance of the chancellor’s decision placing custody of these two children with appellee. The law is well-settled on the question before us. As in all custody cases, the primary consideration is the welfare and best interests of the children involved; all other considerations are secondary. Hoing v. Hoing, 28 Ark. App. 340, 775 S.W.2d 81 (1989). In keeping with this standard, custody decisions must be based on the particular facts and circumstances of each case. Thus, hard and fast rules are particularly inappropriate in custody cases. Kerby v. Kerby, 31 Ark. App. 260, 792 S.W.2d 364 (1990). And, custody awards are not made or changed to gratify the desires of either parent, or to reward or punish either of them. Bennett v. Hollowell, 31 Ark. App. 209, 792 S.W.2d 338 (1990).

A fair reading of the chancellor’s memorandum opinion reflects a decided emphasis on the appellant’s lifestyle. In truth, the chancellor’s own condemnation of appellant’s sexual preference is apparent from his written word. In fact, however, the chancellor focused on the relative faults of both parties. It is because of the comparative reasoning employed by the chancellor and its disparaging tone that I have some hesitation in affirming the decision. Such reasoning comes perilously close to basing a decision on punitive grounds instead of properly focusing on the welfare and emotional well-being of the children. Nevertheless, upon my review, I am not convinced that the chancellor allowed any one circumstance to overshadow his ultimate determination that the best interest of the children favored a change of custody. The record reveals that both parties at times exhibited what the chancellor characterized as poor judgment and irresponsible behavior. Yet, it was for the chancellor to decide which parent should maintain custody of the children. We have often recognized that there is no case in which greater deference should be given the chancellor’s position, ability, and opportunity to see and evaluate the evidence than those involving the welfare of minor children. Respalie v. Respalie, 25 Ark. App. 254, 756 S.W.2d 928 (1988). Out of deference to the chancellor, and because the chancellor specifically stated that the true substantive issue involved was the best interest of the children, I am in agreement that the decision is not clearly erroneous.