dissenting. In order to affirm a decision that is clearly erroneous, the majority has had to disregard the law, and make up new law that is unsupported by sound reasoning or any precedent. I cannot be a part of such contrivances; therefore, I dissent.
The chancellor in this case found material changes in circumstances in appellant’s move to Conway and appellee’s remarriage. Having, he felt, crossed that threshold barrier required by the law, he determined that it was in the best interest of the children to remove them from appellant’s custody based on the “feelings” expressed by the children toward appellant, “regardless of whether such feelings are justified.” The changes in circumstances identified by the chancellor are insufficient as a matter of law and under the facts contained in this record. Of course, unjustified “feelings” on the part of children are an insufficient basis for a change of custody. Thoroughly realizing their predicament, the majority has had to come up with creative reasoning to support their decision. Recognizing that appellee’s remarriage and appellant’s relocation are not considered material changes in circumstances, the majority, nevertheless, holds that the combined effect of these occurrences, along with the passage of time, the strained relationship between appellant and the children, and the girls’ preference, were sufficiently material to reopen a best interest inquiry. That their logic is strained is evident from the opinion. The precedent they are setting is also unwise.
Discussing each of these things in order, in Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767 (1996), the supreme court held that the remarriage of the noncustodial parent is not a sufficient justification for modifying custody. The court went on to examine the facts of the case and concluded that the father’s remarriage was not to be considered a material change because his marriage was contemplated at the time of the divorce when it was agreed that the mother should have custody. The court did not hold, as the majority seems to think, that remarriage is a material change in circumstances if the marriage was not foreseeable at the time of the divorce. The majority’s attempt to distinguish Jones on this basis does not meet with success. Moreover, if the facts of this case are examined, it is clear that appellee’s remarriage cannot be considered a material change in circumstances affecting the best interest of the children.
This is appellee’s second marriage since the divorce in 1990. His wife has two children who live in the home, an adult male, Shane Vickers, and a sixteen-year-old daughter, Crystal Don-nahoe. The home has three bedrooms and one bath to accommodate eight people. Crystal and the parties’ oldest child, Tia, have a $50 bet on which one will get pregnant first. Crystal and Tia also went to a party while in appellee’s care where Tia reportedly got drunk. Indeed, Crystal has been allowed to date since before she was fifteen, and appellee himself described his household as being more “relaxed.” On these facts, it cannot be said that appellee’s remarriage and the resulting adverse consequences in any way resemble a material change in circumstances that promotes the best interests of these children.
After finishing her college education, appellant moved with her children to Conway where a job opportunity awaited. Appel-lee made no objection to the move, and appellant and the children had lived there for almost three years before this petition was ever filed. The majority politely applauds appellant’s efforts and acknowledges that her relocation is not a material change in circumstances. This they must say because in Jones, id., it was held that, in furtherance of its policy of encouraging economic autonomy, it would not allow our courts to penalize a parent who relocates to seek career advancement. The majority’s words ring hollow, however, because the move to Conway is, nevertheless, applied as a material change in circumstances. Kind words do not hide the unmistakable fact that a penalty has been exacted as a result of the relocation.
The majority also holds that the passage of time is a proper consideration in determining whether there has been a material change in circumstances. Here, a new day has dawned in our custody law. Aside from the fact that the parties in this appeal have not made that argument, no authority has been cited to support this proposition, and that is because there is none. Our law makes no provision for the periodic review of custody decisions. See Harrington v. Harrington, 55 Ark. App. 22, 928 S.W.2d 806 (1996). To the contrary, any modification of a custody award must be based on a showing of material changes in circumstances. The passage of time is not such a change. It is something that is inevitable, a given that will always occur. Fundamentally, it is not the passage of time that is of importance. What is important is that which takes place over the course of time, i.e., the changes in circumstances that have occurred, if any. The majority’s holding that the mere passage of time is a proper factor to consider in custody decisions is a step in the wrong direction, and it flies in the face of our law which applies a stringent standard for custody modifications. Yet, the majority so holds without any explanation as to why it should be considered a factor, much less a material one.
Next, the strained relationship between the children and appellant and their preference to live with appellee are advanced by the majority as two changes that are supportive of the chancellor’s finding. However, the children’s preference is based on their perceptions of their relationship with appellant and thus should be considered as only one circumstance.
A child’s preference is an appropriate factor for a chancellor to take into account, although it is not binding. Marler v. Binkley, 29 Ark. App. 73, 776 S.W.2d 839(1989). It has never been considered as either a controlling factor or a material change in circumstances in the absence of other considerations. McCullough v. McCullough, 222 Ark. 390, 260 S.W.2d 463 (1953). For instance, in Campbell v. Campbell, 63 Ark. App. 136, 975 S.W.2d 869 (1998), the child’s preference was accompanied by evidence that the child would suffer harm if custody were not changed.
In this case, appellant put herself through school while raising four young children. She secured a job with a reputable company in Conway and moved there with her children. Appellant also took a second job at a sandwich shop in order to buy Tia a car and to send Christy on a trip to Washington. Her efforts are to be commended, and appellee admitted in his testimony that appellant had done an exceptional job of rearing their children.
While living in Conway, the children had proven to be excellent students. They participated in a number of school and extracurricular activities. According to Dr. Judy Michaels, a pediatrician, who had the opportunity to observe the children both in and outside of her office, there were no visible signs of distress in the family. To her, the children seemed to be happy, cheerful, and well-adjusted, and appeared to interact well with appellant. She saw nothing to indicate that the children were in fear of appellant. The result of the DHS investigation instigated by “someone” in Drew, not Faulkner County, was that there was “no credible evidence of maltreatment.” Also, in Dr. Martin’s evaluation, he reported that there was no evidence of emotional or physical trauma. He found that the children were bright, well-socialized, and in possession of high moral values. He did not recommend removal of the children from appellant’s custody; instead he concluded that the children’s interests would be served in either home. He did suggest that appellant set aside time for the children, as well as time for herself. Appellant has since taken a parenting class and has arranged to reduce her hours at work.
In contrast, there is only the testimony of Tia and Christy as to the abuses heaped upon them by appellant. Judging from Tia’s own diary and her testimony, her discontent appears to be of fairly recent origin. In September of 1996, she wrote, “Well, I can’t think of anything else to say except I want to move back to Monticello, but what else is new. I’m going to try to move back over Christmas break, but if that doesn’t work, I’ll try again during the summer.” In other entries for that month, she said, “All I have to do is take a deep breath and count to 10. God, I can’t stand her being my mother,” and “Well, school sucks, but what else is new other than I’m going to try to move in with my dad in Monticello. I called him over the weekend and told him I wanted to talk to my mother about it, and she said she wouldn’t let me go without a court fight, so my dad said that he would work on setting up a date for me to go talk to the judge. I can’t wait.” Apparently, her anger is not always directed at appellant. While staying with appellee, she wrote, “ . . . and to top off this shitty ass mood I’m in, we don’t get to go to Aunt Missy’s. I was going over there and forget my problems for the night and now I can’t even do that. If you don’t know what I’m talking about then that’s where I was last night and I came home feeling pretty damn good. I really need something to drink.”
Significandy, on February 19, appellant took Tia’s car away from her as a disciplinary measure. On February 23, Tia wrote, “Daddy came today and took us to Ryan’s to eat lunch. While we were there he told me that he had a court date or a date with the judge or whatever you want to call it, but don’t tell anyone. Sh! Then we went to ride go-carts.” It is noteworthy that appel-lee’s petition, filed on February 27, fell quickly on the heels of Tia’s car being taken away.
In its discussion of a child’s preference, the court in McCullough v. McCullough, supra, trusted that a “chancellor will look behind mere words, appraise conditions, circumstances and contributing factors, and will alter an order of custody only when a change will be for the minor’s best interests.” There, the child had expressed the desire to five with his father where he enjoyed more freedom and other opportunities; however, the court rejected the father’s contention on appeal that the child’s preference should be considered controlling. In so holding, the court wisely stated that “[a] disclosure of temporary emotional instability under tests to which this boy was subjected is not to be wondered at, nor does it mean that in later years he will not regret an utterance induced by conflicting desires.”
The chancellor here found that the “feelings” of the children were a sufficient reason to remove them from appellant’s custody. The majority seizes on this finding to hold that their preference amounts to a material change in circumstances. However, feelings that are not found to be justified, or a preference, standing alone, do not constitute a material change in circumstances, or even a sufficient basis for best interests determination. It should go without saying that custody decisions are not based solely on the whims and fancies of children. That decision is committed to the chancellor, who abdicates his or her responsibility by simply catering to the wishes of a child.
The chancellor here did not find that the children were suffering abuse at the hands of appellant. He did not find, as does the majority and the author of the concurring opinion, that appellant hit the children or called them names. In carefully chosen words, he found only that the children felt that they were being mistreated. Thus, the chancellor allowed the feelings of the children to dictate his decision. It is said that custody awards are not made or changed to gratify the desires of either parent. Stone v. Steed, 54 Ark. App. 11, 923 S.W.2d 282 (1996). I submit that custody awards are not to be made or changed to gratify the desires of young children, particularly when their preference is unaccompanied by other considerations, like those found in Campbell v. Campbell, supra. Yet, on this most tenuous of grounds, the custody of all four children has been changed in this case.
If there were any objective indications in this record that appellant was abusive toward the children or that their welfare was being jeopardized in the custody of appellant, my view would be different. However, there are no such signs in this record. The record shows only the expression of difficulties that are typically experienced between mothers and daughters. It is common for a child of this age to feel mistreated and misunderstood. This is so eloquently demonstrated by Judge Meads in her dissenting opinion that I need not elaborate any further.
In summary, neither appellee’s remarriage, appellant’s move, nor the passage of time represent material changes in circumstances. Neither does the children’s preference. The aggregation of these things does not alter that result. Put simply, nothing added upon a series of nothings, still equals nothing. The chancellor’s findings that material changes in circumstances had occurred and that a change of custody was in the children’s best interest are clearly erroneous as a matter of fact and law. The decision should be reversed.