dissenting. I cannot agree with the majority’s affirmance of this case. I believe the chancellor clearly erred in finding that a material change in circumstances had occurred, and I believe the majority has established a dangerous and erroneous precedent with the reasons they have announced for finding, upon de novo review, that a material change in circumstances exists.
In his letter opinion dated August 12, 1997, the chancellor found that “[s]ince the divorce, Ms. Hollinger has relocated to Conway and Mr. Hollinger has remarried and established a home in Monticello. These constitute a material change in circumstances.” The majority finds that these facts, combined with (1) the substantial passage of time between the original divorce decree and the modification, (2) the decidedly strained relationship existing between the daughters, especially the eldest, and the mother, and (3) the clear preference of the girls to five in their “hometown,” permitted a reopening of a best-interests inquiry.
Initially, I would point out that the relocation of the custodial parent and the remarriage of the noncustodial parent have been held to be faulty premises for finding a material change in circumstances. Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767 (1996). Thus, I agree with the majority that the chancellor misapplied these factors when he ruled that a material change in circumstances had occurred on these bases. However, I disagree with the majority’s conclusion as to the three additional factors on which they have based their finding that a material change in circumstances has occurred.
The mere passage of time occurs in every child-custody case; it has never been nor should it be determinative of a change in circumstances. The majority believes the passage of time between the decree and the modification is “substantial” enough to be a material change. In Harrington v. Harrington, 55 Ark. App. 22, 928 S.W.2d 806 (1996), this court held that a time lapse of fourteen months was not a material change in circumstances and stated, “To reopen the issue of custody solely on the basis that the children are now fourteen months older . . . could permit annual custody battles.” Even though the time lapse in this case is approximately six years, which is certainly more substantial than fourteen months, I do not believe a calendar should be a governing factor in any custody modification decision.
The majority also cites the decidedly strained relationship between the daughters, especially the eldest, and appellant. At the time of the modification petition, the children were fifteen, thirteen, ten, and eight years old. The evidence showed that appellant has been actively involved with the children in scouting, camping, sports, and school activities, while holding a full-time job. She attends church with the girls and has taught them to sew. She also took a temporary part-time job in order to buy her oldest daughter, Teirrah, a car and to pay for a school trip to Washington, D. C. Appellant described the household responsibilities that the girls were expected to do, such as sorting, washing, and folding laundry, emptying the dishwasher, picking up after themselves, and assisting with meal preparation. She testified that the home relationship with Teirrah had been normal for a fifteen-year-old adolescent. Moreover, she said that none of the children had voiced any concerns to her about what was occurring in the home before they went to five with appellee.
According to Judy Michaels, the girls’ pediatrician and a family friend, the girls behaved as though they were generally happy, well-adjusted, well-cared for, and well-treated. She had never seen anything to cause her to think the children were physically or verbally abused by appellant, nor anything to indicate they were in fear of appellant.
Appellee testified that appellant’s next-door neighbor had informed him of physical and verbal abuse in appellant’s home. However, the neighbor never appeared to testify. A DHS investigation revealed no credible evidence of child maltreatment in appellant’s home.
Teirrah testified that appellant used “putdowns” and was frequently “angry.” She admitted talking back to her mother. Teir-rah said that although her mother liked the way she dressed most of the time, other times she would say her clothing was too short or too tight or “slutty.” Christina admitted, “My mother is upset when I don’t do the chores before she comes home.”
In my view, the overall relationship between appellant and all of her daughters was healthy. Appellant has high expectations of her children in being responsible young ladies. The tension which may exist between appellant and Teirrah appears to be nothing more than typical mother-daughter friction that would occur whether Teirrah’s parents were married or divorced. Allowing this to be a basis for modifying custody is a teenage girl’s dream.
The move from Monticello to Conway two and one-half years before appellee filed his modification petition is the basis for the majority’s third point: the clear preference of the girls to live in their “hometown.” It appears to me from the plethora of activities in which the girls have become involved in Conway that they have adjusted well to the move. Teirrah makes As and Bs in school. Christina acknowledged she was a straight-A student both in Monticello and Conway. On the other hand, appellee claimed most of the children’s good friends are in Monticello, but he also admitted his household was “more relaxed” than that of appellant, that appellant “pushes the girls a lot harder than I do,” and that appellant has “raised the girls very exceptionally.”
Of great concern to me are some of the entries in Teirrah’s diary to which she testified. Teirrah wrote on September 6, 1996, “Well, I can’t think of anything else to say except I want to move back to Monticello. But what else is new.” On October 30 she wrote, “Help, help! My life is so depressing. I wish I lived in Monticello. I’d rather be dead than in Conway or anywhere else besides Monticello, help!” On November 29, while staying with appellee and referring to a party at her Aunt Missy’s house, Teir-rah wrote, “in the process of all this there is dope, Bud Light and a type of wine and some other kind of drink being passed around, and for the first time ever to drink, I was doing pretty damn good. Me and Crystal [Teirrah’s stepsister] got wasted tonight.” On October 30, again while visiting appellee, Teirrah 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.” On January 27, 1997, while staying home from school in Conway, she wrote, “When I was at home, I found a bet Crystal and I had made on Christmas Day.” She testified, “That bet was that the first one who gets pregnant has to give the other one $50.00.”
Teirrah acknowledged writing in her diary that she was going to try to move back to Monticello over Christmas break but if that didn’t work she would try again during the summer. On February 9, she wrote, “My summer (if all goes as planned) should start out in the courtroom.”
Christina, age 13 at the time of the hearing, testified that she would rather five with her dad because “he treats us better.” She said things had been “bad” since the move to Conway but she had never told a school counselor, a preacher, a Sunday School teacher, or anyone else about this; she had only told her dad. She admitted, “We’ve never sat down and talked to tell Mom we had a problem .... There were opportunities when we could have had a talk with our mother, but we didn’t do it.” She also conceded, “It bothered me that I left my mom without saying goodbye.”
I am deeply troubled that the majority has found the girls’ clear preference to five in their “hometown” to be a material change in circumstances. We have no record of the preference of the two younger daughters, and although Christina seemed willing to discuss her “problem” with appellee, she has never even sat down with her to attempt to talk about or work through the problem. As to Teirrah, I believe she has seen and seized an opportunity to manipulate her father and escape from her mother’s strict discipline, with what could be devastating consequences given her troublesome diary entries. For the majority to find changed circumstance based on the “clear preference of the girls,” when we know nothing about the preference of the two younger girls, when Christina’s preference is tentative, and when Teirrah’s preference is devious, is a precarious precedent. While I recognize that a child’s preference may be considered by a chancellor, Smith v. Smith, 28 Ark. App. 56, 770 S.W.2d 205 (1989), and although we defer to the chancellor on matters of credibility because he can observe witnesses’ demeanor, I do not believe we should elevate the children’s preference in this case to a basis for changed circumstances when we have neither seen nor heard these witnesses.
Moreover, even though I would not reach the issue of the children’s best interests because I do not believe there has been a material change in circumstances to justify a best-interests inquiry, I am compelled to point out that appellee has remarried twice since his divorce from appellant and now resides with his third wife, her eighteen-year-old son, and her fifteen-year-old daughter in a three-bedroom home with one bathroom. Now his four daughters five there as well. Appellee and his wife share a bedroom, the two older girls (Teirrah and Crystal) share a bedroom, the three younger girls share a bedroom, and the eighteen-year-old boy sleeps on a daybed in the living room. I cannot agree that these living arrangements are in the best interests of the parties’ four daughters.
In addition, when appellee filed his emergency petition for custody, he sought and received an ex parte order granting him immediate temporary custody. He drove to appellant’s home in Conway, removed the children from the home while appellant was at work, and left a copy of the order on the kitchen table, without so much as a telephone call to her or a farewell hug from the children to their mother.
Finally, appellee refused to permit the children to visit appellant the weekend before the final hearing of this matter, even though appellant’s father had planned to fly to Arkansas to visit the family and appellant was supposed to have a three-week extended visit with the children before school resumed in the fall. Appellant testified that the children told her appellee “didn’t want me to have my clutches in them before court.” Appellee is clearly not setting a good example for his children, yet he will be allowed to be the custodial parent with the greater degree of influence upon them.
For these reasons as well as the concerns stated earlier in this opinion, I find that the majority has condoned a custody arrangement which is not in the children’s best interests.
I would reverse.
Rogers, J., agrees.