Darrell Dunaway v. Kristie Dunaway (Plummer)

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN MAUZY PITTMAN, JUDGE

DIVISION II

DARRELL DUNAWAY

APPELLANT

V.

KRISTIE DUNAWAY

(PLUMMER)

APPELLEE

CA01-501

March 6, 2002

APPEAL FROM THE PULASKI COUNTY CHANCERY COURT, FIRST DIVISION

[NO. DV 94-4104]

HON. ALICE S. GRAY,

CHANCELLOR

AFFIRMED

The parties to this child custody case were divorced in Pulaski County in August 1994. The agreed order provided for joint custody of the parties' child, Holden, who was born in March 1993. The parties were initially cooperative. Appellee has been the primary custodian, with appellant exercising standard visitation during the school year and extended visitation during the summer months. Appellant remarried in 1996, and appellee remarried in 1998. In June 2000, appellee informed appellant that she intended to move with the child to Arizona. Appellant objected to this and filed motions to prevent the removal of the child from the jurisdiction and for change of custody. Trial was held on December 5 and 6, 2000. Although appellee informed the court before the hearing began that she withdrew her request to relocate to Arizona with the child, appellant nevertheless proceeded on his motion to

change custody. After the hearing, the trial court denied his motion, and this appeal followed.

On appeal, appellant contends that the trial court erred in denying his motion to change custody of Holden. We find no error, and we affirm.

The best interest of the child is the polestar in every child-custody case; all other considerations are secondary. Taylor v. Taylor, 345 Ark. 300, 47 S.W.3d 222 (2001). A judicial award of custody will not be modified unless it is shown that there are changed conditions that demonstrate that a modification of the decree is in the best interest of the child. Lloyd v. Butts, 343 Ark. 620, 37 S.W.3d 603 (2001). When an appeal is taken from an order involving the custody of a child, we afford great deference to the chancellor's determination. Because a chancellor called upon to determine the proper custodian for a child must employ her powers of perception and discernment to their fullest extent, there are no cases in which the superior position, ability, and opportunity of the chancellor to observe the parties carries a greater weight than one involving the custody of minor children. See Taylor v. Taylor, supra. The chancellor's findings will not be reversed unless they are clearly erroneous. See Campbell v. Campbell, 336 Ark. 379, 985 S.W.2d 724 (1999).

We agree with appellant's argument that the remarriage of both the custodial and non-custodial parent since the initial custodial order constitutes a material change in circumstances. See Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d 520 (1999). However, on our review of the record in this case, we cannot say that the chancellor clearly erred in denying appellant's motion to change custody. In essence, appellant offered evidence toshow that he was an involved parent; that appellee and her current husband had cohabited for a short time prior to their marriage in 1998; that appellee's current husband had driven the child home after drinking in a restaurant; that appellee and her current husband were involved in a family altercation in March 2000 that left appellee bruised and necessitated that the police be called; and that the latter event caused Holden emotional distress.

We will not minimize and do not condone cohabitation in the presence of the child, driving with child passengers after drinking, or domestic violence. Each of these acts endangers the child; none are acceptable behavior for a person in loco parentis to a child. Had there been no indication in the record that appellee and her current husband repented of these acts and took steps to correct them, a different result would obtain. However, there was evidence that they did take such steps. After approximately four months of cohabitation, appellee and her current husband married in 1998. Appellee's current husband testified that he no longer drinks more than one beer at a sitting, and no longer drinks at all when the child is present. Finally, he accepted responsibility for the domestic altercation, admitted that it was his fault, apologized to his wife and the child, and promised they would never see him behave in such a manner again.

Arkansas courts have never condoned conduct detrimental to the welfare of a child. However, we have always recognized that there is a distinction between human weakness leading to isolated acts of indiscretion, which do not necessarily adversely affect the best interest of the child, and that moral breakdown leading to depravity which renders one unfit to have custody of a minor. Watts v. Watts, 17 Ark. App. 253, 707 S.W.2d 777 (1986). Thechancellor was in a superior position to assess the situation and the effect of the conduct on the child's welfare, Respalie v. Respalie, 25 Ark. App. 254, 756 S.W.2d 928 (1988), so as to determine whether the benefits of a change of custody outweighed the harm that might be caused by removal of the child from his familiar surroundings and his step-siblings. On this record, we cannot say that the chancellor's confidence that these unfortunate acts would not be repeated was misplaced, or that her refusal to change custody was clearly erroneous. See Bennett v. Hollowell, 31 Ark. App. 209, 792 S.W.2d 338 (1990).

Affirmed.

Stroud, C.J., and Vaught, J., agree.