Christine M. Jones v. Jerry A. Jones

Christine M. JONES v. Jerry A. JONES

95-1150                                            ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered November 4, 1996


1.   Appeal & error -- review of chancery cases -- more stringent
     standards imposed for modifications. -- In reviewing chancery
     cases, the appellate court considers the evidence de novo but
     does not reverse a chancellor's findings unless they are
     clearly erroneous or clearly against the preponderance of the
     evidence; generally, courts impose more stringent standards
     for modifications than for initial determinations of custody.

2.   Parent & child -- custody -- best interest of child. -- Child
     custody is determined by what is in the best interests of the
     child, and it is not altered absent a material change in
     circumstances.

3.   Parent & child -- custody -- parent living in statistically
     safer area should not have advantage in custody disputes. --
     It has never been the law in Arkansas that the parent living
     in the statistically safer neighborhood, town, or city should
     have an advantage in custody disputes, and the supreme court
     refused to make such an inequitable principle part of its
     jurisprudence; in determining support awards, the supreme
     court has encouraged divorced spouses to acquire financial
     independence; where appellant, in an effort to support herself
     and her child, had moved to Little Rock after obtaining a job
     there, the supreme court stated that it would be inconsistent
     for it to allow courts to impose a custody penalty as a price
     of compliance with its policy of encouraging economic
     autonomy.  

4.   Parent & child -- custody -- move to another city not material
     change in circumstances. -- The supreme court was not
     persuaded that appellant's move to Little Rock, in and of
     itself, was a material change in circumstances; the court held
     that, to the extent that the chancellor relied on this faulty
     premise in making his decision on the permanent custody issue,
     his ruling was in error.

5.   Parent & child -- custody -- change of circumstances of
     noncustodial parent not sufficient to justify modifying
     consent. -- While the supreme court has previously held that
     the remarriage of one of the parties is a factor that may be
     considered when deciding what is in a child's best interest,
     it has applied this principle to modifications of support
     obligations; regarding matters of child custody, the supreme
     court noted the majority view that a change of circumstances
     of the noncustodial parent, including a claim of an improved
     life because of a recent marriage, is not sufficient to
     justify modifying custody.

6.   Parent & child -- custody -- appellee's remarriage did not
     constitute material change in circumstances. -- The supreme
     court held that appellee could not use the circumstances that
     he had created as grounds to modify custody; given appellee's
     awareness of the circumstances at the time he voluntarily
     entered into the agreement to award custody of the parties'
     minor child to appellant, the supreme court could not agree
     that appellee's remarriage constituted a material change in
     circumstances.

7.   Parent & child -- custody -- when award may be modified. -- A
     judicial award of custody should 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 or when there is a showing of facts affecting the best
     interest of the child that were either not presented to the
     chancellor or were not known by the chancellor at the time the
     original custody order was entered.

8.   Parent & child -- custody -- party seeking modification of
     order has burden of showing material change in circumstances.
     -- The party seeking modification of the child-custody order
     has the burden of showing a material change in circumstances. 

9.   Parent & child -- custody -- agreement of parties tends to
     show attitude at time original divorce suit was filed. --
     While an agreement of the parties regarding custody is not
     binding on the courts, it is of some importance as tending to
     show attitude at the time the original divorce suit was filed.

10.  Parent & child -- custody -- ex parte communication improper -
     - letters from two doctors should not have been considered by
     chancellor. -- Ex parte communication between an expert and a
     judge is improper; the faxed letters from two doctors
     recommending that the minor child not be returned to appellant
     were not under oath and should not have been considered by the
     chancellor. 

11.  Parent & child -- custody -- chancellor cannot delegate
     judicial function to someone outside court. -- Chancery courts
     have subject-matter jurisdiction to decide the custody,
     support, and visitation of a child born of the marriage; the
     supreme court held that, while it is permissible for a
     chancellor to base an award of custody or visitation after
     hearing the opinions of experts, the chancellor cannot
     delegate this judicial function to someone outside the court,
     especially to an expert employed by one of the parties.

12.  Parent & child -- custody -- chancellor erroneously shifted
     burden of proof to appellant. -- The chancellor's finding that
     appellant had not proven that she was able to provide an
     emotional and stable home environment for the minor child
     convinced the supreme court that he had erroneously shifted
     the burden of proof to appellant; the chancellor's repeated
     entry of ex parte orders, his reliance on ex parte
     communications from appellee's expert, and his failure to
     appoint a neutral expert to examine the child, led the supreme
     court to the conclusion that appellee was somehow relieved of
     the legal burden to prove that a material change of
     circumstances and the best interest of the child warranted
     modification of the initial custody order.

13.  Parent & child -- custody -- chancellor's decision to change
     custody was clearly erroneous -- reversed and remanded. -- To
     have upheld the chancellor's shifting of the burden of proof
     in this case would have been to undermine the very purpose of
     the supreme court's elevated standard of proof in modification
     proceedings, which is to promote stability and continuity in
     the life of the child; in sum, when viewing together the
     repeated entry of ex parte orders, the erroneous shift of the
     burden to appellant to prove her emotional stability, and the
     chancellor's faulty reliance on her move to Little Rock and
     appellee's remarriage as material changes in circumstances,
     the supreme court concluded that the chancellor's decision to
     change custody to appellee was clearly erroneous; the matter
     was reversed and remanded with instructions to reinstate the
     original custody order. 


     Appeal from Faulkner Chancery Court, Third Division; Andre
McNeil, Chancellor; reversed and remanded.
     The Perroni Law Firm, P.A., by: Samuel A. Perroni and Mona J.
McNutt, for appellant.
     Grinder Law Firm, by: Helen Rice Grinder, for appellee.

     Bradley D. Jesson, Chief Justice.
     This is a child-custody modification case.  On Sunday morning,
December 13, 1992, after receiving ex parte letters from a
psychologist and psychiatrist employed by appellee Dr. Jerry A.
Jones, the chancellor entered an emergency order providing that Dr.
Jones was not required to return the parties' minor child, Cameron,
to the custodial parent, appellant Christine Jones.  Two additional
ex parte orders and one ex parte communication later, Ms. Jones was
also deprived of weekday visitation.  Following yet a fourth ex
parte order and a hearing on Dr. Jones's petition for permanent
change of custody, the chancellor found that the following changes
in circumstance warranted changing custody to Dr. Jones: (1) Ms.
Jones was unable to provide for Cameron's emotional needs; (2) Ms.
Jones had moved from Conway, where Dr. Jones lived, to the higher
crime area of Little Rock; and (3) Dr. Jones had recently remarried
and thus had a more stable family situation.  Ms. Jones appealed,
and the Court of Appeals affirmed the chancellor's ruling in Jones
v. Jones, 51 Ark. App. 24, 907 S.W.2d 745 (1995).  We granted
review pursuant to Ark. Sup. Ct. R. 1-2(a)(11) and (f)(1), as we
have decided a previous appeal involving the parties.  See Jones v.
Jones, 320 Ark. 449, 898 S.W.2d 23 (1995).  Upon a de novo review
of the entire record, we conclude that the chancellor erred in
shifting the burden of proof away from Dr. Jones, the party seeking
modification, to require Ms. Jones to prove her ability to
adequately provide an emotional and stable home environment for the
child.  When viewing the erroneous shifting of the burden of proof
on this issue together with the chancellor's faulty reliance on Ms.
Jones's move to Little Rock and Dr. Jones's remarriage as material
changes in circumstances, we must conclude that the chancellor's
decision to change custody to Dr. Jones was clearly erroneous.  For
the reasons set forth below, we reverse and remand with
instructions to reinstate the original custody order.  
     The one-sided nature of these proceedings requires a detailed
recitation of the facts.  The parties' son, Cameron, was born on
October 27, 1989.  Dr. Jones, an OB-GYN physician, participated in
his son's delivery, as did his current wife, Diana, who was the
labor nurse. While Diana's and Dr. Jones's relationship began in
September 1990,  Dr. Jones and Christine Jones were not divorced
until November 13, 1990, just shortly after Cameron's first
birthday.  The divorce decree awarded custody of Cameron to Ms.
Jones, provided that Dr. Jones was to pay $2,000.00 per month in
child support, and required that both parties communicate and
correspond with each other regarding Cameron's health, education,
and welfare.  The following April, Dr. Jones and Diana, who had
custody of a child from a previous marriage, were married.  That
same year, Christine Jones, also a nurse, got a job with a Little
Rock doctor and moved to Little Rock.  Dr. Jones opposed the move
and offered Ms. Jones $20,000.00 for down payment on a house if she
would stay in Conway. According to the parties' counselor, Arnold
Murray, Dr. Jones told him in January of 1992 that, if Ms. Jones
did not allow him more visitation with Cameron, he would take her
to court and take the child away from her because he had more money
to pursue the case than she did.
     In April of 1992, without informing Ms. Jones, Dr. Jones took
Cameron to his friend and medical-school classmate, Dr. Justin A.
Ternes of Fayetteville, for an evaluation.  Dr. Jones related to
Dr. Ternes that Cameron had been biting and hitting himself.  Dr.
Ternes recommended that Cameron see Dr. Gayle Harrison, a
developmental psychologist in Little Rock.  Dr. Harrison began
seeing Cameron in August of 1992.  After observing him for five
months, Dr. Harrison noted that Cameron was making progress. 
Sometime in November of 1992, Dr. Jones told Dr. Harrison that he
was thinking of getting custody of Cameron.  On November 13, Dr.
Harrison spoke with Dr. Jones's attorney, Helen Rice Grinder, by
telephone.  On December 3, Ms. Grinder went to Dr. Harrison's
office, at which time Dr. Harrison noted on her file that Dr. Jones
planned to seek permanent custody.  The following Thursday,
December 10, Dr. Harrison saw Cameron and determined that he had
regressed to the point that he needed to remain with Dr. Jones. 
Approximately 4:30 p.m. the next day, Dr. Harrison faxed a letter
directly to the chancellor.  In her letter, Dr. Harrison reported
that Dr. Jones had brought Cameron to her office after having
picked him up from Ms. Jones's home.  She observed that Cameron's
behavior had significantly regressed, as he had hidden in a corner,
was withdrawn, fearful, clingy, hypervigilant, and unusually
disorganized.  Dr. Harrison attributed the cause of this behavior
to Christine Jones, for Dr. Jones had told her the child had just
come from her home.  
     After receiving a copy of Dr. Harrison's letter, Ms. Grinder
requested a letter from Dr. Ternes.  Dr. Ternes, expressing a
similar concern that an emergency change in custody was necessary,
composed a letter to the chancellor and faxed it to Ms. Grinder's
office.  On Sunday morning, December 13, 1992, Dr. Jones attached
these letters to his petition and affidavit for permanent change of
custody and emergency ex parte relief.  The chancellor issued an
emergency order providing that Dr. Jones was not required to return
Cameron to Ms. Jones.  On December 14, Ms. Jones received notice
that an emergency custody hearing would be held on December 16. 
This was the first time she learned that Cameron was receiving
therapy.   
     Following a brief hearing on December 16, the chancellor
concluded that there was some evidence of danger to Cameron and
ruled that temporary custody would be placed with Dr. Jones. 
However, in contravention to his finding that Ms. Jones posed a
danger to Cameron, the chancellor expressed his desire that the
parties settle their custody dispute before the Christmas holidays
and announced that Ms. Jones would be awarded "standard"
visitation.  On December 18, without first submitting the proposed
precedent to Ms. Jones's counsel, the chancellor entered a second
ex parte order, prepared by Dr. Jones's counsel, which provided
that Ms. Jones's weekday visitation was subject to Dr. Harrison's
review and that Ms. Jones was not to take Cameron to any other
psychologists or psychiatrists without court approval.  The order
also abated Dr. Jones's $2,000.00 per month child-support
obligation.  Despite Ms. Jones's objection to the ex parte nature
of these proceedings, the chancellor entered yet a third ex parte
order on January 4, 1993, revoking her weekday visitation.  This
order was precipitated by Dr. Harrison's second ex parte
communication to the chancellor recommending that transitional
situations be kept to a minimum to avoid detriment to the child.  
     On January 14, 1993, Ms. Jones filed a motion asking the
chancellor to reconsider his three ex parte orders and to recuse
from the case.  Without ruling on the recusal issue, the chancellor
sent a letter to the parties On March 22 indicating that he was
granting Dr. Jones's request that Dr. Wrenda Gallien be appointed
to perform a psychological examination of Diana and him.  The
chancellor issued a fourth ex parte order on April 20, in which he
appointed Dr. Gallien's firm, the Family Guidance Center, to
compare parenting abilities of Dr. Jones, Diana Jones, and
Christine Jones.  The order made no provision for the testing of
Cameron.     
     The final hearing on Dr. Jones's permanent-custody petition
began on February 15, 1994.  On March 7, the chancellor entered a
written order granting Dr. Jones's petition on the basis of three
factors: (1) Ms. Jones was unable to provide for Cameron's
emotional needs; (2) Ms. Jones had moved from Conway, where Dr.
Jones lived, to the higher crime area of Little Rock; and (3) Dr.
Jones had recently remarried and thus had a more stable family
situation.  
     In reviewing chancery cases, we consider the evidence de novo,
but will not reverse a chancellor's findings unless they are
clearly erroneous or clearly against the preponderance of the
evidence.  ARCP 52(a).  Generally, courts impose more stringent
standards for modifications than for initial determinations of
custody.  Jeff Atkinson, Modern Child Custody Practice,  9.02 at
452 (1986).  In Arkansas, child custody is determined by what is in
the best interests of the child, and it is not altered absent a
material change in circumstances.  Purtle v. Committee on
Professional Conduct, 317 Ark. 278, 878 S.W.2d 714 (1994); Ark.
Code Ann.  9-13-101 (Repl. 1993).  The majority of states follow
this approach.  Atkinson, Modern Child Custody Practice,  9.05 at
458.  Using these basic principles as guideposts, we will now
discuss separately the three changes in circumstances on which the
chancellor relied.   

              Christine Jones's move to Little Rock
     Ms. Jones challenges the chancellor's finding that her move
from Conway to the Hillcrest area in Little Rock constituted a
material change in circumstances.  At the final hearing, Dr. Jones
presented the testimony of Jim King, a private investigator he had
employed to complete a crime-statistical comparison of his and Ms.
Jones's respective neighborhoods.  King looked at a ten-block area
of Ms. Jones's Hillcrest neighborhood and a ten-block area of Dr.
Jones's Pippinpost neighborhood in Conway.  Having gathered
statistics from the Arkansas Crime Information Center,  King
testified, over Ms. Jones's objection, that a person was "99
percent more likely to become a victim of crime in the Little Rock
area than in the Conway neighborhood."  Finally, King characterized
the Hillcrest neighborhood as a "war zone."  While the chancellor
was evidently persuaded by Dr. Jones's argument, we find it lacking
in both legal and factual support.   
     Under Dr. Jones's theory, the parent living in the
statistically safer neighborhood, town, or city should have an
advantage in custody disputes.  This has never been the law in
Arkansas, and we refuse to make such an inequitable principle part
of our jurisprudence.  In determining support awards, we have
encouraged divorced spouses to acquire financial independence.  For
example, we have held that a court, under proper circumstances, may
impute an income to a spouse according to what could be earned by
the use of his or her best efforts to gain employment suitable to
his or her capabilities.  Grady v. Grady, 295 Ark. 94, 747 S.W.2d 77 (1988).  In this case, Ms. Jones, in an effort to support
herself and her child, moved to Little Rock after obtaining a job
there.  Thus, it would be inconsistent for us to allow our courts
to impose a custody penalty as a price of compliance with our
policy of encouraging economic autonomy.  
     In Ising v. Ward, 231 Ark. 767, 332 S.W.2d 495 (1960), we
reversed a chancellor's decision denying a divorced wife's
application for permission to take her three-year-old child to
Oklahoma where she and her new husband wished to establish their
home.  The chancellor's disapproval was based solely on the trailer
home's location, as the trailer sat on a hill or ridge some fifty
to one hundred yards from the edge of Tenkiller Lake.  We wrote:  
          If one is inclined to be fearful the threat of
     danger can be discovered everywhere, in the crowded
     streets of the city or, as here, in the comparative
     seclusion of the countryside.  We know, however, that in
     Arkansas and throughout America thousands and thousands
     of children, representing many generations, have grown up
     from infancy next to rivers, to lakes, to mountain
     slopes, and to countless other natural conditions fully
     as hazardous as those existing near Tenkiller Lake.   An
     attempt to shelter a growing child from every possible
     danger is manifestly futile, and it is certain that
     complete security cannot be achieved by means of a court
     decree.  In practice the responsibility for choosing a
     child's environment must ordinarily rest upon the parent
     having custody of the child.  The normal love of a
     parent, especially of a mother, for her child provides
     the best possible assurance that the infant will not be
     needlessly exposed to danger.  We find in this record no
     proof to persuade us that the appellant cannot be relied
     upon to look after her daughter in the new home that she
     and her husband wish to occupy.

231 Ark. at 770.  
     Other jurisdictions have recognized the inherent flaws in  Dr.
Jones's argument.  We find the case of Fitzsimmons v. Fitzsimmons,
722 P.2d 671 (N.M.App. 1986), particularly instructive.  In that
case, the husband, in seeking an original award of custody, argued
that, while he remained in the small town of Grants, New Mexico,
the wife's new residence in Albuquerque posed a danger to their
children.  While the trial court was persuaded by the husband's
argument, the New Mexico Court of Appeals reversed:
          The logic of [husband's] argument is faulty.  A
     person, through no fault of his own, can be a crime
     victim in any American community. . . To accept husband's
     argument would require us to find that living in
     Albuquerque is inherently dangerous, and custody should
     never be awarded to a parent residing there.  To state
     the proposition is to expose its fallacy.

722 P.2d   at 678.  See also King v. King, 500 P.2d 267 (Or. App.
1972)(husband's claim that wife lived in a neighborhood with a high
incidence of crime rejected as a change of circumstances justifying
a change in custody).  Similarly, we are not persuaded that Ms.
Jones's move to Little Rock, in and of itself, was a material
change in circumstances.  To the extent the chancellor relied on
this faulty premise in making his decision on the permanent-custody
issue, his ruling was in error.
       
                     Dr. Jones's remarriage
    Ms. Jones also contests the chancellor's reliance on Dr.
Jones's remarriage as a material change in circumstances.  While we
have previously held that remarriage of one of the parties is a
factor that may be considered when deciding what is in a child's
best interest, we have applied this principle to modifications of
support obligations. Thurston v. Pinkstaff, 292 Ark. 385, 730 S.W.2d 239 (1987); Reynolds v. Reynolds, 299 Ark. 200, 771 S.W.2d 764 (1989).  Regarding matters of child custody, Professor Atkinson
recites the majority view that a change of circumstances of the
noncustodial parent, including a claim of an improved life because
of a recent marriage, is not sufficient to justify modifying
custody.  Atkinson, Modern Child Custody Practice,  9.07 at 462-
463; see also Delgado v. Silvarrey, 528 So. 2d 1358 (Fla. App. 3
Dist. 1988)(father's remarriage and anticipation of higher standard
of living did not amount to circumstances sufficient to support
change in custody); Spoor v. Spoor, 641 N.E.2d 1282 (Ind.App. 3
Dist. 1994)(changes in lifestyle, including remarriage, do not
warrant a change in custody).  When examining the facts in this
case, we cannot agree that Dr. Jones's remarriage constituted a
material change in circumstances.
     Dr. Jones married his present wife, Diana, five months after
the parties' divorce.  He admitted at trial that their relationship
began in September 1990, predating the parties' November divorce. 
During oral argument, Dr. Jones agreed that, at the time of the
original divorce decree, it was within his reasonable contemplation
to remarry.  
     In Fullmer v. Fullmer, 761 P.2d 942 (Utah App. 1988),
immediately following the parties' divorce, the husband remarried
a woman who was pregnant with his child before the divorce was
final.  While the husband stipulated to the initial custody
arrangement that the wife be awarded custody, he petitioned for
modification only sixteen months later.  In his petition, he
claimed that, while the wife's full time job would cause the
child's placement in day care, his new wife was a full-time
homemaker.  The Utah Court of Appeals rejected his argument,
reasoning that the alleged change in circumstances was within the
reasonable contemplation of the husband and thus not legally
cognizable:
     It is also reasonable to assume that respondent would
     remarry soon after the parties' divorce and have another
     child as . . . his second wife was pregnant with
     respondent's child before the parties' divorce was final. 
     Given respondent's awareness of the circumstances at the
     time he voluntarily entered into the stipulation which
     awarded appellant custody, we find his petition to modify
     custody the very type of litigation and harassment from
     which our supreme court has attempted to protect
     custodial parents.

761 P.2d   at 947-948. 
     Stated simply, Dr. Jones cannot use the circumstances he
created as grounds to modify custody.  Given his awareness of the
circumstances at the time he voluntarily entered into the agreement
to award custody of Cameron to Ms. Jones, we cannot agree that his
remarriage constituted a material change in circumstances.

                    Cameron's emotional needs
     The remaining factor alleged by Dr. Jones was that Ms. Jones
had borderline personality disorder with a continuing mental and
emotional problem that had caused Cameron to suffer emotional
problems.  The chancellor found that Ms. Jones's inability to
provide for the emotional needs of the child was a material change
in circumstances that justified modification of the original
custody award.      
     A judicial award of custody should 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, or
when there is a showing of facts affecting the best interest of the
child that were either not presented to the chancellor or were not
known by the chancellor at the time the original custody order was
entered.  Stamps v. Rawlins, 297 Ark. 370, 761 S.W.2d 933 (1988). 
The party seeking modification of the child-custody order has the
burden of showing a material change in circumstances.  Carter v.
Carter, 19 Ark. App. 242, 719 S.W.2d 704 (1986).  While an
agreement of the parties regarding custody is not binding on the
courts, it is of some importance as tending to show attitude at the
time the original divorce suit was filed. Burnett v. Clark, 208
Ark. 241, 185 S.W.2d 703 (1945).   
      In this case, at the time the original decree was entered,
Dr. Jones agreed that Ms. Jones would have custody of Cameron.  The
chancellor recognized in his final order that both parties must
have considered each other to be fit and proper persons to have
custody of the child, and that the custody in Ms. Jones was what
both parties felt to be in the best interest of the child at the
time.  Both parties agreed to communicate and correspond with each
other regarding Cameron's health, education, and welfare.
     In violation of this agreement, Dr. Jones, giving no notice to
Ms. Jones, took Cameron to see Dr. Ternes in April of 1992, then
Dr. Harrison in August of 1992.  One week after meeting with Dr.
Jones and his attorney regarding Dr. Jones plans to change custody,
Dr. Harrison faxed an ex parte letter to the chancellor claiming
that an emergency existed necessitating that Cameron not be
returned to his mother.  At the request of Dr. Jones, Dr. Ternes
composed a letter containing a similar recommendation and faxed it
to Dr. Jones's attorney, who in turn delivered it to the chancellor
along with Dr. Jones's verified petition and affidavit.  After
receiving this information from Dr. Jones and the experts he had
employed, the chancellor granted his request for emergency ex parte
relief.
     Professor Atkinson criticizes ex parte communication between
an expert and the judge as improper. Atkinson, Modern Child Custody
Practice,  12.16 at 148 (Supp. 1995).  We agree.  The letters from
Dr. Harrison and Dr. Ternes were not under oath, see Ark. Code Ann.
 16-40-103(b)(Repl. 1994), and should not have been considered by
the chancellor. 
     We are further troubled by the chancellor's second ex parte
order, which gave Dr. Jones's expert, Dr. Harrison, the authority
to modify Ms. Jones's weekday visitation if she found it was
detrimental to the child.  Professor Atkinson observes that,
although a court may base its decision on the opinion of an expert,
it cannot delegate to the expert the power to make a decision.
Atkinson, Modern Child Custody Practice,  12.15 at 687; see also
Shapiro v. Shapiro, 458 A.2d 1257 (Md. App. 1983).  In Arkansas,
chancery courts have subject-matter jurisdiction to decide the
custody, support, and visitation of a child born of the marriage. 
McCormac v. McCormac, 304 Ark. 89, 799 S.W.2d 806 (1990).  Not only
did the chancellor delegate jurisdiction of the visitation question
to Dr. Jones's expert in this case, Dr. Harrison exercised this
extraordinary grant of power by way of her ex parte letter to the
court stating that Ms. Jones's weekday visitation should be
terminated.  The chancellor entered a third ex parte order to this
effect on January 4, 1993, thus denying Ms. Jones's weekday
visitation.  While it is permissible for the chancellor to base an
award of custody or visitation after hearing the opinions of
experts, we resolve that he cannot delegate this judicial function
to someone outside the court, especially to an expert employed by
one of the parties.
     After receiving a request from Dr. Jones that Dr. Wrenda
Gallien be appointed to perform a psychological evaluation, the
chancellor entered a fourth ex parte order appointing Dr. Gallien's
firm, the Family Guidance Center, to compare parenting abilities of
Dr. Jones, Diana Jones, and Christine Jones.  While a comparison of
parenting skills might well be appropriate in determining an
initial award of custody, the chancellor's fourth ex parte order
seems to gloss over the issue before him -- whether a material
change in circumstances and the best interest of the child
necessitated a change in custody. 
     The expert testimony presented at the final hearing on this
alleged change in circumstances included the following.  Dr.
William Siegal treated Ms. Jones in 1987 and diagnosed her as
having a borderline personality disorder.  Dr. Avram Jeffrey Zolten
of the Family Guidance Center examined Ms. Jones and observed that
she exhibited paranoid behavior.  However, he agreed that he and
Ms. Jones encountered difficulties when Ms. Jones wanted to tape
record the evaluation.  While Dr. Zolten found no evidence that she
was incapable of adequate parenting, he expressed concern regarding
Ms. Jones's statement that, when she raised her voice to discipline
Cameron, he would run to the corner and cry.  Dr. Warren Douglas
examined Ms. Jones nine times in 1993 and "totally disagreed" with
Dr. Siegal's diagnosis that she had a borderline personality
disorder.  He observed that she was very stable, and had no
concerns about her parenting abilities or skills.  
     Dr. Harrison and Dr. Becky Porter treated Cameron and opined
that he had been traumatized by a female authority figure.  While
neither doctor saw Ms. Jones, both testified that her home
presented an unstable environment for the child.  Dr. Wrenda
Gallien, the court-appointed psychiatrist, testified that Cameron
should remain with his mother.  She opined that the child would
suffer severe trauma if custody were changed because he would be
taken from his mother, who had raised him for the two years since
the divorce.  Dr. Gallien also criticized Dr. Harrison's ex parte
communication with the chancellor.  According to Dr. Gallien, this
conduct both constituted and resulted in a "travesty of justice." 
     Despite the many experts who testified at the final hearing,
we note the absence of a disinterested evaluation of the minor
child.  We think it significant that the chancellor, through its
second ex parte order, provided that, while Ms. Jones's weekday
visitation was subject to review by Dr. Jones's expert, Ms. Jones
could not take Cameron to any other psychologists or psychiatrists
without court approval.  
     While the chancellor specifically rejected Dr. Jones's
contention that Ms. Jones suffered from borderline personality
disorder, he made the following finding in his written order:
          While [Ms. Jones] has proven that she is able to
     function adequately and competently in most areas of her
     social and work life, the Court questions [her] ability
     to adequately provide an emotional, stable and wholesome
     home for the child.  

(Emphasis added.)  The chancellor's finding that Ms. Jones had not
proven that she was able to provide an emotional and stable home
environment for Cameron convinces us that he erroneously shifted
the burden of proof to Ms. Jones.  The chancellor's repeated entry
of ex parte orders, his reliance on ex parte communications from
Dr. Jones's expert, Dr. Harrison, and his failure to appoint a
neutral expert to examine the child, lead us to the conclusion that
Dr. Jones was somehow relieved of the legal burden to prove that a
material change of circumstances and the best interest of the child
warranted modification of the initial custody order.     
     We are mindful of the fact that, as a result of today's
decision, Cameron, now age six, will face another change of
custody.  Yet to uphold the chancellor's shifting of the burden of
proof in this case would be to undermine the very purpose of our
elevated standard of proof in modification proceedings -- to
promote stability and continuity in the life of the child.  In sum,
when viewing together the repeated entry of ex parte orders, the
erroneous shift of the burden to Christine Jones to prove her
emotional stability, and the chancellor's faulty reliance on her
move to Little Rock and Dr. Jones's remarriage as material changes
in circumstances, we must conclude that the chancellor's decision
to change custody to Dr. Jones was clearly erroneous.  In so
holding, it is unnecessary for us to address Ms. Jones's remaining
arguments pertaining to the temporary custody award.  Vairo v.
Vairo, 27 Ark. App. 231, 769 S.W.2d 423 (1989).
      Reversed and remanded with instructions to reinstate the
original custody order.