ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

LARRY D. VAUGHT, JUDGE

DIVISION II

STEVEN ANDERSON

APPELLANT

V.

TAMMY ANDERSON

APPELLEE

CA00-1125

June 6, 2001

APPEAL FROM THE FAULKNER COUNTY CHANCERY COURT

E-94-967

HON. DAVID LEE REYNOLDS, JUDGE

REVERSED AND REMANDED

This is an appeal from an order of the Faulkner County Chancery Court granting appellee's motion for directed verdict on appellant's petition for change of custody. Appellant's only argument for reversal is that the trial court erred in granting a directed verdict. We agree with appellant, and accordingly we reverse and remand for further proceedings.

The parties to this action divorced in October 1994. Appellee Tammy Anderson was awarded custody of their minor son, Michael. On July 19, 1999, appellant Steven Anderson filed a petition for change of custody alleging a material change in circumstances because Tammy was exposing Michael to an immoral lifestyle, providing an unstable home life, and not providing proper health care for Michael. Appellee denied the allegations of the petition. The hearing was held on December 13, 1999.

At the close of appellant's evidence, appellee moved for a directed verdict, stating that there had been no proof of a change in circumstances warranting a change of custody. The court granted the motion for directed verdict and found that Tammy's delay in obtaining Michael's dental work was not neglect and that because both parties were having sexual relations with their current spouses prior to marriage, the appellant's immorality argument was made with "unclean hands."

Appellant argues that he submitted sufficient proof to withstand appellee's motion for directed verdict at the close of his case. We agree. A directed verdict is proper only where the evidence, when viewed in the light most favorable to the nonmovant, is so insubstantial as to require a jury verdict for the movant to be set aside. Potlatch Corp. v. Triplett, 70 Ark. App. 205, 16 S.W.3d 279 (2000). In determining whether to grant or deny a motion to dismiss, the chancellor must determine whether the evidence would be sufficient to present to a jury if the case were a jury trial. Jones v. Abraham, 341 Ark. 66, 25 S.W.3d 310 (2000). On appeal from a chancery court order granting a directed verdict, the appellate court must decide specifically whether the plaintiff made a prima facie case of entitlement to the relief requested. Jamison v. Estate of Goodlett, 56 Ark. App. 71, 938 S.W.2d 865 (1997). This requires that the evidence presented by the party against whom the directed verdict is sought must be given the highest probative value, taking into account all reasonable inferences therefrom. Id.

The law is well-settled that the primary consideration on child-custody cases is the welfare and best interest of the child. Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d 520 (1999). Custody awards are not made or changed to gratify the desires of either parent, or to reward or punish either of them. Watts v. Watts, 17 Ark. App. 253, 707 S.W.2d 777 (1986). The original decree is a final adjudication that one parent or the other was the proper person to have care and custody of the children. Id. An award of custody should not be changed unless it is shown that there are changed conditions that demonstrate a modification of the decree is in the best interest of the child, or that material facts affecting the best interest of the child were unknown to the chancellor at the time ofthe decree. Id. Courts generally impose more stringent standards for modification of custody than for initial determinations of custody. Hamilton v. Barrett, supra.

At the hearing, appellant testified that appellee began seeing Joe Woodsen in February 1999. He testified about statements appellee made to him directly or in her deposition concerning her relationship with Mr. Woodsen. Appellee admitted that she spent several nights a week with Mr. Woodsen before they were married on August 15, 1999. Of the nights she spent with Mr. Woodsen, two or three nights a week were in Michael's presence and one or two nights she left Michael with other people. Appellant testified that on one occasion, he could not get in touch with appellee or Michael by telephone for days. The only contact he had with Michael during that time was when Michael called him from Mr. Woodsen's home and said "we're at Joe's, I love you Dad." Appellant testified that he never exposed Michael to an improper lifestyle, and never spent the night with his current wife when Michael was present prior to their marriage. Appellant felt that appellee was teaching Michael the wrong message about honesty during the time she and Mr. Woodsen were dating. According to appellant, appellee concealed the relationship from him and tried to have Michael do the same, causing emotional problems for Michael.

Appellant also testified that he was concerned about Michael's dental care. Appellant testified that at the time of the divorce, he had taken Michael to the dentist. At that time, all of Michael's teeth had come in and he had no cavities. Michael was supposed to have a check-up in September 1998, when he was in appellee's custody. When appellant learned that Michael had not been taken to the dentist in over a year and a half, he wrote appellee a letter, suggesting that she take Michael to the dentist. In March 1999, appellee explained to appellant that she had not taken Michael to the dentist because she had to take care of her older's son's dental problems first. Since appellee had still not taken Michael to the dentist as of July 1999, appellant took Michael to thedentist during his summer visitation with Michael. After diagnosing several cavities, the dentist referred Michael to a pediatric dentist who could not see Michael before his summer visitation with appellant ended. Appellant informed appellee of "the severity of the situation" and advised her that he had made an appointment for Michael with the pediatric dentist. Appellee refused to allow appellant to take Michael to the scheduled appointment, and she did not take Michael until August 20th, four weeks after the first scheduled appointment. Michael's dental work was scheduled to be completed by the end of October, but ultimately had not been completed at the time of the hearing in December 1999. Appellant attributed the delay to appellee's refusal to allow him to take Michael to the dentist and to her insistence in only accepting 8:00 a.m. appointments.

Clearly, this court and the supreme court have never condoned a parent's promiscuous conduct or lifestyle when such conduct has been in the presence of the child. See Ketron v. Ketron, 15 Ark. App. 325, 692 S.W.2d 261 (1985)(citations omitted). We have approved a change in custody where the custodial parent has been involved in illicit sexual relationships. See Thigpen v. Carpenter, 21 Ark. App. 194, 730 S.W.2d 510 (1987). Further, it has never been necessary to prove that illicit sexual conduct on the part of the custodial parent is detrimental to the children; Arkansas courts have presumed that it is. Id. We do not weigh the evidence in reviewing a directed verdict but view it in the light most favorable to the party against whom the directed verdict is sought. Jamison, supra. Considering appellee's admission of spending the night at Mr. Woodsen's house with Michael prior to their marriage and appellee's delay in obtaining dental care for Michael, and giving this evidence its highest probative value, we must conclude that appellant made a prima facie case, and the chancellor erred in granting the directed verdict.

Reversed and remanded.

Griffen, J., agrees.