ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE

DIVISION I

AMANDA LEWELLYN,

APPELLANT

V.

TIM LEWELLYN,

APPELLEE

CA01-1168

JUNE 26, 2002

APPEAL FROM THE POPE COUNTY CIRCUIT COURT,

NO. E2000-207,

HON. RICHARD E. GARDNER, JR., JUDGE

REVERSED AND REMANDED

Divorced in December 2000, Amanda Lewellyn and Tim Lewellyn held joint custody of their two children, Kelly and Jake. The parties agreed, and this agreement was incorporated into the divorce decree, that a move by either parent a distance of more than twenty-five miles from the Pope County courthouse would be considered a material change of circumstance. Subsequent to the divorce, the mother married a man who worked in Fayetteville and she obtained a job in Fayetteville as well. In July 2001, she petitioned for change of custody and for permission to move with the children to Fayetteville. In response, the father also sought to change custody of the children. The court changed custody of the children to the father, stating that "these children have had enough trauma and change in their lives over the last year and a half that a further relocation to a different area would be

extremely traumatic to them." The mother appeals, contending that the trial court erred on multiple points. The mother's essential contention throughout these multiple points is that the trial court erred by granting custody to the father upon the basis of her prospective relocation.

To address the parties' agreement that either party's relocation more than twenty-five miles from the courthouse would be considered a material change of circumstance, we hold that such agreement is not binding upon the court. The court in Servaes v. Bryant, 220 Ark. 769, 250 S.W.2d 134 (1952), was faced with an agreement in which divorced parents agreed that custody should lie with the father. The mother later petitioned for custody. Considering the parties' agreement, the court stated, quoting Burnett v. Clark, 208 Ark. 241, 185 S.W.2d 703 (1945), that "[o]f course, this agreement, like any other agreement as to the custody of a child, was not binding [on the court], but it is of some importance as tending to show attitude at the time the original divorce suit was filed." Servaes, supra, at 774, 250 S.W.3d at 136. The Servaes court acknowledged that, "[o]f primary consideration is always the best interest and future well-being of the child, the innocent sufferer." Id. at 772, 250 S.W.2d at 135.

In Parker v. Parker, 75 Ark. App. 90, 55 S.W.3d 773 (2001), the parties' agreement that the children would not be relocated for the next five years was incorporated into a temporary order in contemplation of divorce. In reversing the chancellor's denial of the mother's petition to relocate within that five years, we noted that the chancellor had givenconsiderable weight to the agreement and stated that "[t]he temporary agreement should have been viewed as nothing more than an indicator that, at some point, appellant and appellee shared the attitude that the children should not be moved from Craighead County for a period of five years after the divorce." Id. at 100, 55 S.W.3d at 780.

Similarly, while the parties' agreement in the case at bar acknowledges both parties' desire for the children not to be moved out of the area, it cannot bind the court to a finding of materially changed circumstances. If such an agreement was binding, the court would be stripped of its judicial function and it, and the children, would be at the mercy of the parties' agreement, circumventing our well-settled legal standards.

We review chancery cases de novo and reverse the findings of the chancellor only if his findings are clearly erroneous. Gerot v. Gerot, 76 Ark. App. 138, 61 S.W.3d 890 (2001). Custody should not be changed unless conditions have altered since the decree was rendered or material facts existed at the time of the decree but were unknown to the court, and then only for the welfare of the child. Id. The chancellor must first determine that a material change in circumstances has occurred since the last order of custody; if that threshold requirement is met, he must then determine who should have custody with the sole consideration being the best interest of the child. Id.

The mother contends that her relocation to Fayetteville was used by the trial court to her detriment; that the father did not provide any other evidence of a material change of circumstance other than her remarriage and intended relocation; and that such factors couldnot support a finding of a material change of circumstances. We agree.

The father contends that this order is not a final, appealable order. His contention is foreclosed by Ford v. Ford, 347 Ark. 485, 490, 65 S.W.3d 432, 435 (2002), in which the court stated that "[w]e hold that Ark. R. App. P., Civil 2(d) permits an appeal from any order that is final as to the issue of custody, regardless of whether the order resolves all other issues."

The father next contends that the issue of whether the trial court erred in its finding of a material change of circumstance is not preserved for our review because the mother, by filing the petition for change of custody, admitted that there was a material change of circumstances. The father cites the established rule that a party must first present its argument to the trial court in order to preserve it for appellate review. It is fundamental that a party cannot argue on appeal that which was not argued below. However, as a preservation argument, this must fail, as the issue of whether a material change of circumstances existed was certainly raised by the parties and ruled upon by the court. At the trial court, the mother alleged and argued that there were material changes of circumstances that warranted granting sole custody to her. The trial court ruled upon this issue, disagreeing with her argument and transferring custody to the father. On appeal, the mother contends that the trial court erred in finding a material change of circumstances such that it was in the best interest of the children to warrant granting sole custody to the father. This argument is preserved for our review.

A material change in circumstances affecting the best interest of the child must be shown before a court may modify an order regarding child custody. Swadley v. Krugler, 67 Ark. App. 297, 999 S.W.2d 209 (1996). The appellate court gives due deference to the superior position of the chancellor to view and judge the credibility of the witnesses. Id. We review de novo, but reverse only if the findings are clearly contrary to the preponderance of the evidence. Id.

Turning to the merit, we find Gerot, supra, to be persuasive. In Gerot, we reversed the chancellor's change of custody to the father because the decision was based solely upon the mother's relocation and testimony that the child had an improved attitude when she was living with her father. Furthermore, in Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767 (1996), the court held that the father's remarriage and the mother's relocation could not constitute a material change in circumstances to support a change of custody to the father. We recognize that Jones has been narrowly applied, in light of the fact that the father in Jones was contemplating the remarriage at the time of the divorce and that the court was aware of this fact. In Hollinger v. Hollinger, 65 Ark. App. 110, 986 S.W.2d 105 (1999), we distinguished Jones, supra, and upheld a change of custody to the father when the mother had relocated and the father had remarried. However, we stated that

Hollinger, supra at 114, 986 S.W.2d at 107.

In the case at bar, the letter opinion of the chancellor states that:

It is evident that the judge's decision to grant custody to the father was premised entirely upon the mother's relocation to a different area and the trauma that he believed it would cause. Relocation, by itself, cannot support a change of custody. See Jones, supra; Gerot, supra; Hollinger, supra. While remarriage may in some instances constitute a material change of circumstances, in the case at bar there was no further evidence in the record, such as "decidedly strained" relations between the children and the mother, no clear preference of the children, and no lengthy passage of time such as in Hollinger, supra, to support a finding of a material change of circumstances justifying a change of custody to the father. Furthermore, there is no evidence in the record that a relocation would be traumatic for the children. The testifying psychologist, Dr. Don Ott, presented neither facts nor a professional opinion to support a finding of trauma to the children as a result of the relocation to a different area. Although the psychologist did state that "I do not think that her academic performance will suffer as a result of her being moved to Fayetteville, I would be more concerned with her emotional state and her having to make an additionaladjustment," he provided no basis for his concern. Furthermore, no other witnesses testified that the relocation to Fayetteville would be traumatic for the children.

We recognize that unlike Gerot, Jones, and Hollinger, the case at bar involves joint custody. In Thompson v. Thompson, 63 Ark. App. 89, 974 S.W.2d 494 (1998), we affirmed the chancellor's finding of a material change of circumstance when the record was clear that the parties had "fallen into such discord that they [were] unable to cooperate in sharing the physical care of the child." While a parent's desire to relocate with the child may provide some evidence of discord, in the case at bar the record does not demonstrate that the parties had fallen into such discord that it rendered them unable to cooperate in sharing the physical custody of the child.

Because the court granted the change of custody to the father, it did not consider the mother's petition to relocate to Fayetteville apart from its determination that such relocation constituted a basis on which to change custody of the children to the father. In considering a petition to relocate, the court must first determine whether a move would result in a real advantage to the family as a whole. Staab v. Hurst, 44 Ark. App.128, 868 S.W.2d 517 (1994). Following such a finding, the court must then consider the factors which we set forth in Staab, supra. These factors should include: (1) the prospective advantages of the move in terms of its likely capacity for improving the general quality of life for both the custodial parent and the children; (2) the integrity of the motives of the custodial parent in seeking the move in order to determine whether the removal is inspired primarily by thedesire to defeat or frustrate visitation by the non- custodial parent; (3) whether the custodial parent is likely to comply with substitute visitation orders; (4) the integrity of the non-custodial parent's motives in resisting the removal; (5) whether, if removal is allowed, there will be a realistic opportunity for visitation in lieu of the weekly pattern which can provide an adequate basis for preserving and fostering the parent relationship with the non-custodial parent. Id.

Because the trial court erred in changing custody of the children to the father on the basis of the mother's relocation, we reverse. Because the trial court failed to address the Staab factors in its consideration of the mother's petition to relocate, we remand to the trial court for its consideration of the Staab factors in deciding the relocation issue.

Reversed and remanded.

Hart, J., agrees.

Neal, J., concurs.

Olly Neal, Judge, concurring. I agree with the majority that this case should be reversed and remanded because it is evident that the judge's decision to grant custody to the father was premised entirely upon the mother's relocation to a different area and the trauma that he believed it would cause. However, I write simply to point out that at the time of the filing of the petition to change custody in this case, the parties had joint custody.

In Thompson v. Thompson, 63 Ark. App. 89, 92-3, 974 S.W.2d 494, 496 (1998), we said:

Joint custody or equally divided custody of minor children is not favored in Arkansas unless circumstances clearly warrant such action. Drewry v. Drewry, 3 Ark. App. 97, 622 S.W.2d 206 (1981). The mutual ability of the parties to cooperate in reaching shared decisions in matters affecting the child's welfare is a crucial factor bearing on the propriety of an award of joint custody, and such an award is improper where cooperation between the parents is lacking. 24 Am. Jur. 2d Divorce and Separation § 990 (1983). . . . . In the case at bar it is clear that the parties have fallen into such discord that they are unable to cooperate in sharing the physical care of the child, and we hold that the chancellor did not err in finding that this constituted a material change in circumstances affecting the child's best interest sufficient to warrant modification of the joint-custody decree. See 2 Homer H. Clark, Jr., The Law of Domestic Relations § 20.9, at 554 (2d ed. 1987).

I write merely to make evident that this court has determined that where the parties share joint custody, their inability to cooperate in sharing the physical care of the child is in itself a material change of circumstances. See id.