ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
 

DIVISION II

JEFF MAYS

APPELLANT

V.

DONNA LEE MAYS

APPELLEE

CA03-172

October 29, 2003

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CA 91-3377]

HON. ELLEN B. BRANTLEY,

JUDGE

AFFIRMED

Robert J. Gladwin, Judge

Appellant Jeff Mays appeals the decision of the Pulaski County Circuit Court denying his motion for a change of custody. He argues on appeal that the trial court erred in finding that there was not a sufficient material change in circumstances to warrant a change in custody of the parties' thirteen-year-old son. We affirm.

The parties to this action were divorced on November 13, 1991, and their son, H.M., who was two years of age at the time, was placed in the custody of appellee. In February of 2002, appellee's husband accepted a job transfer from Little Rock to Dallas, Texas. Appellee filed a motion to modify visitation and a motion to increase child support. Appellant filed a motion for change of custody. Following the hearing, the trial court found that while both homes were "excellent," offering stable marriages and a nice environment, the move to Dallas did not constitute a material change in circumstances sufficient to justify a change in custody.

In reviewing child custody cases, we consider the evidence de novo, but will not reverse a trial court's findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767 (1996). Since the question of preponderance of the evidence turns largely on the credibility of the witnesses, we defer to the superior position

of the trial judge. Watts v. Watts, 17 Ark. App. 253, 707 S.W.2d 777 (1986). We know of no cases in which the superior position, ability, and opportunity of the trial judge to observe the parties carries as great a weight as those cases involving children. Id. A finding is clearly erroneous or clearly against the preponderance of the evidence when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Hollinger v. Hollinger, 65 Ark. App. 110, 986 S.W.2d 105 (1999).

In order for a trial court to make a change of custody, it must first determine that a material change in circumstances has transpired from the time of the divorce decree, then determine that a change in custody is in the best interest of the child.1 Riley v. Riley, 45 Ark. App. 165, 873 S.W.2d 564 (1994). In Jones, supra, our supreme court stated that courts generally impose more stringent standards for modifications than for initial determinations of custody and that, in Arkansas, child custody is determined by what is in the best interests of the child, and is not altered absent a material change in circumstances. The reasons for requiring more stringent standards for modifications than for initial custody determinations are to promote stability and continuity in the life of the child, and to discourage the repeated litigation of the same issues. Lloyd v. Butts, 343 Ark. 620, 37 S.W.3d 603 (2001). Regardless of whether the proceeding is an initial determination of custody or a petition for modification, the polestar remains the best interest and welfare of the child. Id.

In this case, the child expressed his desire to live with his father and indicated that he was having some difficulty adjusting to his new life in Texas. While these factors, along with the relocation of the primary custodian, could have been found to be a material change in circumstances, our deferential standard of review requires us to affirm the decision of the trial court absent a firm conviction that a mistake has been made.

The trial court noted that although both parents had stable marriages and could offer the child an excellent home, the child had been with his mother for almost twelve years and had been in a family unit with the stepfather for ten years. The court observed that the stepfather had taken care of the child and had been highly involved with the child's extracurricular activities. The court concluded that although the move had caused some disruption in the child's life, he would adjust and do well in Texas. Given the trial court's careful consideration of the relocation and its effect on the child, we cannot say we have a firm conviction that a mistake has been made. Accordingly, we affirm.

Affirmed.

Bird, J., agrees.

Robbins, J., concurs.

John B. Robbins, Judge, concurring. I concur with the majority's decision to affirm the trial court's conclusion that appellee's move from Little Rock to Dallas, Texas, did not constitute a material change in circumstances. I write separately, however, to point out that appellant never alleged that such move constituted the prerequisite material change in circumstances. While evidence of such move was introduced at trial, appellant's case for changing custody of his son from appellee to him, as stated in his petition and as espoused at trial, was that his son was expressing a preference to live with appellant. Notwithstanding the pleadings, proof, argument to the trial court, and remarks by the trial judge regarding the matter of the child's preference, the final order recites that "the [appellee's] move to Texas meets the test of appropriateness as set forth by the Arkansas Supreme Court and the move does not constitute a significant change of circumstances." The order expressed no ruling on whether the child's preference would constitute a material change in circumstances.

On appeal appellant argues that the trial court erred in failing to hold that the child's preference did not constitute the necessary material change in circumstances. Because appellant failed to obtain a ruling from the trial court on this issue it was not preserved for appeal. See Bell v. Bershears, 351 Ark. 260, 92 S.W.3d 32 (2002). For this reason I concur to affirm.

If the trial court had addressed this issue in its order and held that the child's preference under these circumstances did not constitute a material change of circumstances, I may well have disagreed. The matter of custody of this child was last before the trial court in 1994 when the child was five years of age. He was 13, less than a month short of his 14th birthday, when the trial court's most recent order was entered. He will be 15 years of age by the time our mandate issues. Surely, the preference of a child within this age range, while not conclusive on the issue, should at least constitute a sufficient change in circumstances as to open the door for a consideration of the child's best interest. See generally Hollinger v. Hollinger, 65 Ark. App. 110, 986 S.W.2d 105 (1999).

Even so, resolution of this question must await another day.

1 In Hollandsworth v. Knyzewski, Ark. , 109 S.W.3d 653 (June 5, 2003), decided after the disposition of the instant case, our supreme court held that relocation of a primary custodian and his or her children alone is not a material change in circumstance. The court also announced a presumption in favor of relocation for custodial parents with primary custody, stating that the noncustodial parent should have the burden to rebut the relocation presumption. In support of this position, the court observed that the custodial parent who bears the burden and responsibility for the child is entitled to seek a better life for herself or himself and the children, as enjoyed by the noncustodial parent.