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ARKANSAS COURT OF APPEALS DIVISION III No. CV-13-171

Opinion Delivered October 23, 2013 LYNDSEY UNRUH APPELLANT APPEAL FROM THE HOT SPRING COUNTY CIRCUIT COURT [NO. DR-2008-131-II] V. HONORABLE CHRIS E WILLIAMS, JUDGE JONATHAN GRIST APPELLEE AFFIRMED

JOHN MAUZY PITTMAN, Judge

This case involves custody of a child born to the parties in 2007. The child’s mother,

appellant Lindsey Unruh, appeals from an order granting a change of child custody to the

child’s father, appellee Jonathan Grist. For reversal, appellant argues that the trial court

clearly erred in finding that there was a material change in circumstances warranting a change

of custody; in finding that the change of custody was in the child’s best interest; and in

finding facts that were contrary to the evidence. We affirm.

Appellant was awarded custody of the child pursuant to an agreed order entered on

July 17, 2008, and appellee was granted visitation and ordered to pay child support. Appellee

filed a motion for change of custody in May 2012 asserting, inter alia, that appellant had

become unstable to the point where her continued custody of the child would be

detrimental to the child’s physical health and mental well-being. Appellant filed an answer

constituting a general denial of grounds for a change of custody, accompanied by a Cite as

counterclaim for permission to move with the child to Mississippi. After a hearing, the trial

court granted appellee’s motion for a change of custody, and this appeal followed.

The primary consideration in child-custody cases is the welfare and best interest of the

children; all other considerations are secondary. Madden v. Madden,

, ___

S.W.3d ___. A judicial award of custody should not be modified unless it is shown that

there are changed conditions that demonstrate that a modification is in the best interest of

the child, or when there is a showing of facts affecting the best interest of the child that either

were not presented to the trial court or were not known by the trial court at the time that

the prior custody order was entered.

Where the trial court fails to make specific findings

regarding a material change of circumstances and no special findings are requested, we are

permitted on de novo review to conclude that there was evidence from which the trial court

could have found such changed circumstances. Woods v. Woods,

; Chaffin

v. Chaffin,

; Erickson v. Erickson,

. Generally, courts

impose more stringent standards for modifications of custody than they do for initial

determinations of custody.

The reasons for requiring these 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.

When a case involving the custody of children is presented to us on appeal, we

recognize the superior position, ability, and opportunity of the trial court to observe the

parties, and we therefore give special deference to the trial court’s assessment of the

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credibility of the witnesses. Davis v. Davis,

. We review the evidence

de novo on appeal, but de novo review does not mean that the findings of fact of the circuit

judge are dismissed out of hand and that the appellate court becomes the surrogate trial

judge. Thus, we will not reverse the findings of the court unless it is shown that they are

clearly contrary to the preponderance of the evidence.

A finding is 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.

The record shows that appellant was employable, but unemployed, and that she had

moved at least five times since the entry of the 2008 order. Those moves included one

instance where she was permitted to move into the home of appellee and his new wife

because she had nowhere else to go, and another period where she alternated between living

with her parents and living in Mississippi. There was evidence that, if found to be credible,

would support a finding that appellant frequently left the child in the care of her parents,

who were given to binging on controlled substances and who had on occasion returned the

child to appellee with feces in her panties. A matter of significant concern is a repeated

pattern of appellant’s disrupting appellee’s relationship with the child by refusing visitation,

taking the child from appellee at times when he was exercising visitation, and not permitting

appellee access to the child’s school. There was also a great deal of evidence that appellant

had a number of chaotic relationships with various men that were characterized by breakups

and reunions such that she was unsure which of these men was the father of her second child.

In contrast, the record shows that appellee is married, has shown measured restraint in the

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face of appellant’s provocations, and has maintained both a stable marital relationship and

steady employment. Instability of the type manifested by appellant was found to constitute

a material change of circumstances in Davis, supra, and on this record we cannot say that the

trial court clearly erred in finding a change in circumstances or that a change of custody to

appellee was in the child’s best interest.

Affirmed.

GLADWIN, C.J., and WOOD, J., agree.

The Graham Law Firm, by: James Lucas Graham, for appellant.

Andrew Clark, for appellee.

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