*1 Reversed remanded. Griffen,

Bird and JJ., agree. Robin Denise DANSBY v. Lathaire Wilfred DANSBY CA 03-741 189 S.W.3d 473

Court of of Arkansas Appeals I and

Divisions IV 30, 2004 delivered Opinion June denied 25, 2004.*] [Rehearing August Baker,JJ., grant rehearing. * PITTMANand would *3 L.L.P., Dodson, Dodson, & Richard N. Dodson by: appellant. Winona Griffen, appellee.

John B. Robin Dansby Robbins, Judge. appeals Appellant order entered the Miller Circuit Court the by County judge and that between Robin Lathaire joint custody changed appellee to full over their Lathaire’s cus- daughter Dansby younger Krysten in married in 1984 and had bom Lynzi Dansby1, tody. parties 1985, and bom in divorced at the end of 1997. Dansby, They Krysten 1999, 1999, the until order was entered July though September months, but live in the same household for another continued to eight of Lathaire the father of an 2000. finally separating spring twenties, two bom older son in his of his marriage daughters Robin, and a son conceived the The decree during parties’ marriage. the would of and have Lynzi contemplated parties joint custody that as the The decree concerned Krysten. specified Krysten, eighteen in 2003. Her is not at issue. turned custody/visitation 1 Lynzi early 160

would alternate one-week of from periods custody, Friday evening three On occasions to the Friday motion evening. leading up Robin filed motions for for Lathaire’s change custody, contempt child in failure to full to each of support. pay paid subsequent these filings. In the the last of three filed response motions contempt

Robin, 27, 2002, on November Lathaire moved contempt Robin’s failure to allow his him decreed and moved joint-custody based a in circumstances. The change custody change upon 2003, cause heard in and the entered an order January judge but the motion the denying and contempt granting change Robin visitation. This allowing resulted. appeal the assert- Appellant challenges judge’s findings, were in ing erroneous two in they clearly (1) respects: had a there been material substantial concluding change circumstances, (2) Robin’s visitation to alternate limiting weekends, alternate Wednesdays, holidays, one month the summer. affirm. We

The standard of review appellate governing custody cases, modifications is well settled. In the child-custody primary involved; consideration is the welfare and best interests of the child all Dixon, other considerations are Eaton v. Ark. 69 secondary. 9, 9 535 will S.W.3d not be App. (2000). modified unless Custody isit shown that there are changed conditions that a demonstrating modification is Vo, in the best interest of the child. 78 Ark. Vo 134, 79 S.W.3d 388 App. (2002). cases child involving matters, novo, and related we de review case but we will not reverse trial in this judge’s regard unless are clearly 138, erroneous. Deluca v. 79 Ark. 84 Stapleton, S.W.3d 892 App. when, A is (2002). erroneous finding clearly there is although it, evidence to court is left with the definite reviewing Parker, and firm conviction that a mistake has been made. Smith v. 67 Ark. S.W.2d (1999). Because question whether the trial are court’s findings erroneous turns clearly largely witnesses, credibility deference to the give special witnesses, of the trial to evaluate the superior position their Ford, and the child’s best interest. Fordv. testimony, S.W.3d 432 *5 at evidence included the hearing Lathaire, who testified that Robin let him have his basically when Robin was her shift younger daughter only at working night each one-half of this still parent although permitted hospital, that time. was concerned Robin drinking, Lathaire Krysten’s with and Krysten boyfriends night smoking, having spend had criminal that some of Robin’s Lathaire said boyfriends present. at was witness violence Robin’s that Krysten histories addition, to Robin In Lathaire Krysten house. objected putting men. white a biracial situation by dating contrast, he a three-bedroom Lathaire said that lived in son, his his daughter

house with older seventeen-year-old Lynzi, he his son from Lathaire said also saw and Krysten. twelve-year-old least or twice a month and at once another relationship paid confirmed that he had brothers and him. Lathaire many support sisters immediate when area to care he was Krysten help or he had at the as a car when to work at work salesman family business, was a local bar or tavern. which apparently main concern was that even Robin

Lathaire’s though always smoked, drank, he monitor and had could not Robin’s boyfriends, that behavior after Lathaire her smok- they separated. complained asthma, not was detrimental to and he could Krysten’s ing prevent her drunk in front of their or her being daughter, boy- having friends stay overnight. that did

Lathaire his older not have daughter Lynzi explained her a with mother Robin because Robin berated her relationship did that Lathaire Lynzi get along. acknowledged abortion, not a child. had an but was perfect Lynzi undergone on had been birth control. from school Lynzi currently suspended after a in which she was not the but once fight aggressor, original otherwise, she awas student. fairly good arrested

Lathaire admitted he was once while driving from back that the a caravan a Razorback home and children game him, he were with but he did not understand the explained over, wreck, to be his he a minor he car had trying pull police went to station, he and waited with his children a bench that he had fallen until bail. Lathaire also confessed behind posting time, in child from time to but he that he had the thought so his to do when Robin denied court-ordered visitation. He right now. said he had understood Lathaire have differently yet visitor he was female over bothered Krysten’s presence, what he characterized as Robin’s door boyfriends. revolving also had out at a said his kept daughter her bedtime on a school and Robin was restaurant night, past drinking. *6 school, testified that she a senior in that was she

Lynzi high mother, had no her her did that mother with relationship even aher or Christmas testified that she give birthday gift. Lynzi observed hef mother drunk and smoke in front of Krysten, get well as have while boyfriends spend night Krysten present. said that her said Lynzi mother about her father derogatory things and his said that her mother was family. Lynzi currently dating white man. found her mom’s Lynzi house reportedly marijuana but did not tell her about it. care for to her little sister Lynzi helped when her father had to and she be assisted her away, transporting sister back and forth between houses. wanted her little sister Lynzi live her with at their father’s house.

Robin testified that she and Lathaire never had abided but decree that had it such original that each they arranged they fact, had about half time. Krysten continued to live for months until Robin moved of together out the marital home. Thereafter, said she he had no with 4-3 problem having day splits week each to accommodate her during work schedule at the - said had Robin she worked hospital. shift (7 graveyard p.m. a.m.) for about twelve and she said her mother with years, helped when work Krysten her from at home on those being prevented occasions when Lathaire insisted the full-week exchanges. on, that she Robin would back to the agreed seven go seven days off schedule if that was days what Lathaire wanted. Robin agreed that Lathaire was a that father and good loved her dad and Krysten However, time with him. Robin believed that spent she had more time to with her and she saw no reason to spend daughter, depart from their it that so would practice past arranging Krysten be never have to with a sitter. theAt time on this hearing matter, was five old. Krysten years Robin that out she had to court pointed seek intervention three times her child but get Lathaire would support, pay prior morals, court. As Robin reminded the court coming that a woman with his now impregnated son twelve-year-old he and Robin were still married. Robin also out that pointed that, she was not racist like Lathaire and he concerning Lynzi, too lenient and did not led which to the discord discipline Lynzi, between and her mother. Robin said acts Lynzi specific untrue, testified about were Lynzi and furthermore that Lynzi never time with Robin so that would spent any have no Lynzi way what went on in her household. Robin knowing feared that later Lynzi befall the same behavioral problems would Krysten mother. her father her had working against already experienced by one of have a with testified that did not problem she *7 aunt because even though Lathaire’s sisters for caring Krysten was had a she to Krysten. had good drug problem, apparently had a who had a formerly Robin said that she friend drug problem, better, to Lathaire’s and was similar but she underwent treatment house was denied in the when Krysten sister. Robin smoking there, in front said denied drunk of her. Robin and she ever being once, a male visitor but it was that did have only she overnight a and it was unsafe to leave. Robin because there was winter storm him behavior with while denied Krysten any inappropriate have at Red that she did out there. Robin Krysten explained bedtime; admitted to on one occasion after her Robin Lobster However, this was a one Robin said that margarita. having one-time occurrence. that Lathaire’s older son testified Dansby, age twenty, Jason

he and father. he was in with his said college living helped Jason there, father take care of when she was until their got Krysten at home from work around 7:00 said that only family p.m. Jason to care their at work. members when father was helped Krysten mother she knew Lathaire Robin’s testified that Robin and divorce, their own since accom- had made schedule work Robin’s schedule. Robin’s mother acknowledged modating once, did back to schedule at and she that the ordered least they go her had to assist in worked. keeping Krysten daughter However, she said that and Lathaire back to the went right and that never her about altered schedule Lathaire complained it. that she talked on the She testified to Lathaire occasionally about children and that remained cordial. they phone submitted their respective findings proposed fact at the end of the case and thereafter the its court filed fifty-six of fact about it believed to be true what in findings testimony. true, about Robin believed everything Apparently, negative and about Lathaire was believed true. The everything positive smoked, drank, acts most bad found were that Robin egregious cursed, cohabited and with boyfriends presence Krysten. He Lathaire a and found that moral greater example provided a more secure and structured life than Robin. provided Krysten He that Robin had allowed a known user in found Krysten’s drug that a in domestic and Robin and boyfriend presence engaged of the violence front children. The noted his judge findings that Robin stated she no with has problems Dansby that he He father said is a father. found that had good fault, not followed the ordered visitation due to Robin’s occurred, material had and that best interest changes Krysten’s would be to be father’s her Robin was placed custody. granted alternate every-other-weekend, every holiday, Wednesday, one-month summer visitation. This followed. appeal we

Before consider in our de points appeal review, novo must first make clear that one of the fifty-six of fact was an findings consideration. The trial impermissible stated in number “a black finding thirty-nine appellant, woman, dates white men.” No was raised to the objection time; on this issue at nor did any appellant object when was it finding counsel or when the proposed by appellee’s court it included in its of fact conclusions law *8 21, 2003, filed on March some twelve before final the order days was entered. do not We consider an on issue even of appeal, concern, constitutional that has not been first to the raised 623, 184 S.W.3d court for resolution. Daniels, SeeGwin v. Ark. 357 28 v. 47 (2004); S.W.3d 333 Taylor Taylor, (2001); Aaron, v. Ark. 185 142 S.W.3d This case Tipton Aaron, is similar to the decided v. wherein the recently Tipton supra, were the of whether parties of a child litigating question custody should be was elicited from changed, both parties the child of the concerning impact in an interracial remaining household with his mother. No was raised at time objection to any that line of and we held that the issue was not inquiry, preserved Likewise, for our review. both shared present appeal, their views about Robin’s choice to date personal men another race, court, no was raised until objection our and we appeal hold that this issue as not again preserved consider appellate ation. In to the assertion that the response dissenting issue judges’ Robin, Lathaire,

of race was first advanced we as the disagree. testified first made moving clear that he party, to his objected biracial to a raised daughter being exposed no situation. testified, When Robin she that objection. Lathaire acknowledged men, did not like the fact that she dated white claimed she that did father, not teach affirmed was a prejudice, good the asked court to leave intact the At joint-custody arrangement. that it wrong her claim was legally did she or counsel no time aas basis for changing about biracial dating advance concerns custody.

Nevertheless, to state we take opportunity in Palmore clear abundantly United Court made States Supreme Protection Sidoti, it violates U.S. 429 (1984), Equal into a decision. to factor race custody Clause of the Constitution Palmóte, which was changed In the soleconsideration upon race, mother, the father a man of another from who married would be in an interracial household was that the child remaining Chief detrimental to the child. The Palmóte written by opinion, raised federal noted that the appeal important Burger, Justice from the commitment to eradicat concerns Constitution’s arising and that com based race the Court was discrimination ing upon on reverse the made decision change custody pelled racial considerations.

Even no raised to though objection inappro do not our de novo number we find on priate finding thirty-nine, it it neither review that is inasmuch as any consequence weakens the best interest nor either strengthens party’sposition Therefore, child. de review the minor our novo proceed to examine the of fact to determine remaining fifty-five findings oc whether conclusion that material changes that it was in best interest Lathaire to be curred and Krysten’s We hold that those granted custody. findings support decision, court’s and we affirm. whether a is determining change

warranted, the trial must first decide there has been whether *9 a material in since the recent circumstances most change custody Remick, 390, order. v. 75 Ark. 58 422 (2001). Word S.W.3d App. of such a is on the the burden proving change party seeking 253, Watts, v. Ark. 111 modification. Watts 17 707 S.W.2d App. modifiable, While is in order (1986). custody always promote for the children and stability continuity discourage repeated issues, of the same our courts a more litigation require rigid standard for modification than for initial determi custody custody Vo, v. nations. Vo supra. minor or divided of custody equally Joint in v. Ark.

children not favored Arkansas. 63 is Thompson Thompson, statute, 89, 974 The relevant Ark. Code (1998). S.W.2d App. Ann. was in amended 2003 to 9-13-101(b)(l)(A)(ii), specifically § However, the court consider the award of permit joint custody. the mutual of the in ability shared reaching parties cooperate decisions in matters the child’s welfare is a crucial factor affecting Hansen, on the of SeeHansen bearing v. joint custody. propriety Ark. 666 S.W.2d 726 When the have App. parties fallen into discord are such unable to in they cooperate sharing children, the care of the this a constitutes material physical change in circumstances the children’s best'interest. Word v. affecting Remick, Moreover, our courts have never condoned a supra. conduct or when conducted in the parent’s promiscuous lifestyle of the child. v. 968 S.W.2d presence Hepp Hepp, 62 (1998). standard of review to the

Applying proper Here, order on we affirm. in circumstances was appeal, change child, that Robin’s bad acts were of the happening presence where were hidden before the divorce. they To her presumably detriment, the believed the that Robin had judge testimony men in the house at least once children were overnight was found in Robin’s marijuana house present; by Lynzi; Lathaire of spoke children’s disparagingly presence; that Robin child; was drunk and smoked front of the asthmatic and that while the able to were work out the parties schedule most time, of the time to each other of give one-half Krysten’s were in now. The disagreement judge apparently persuaded Lathaire’s child when by explanations he paying frustrated, and for his arrest the children’s We presence. must defer to the calls made More credibility by judge. over, should joint stand where the are very Remick, See review, Word Given the agreeable. standard supra. affirm we from change joint custody Krysten full having custody. this, to the contrast we do not see after dissenting judges, made, determinations were to be a

credibility “close case.” If we sat as the finders of fact have also credibility, might However, determined to be a close case. de novo review whole, that we examine the record as a but it does not requires allow us to .what change was believed true untrue or fact, found the trial With the extensive judge. clearly that the believed Lathaire to be better demonstrating *10 Robin, arewe moral, stable, than and Krysten parent proper that a mistake was and firm conviction with a definite not left committed. that if the asserts change

Robin’s second point appeal affirmed, error in reversible is the trial court committed of custody review with We We her limited visitation Krysten. disagree. granting the trial court’s and reverse when as this de novo cases such are erroneous. Hollandsworth Knyzewski, clearly when, 470, erroneous A is clearly 109 S.W.3d finding it, we have the definite and the existence of evidence supporting despite entire evidence that a mistake was firm conviction based on the a definite and firm convic Id. We are not left with such committed. tion in this case. her brief that she should be “the

Robin states in given had for four She is in error. same visitation that Mr. Dansby years.” and the trial court’s order The had changed joint custody, parties it was incumbent this to full in Lathaire. custody Consequently, the non to set visitation for upon appropriate set visitation custodial Robin. The order parent, changing weekend, other and “the Standard Wednesday, every every and all other Visitation schedule holidays general concerning schedule is attached as Standard Visitation which provisions Exhibit ‘A’ in to all other visitation.” Standard visitation regard the summer. and alternating holidays thirty days during provided has not demonstrated clear error where she was granted with the trial visitation judge’s conformity typical practice non-custodial parents. concerning

Affirmed.

Stroud, Bird, Crabtree, C.J., JJ., agree. dissent. Baker, JJ.,

Pittman John MauzyPittman, to this Judge, dissenting. parties case were divorced on 1999. child-custody September decree, the divorce were awarded Pursuant joint parties in 1997. The of their who was born daughter, Krysten, was to decree further physical custody Krysten provided week, alternate between the other every appellee week. In $130.00 child amount Septem- per pay decree and filed a motion for enforcement of the ber appellant

168 $3,700.00. of This was contempt seeking child-support arrearage the third time that was forced to resort to the court to obtain appellant the had been ordered to for the benefit of his support appellee pay child. answered with a afor modification of Appellee request custody. After a the trial entered an order full hearing, judge awarding to This followed. appellee. appeal that the trial court erred in his

Appellant argues basing of material of circumstance and best interest on the change woman, fact that a black has dated white men since appellant, divorce, the the child to what who is thereby exposing appellee, black, also characterized aas harmful “biracial situation.” The that the trial court did base its order on majority, conceding law, this factor and that this was to the does not address contrary issue, the that it was not holding because preserved appeal did dicta, below. The appellant object also majority opines, that the error was of no event. I consequence any disagree, I dissent. errs in that the issue majority was not holding preserved First, because appeal. cases are reviewed de appeals equity novo, there is no requirement contemporaneous objections conclusions, and decree of the findings, court to obtain review Abraham, 66, v. 341 Ark. 15 appeal. S.W.3d 310 (2000); Jones Morrow, 31, v. Morrow 270 Ark. 603 S.W.2d 431 Ark. (1980); R. Indeed, Civ. P. 46. even had the announced his judge erroneous of the law in court application before the open courtroom, had left the no would be objection required this issue for Abraham, See v. preserve appeal. supra; compare Jones Abraham, 304, 312, v. 67 Ark 999 S.W.2d 703 App. Jones Second, (1999). it is true as a rule that a although general party must at trial in order to an object issue for an preserve appeal, arises when the error is made exception himself by judge at a time when defense counsel has no of the error and knowledge hence State, no Wicksv. opportunity 270 Ark. object. 606 S.W.2d 366 That is what occurred in the precisely present case. The evidence views regarding appellee’s regarding racially- mixed and households was couples first elicited not by appel- lee, but rather appellant purpose showing herselffor biasedand that this bias was harmful appellee racially to the child.1 object There was no occasion for regarding what appellant appellee’s testimony he characterized as a “biracial situation.” it was Granted, who first testified that he appellee In the there can be no doubt. is a That this purpose proper Aaron, 1, case recently-decided Tipton review, court, cited a on de novo S.W.3d 142 (2004), very the other interracial lack of tolerance toward parent’s parent’s reversal of a trial court’s award of as a factor household warranting child in the of the whose so asto parent custody, place racial tolerance. Appellant child-rearing philosophy promoted turn had no reason to that the trial would simply anticipate *12 head and view the evidence of the law on its bigotry appellee’s until the trial final order a factor favorable to judge’s appellee he had done so.2 demonstrated that objected dating was not However, to his ex-wife white men. this testimony prompted by direct examination, asked own but was instead by attorney directly questions appellee’s to a asked on cross-examination. This responsive question by appellant’sattorney question designed bigoted, to that to show that clearly appellee racially appellee’s testimony effect was See v. Ark. State, 249, “elicited” Turner incontestably by appellant. App. (1997). 956 S.W.2d 870, 873 majority the in the states that the this case is “similar to Oddly, preservation question objection decided v.Aaron!’ Insofar as the of an is to draw the trial recently Tipton purpose

judge’s imagine attention to an asserted it is difficult to dissimilar error, more circumstances. case, In the as discussed there was no reason for present supra, appellant suppose intolerance, evidence of racial elicited for the by appellee’s appellant’s attorney manifestly showing of a lack of fitness on would be viewed the trial proper purpose appellee’s part, by judge factor as a favorable to The error did not become until the appellee. apparent proceeding judge’s had concluded and the trial error was demonstrated for the first time in his findings of fact. In the in contrast, Aaron, v. 185 S.W.3d142 Tipton (2004), in showing was elicited the that case not for the of that a by appellee proper purpose bigotry child, custodian’s was detrimental to the but instead prospective solely directly demonstrating the of that a child reared in an interracial manifesdy improper purpose family biases, would be harmed which is what the United States Court precisely private Supreme ago (1984). in forbade Palmore v. 466 U.S. 429 The error was so Sidoti, expressly twenty years in u Aaron, himself raised the of the plain Tipton supra, question propriety considering objection. of circumstance, in that case still raised no It is an yet appellant understatement that that is not the situation before us case. say present majority Oddest of is that the strains a all, to discern between this case perhaps, parallel ignoring striking v.Aaron on the issue of Tipton preservation, simultaneously of the facts with to the merits. with evidence Confronted of father’s similarity respect racial intolerance in that evidence Aaron, used the reversal of an award Tipton — of to that father and did so the fact that the issue been had, effect, custody despite object waived at trial. In the case, trial, where there was no reason to at expressly present majority ignores the of the father’s racial intolerance and states that it is of “no question strengthens because “it neither nor either weakens on the best consequence” party’s position — interest of the minor child.” The issue in both cases is identical whether the father’s

There is no that the trial erred court question considering of another race as factor in appellant’s dating persons awarding The on the child from in a appellee. remaining impact household is not a consideration in deter- racially-mixed proper minations of child The United States Court custody. Supreme Sidoti, a similar addressed situation Palmore v. 466 U.S. 429 Court, Chief for the said that: Burger, writing Justice

It would that racial and ethnic ignore reality suggest preju- dices do not exist or that all of manifestations those have prejudices been eliminated. There ais risk that a child with a living stepparent of a different race be to a may subject variety and stresses pressures if the child were with of the same racial or present living parents ethnic origin. however, is whether the question, biases reality private

and the inflict are possible injury they might consider- permissible ations for removal of an infant child from the of its natural mother. We little have are difficulty concluding not. The Constitution cannot control such but neither can it prejudices law, tolerate them. Private biases be outside the reach may *13 cannot, but the law or directly them effect. “Public indirectly, give officialssworn to the Constitution not avoid a consti- uphold may tutional to the duty by effects of bowing hypothetical racial private assume to be both prejudice widely held.” deeply Id. at 433 citations (internal omitted).

Nor do I with the agree that this error majority’s suggestion was harmless. This was a close case. there was evidence Although behavior has not at all times been appellant’s exemplary, that evidence is the established and weighing undeniable against fact that has three times to resort to the appellee required appellant court to obtain the child had been ordered to appellee was, addition, intolerance, There racial which pay. appellee’s the trial court not failed to him but instead weigh against me, viewed with is approbation. Particularly poignant, appel- that, lee’s own the interracial upon encountering couple restaurant, her in a his elder appellant boyfriend daughter mortified, kid knows no Krysten “being five-year-old — child-rearing racial tolerance and I submit that it cannot philosophy promotes respectfully grounds changing be one case of no whatsoever in the next. custody consequence this, different.” One cannot but to reflect that help, .upon reading the elder has learned the and divisive daughter already painful lesson of racial that the child whose is here at issue bigotry custody has to be yet taught. were Although favorable judge’s findings generally and unfavorable to appellee there is no appellant, way determine, record, on this how much his erroneous view of the or, indeed,

law influenced his decision the other set out in his order. I do not think that we should that the trial presume court’s error is indicative of bias on its but neither do I think part, that we should summarily to raise deny appellant opportunity that issue should situations, she desire to do so. In similar where the trial court has erred as a matter of law in awarding custody, have reversed and remanded to allow such further proceedings be to determine the might necessary to be question conducted Torres, in the trial court. See Walkerv. 83 Ark. App. 118 S.W.3d 148 I (2003). believe that we should do likewise in the

case at bar.

I dissent. respectfully Karen R. case, Judge, dissenting. Baker, court ordered a child removed from the of its mother, racial specifically bias as one listing reason for the custody determination. That reason alone renders the ordr inherently suspect, and that fact alone demands reversal. To do otherwise not only tolerates, to, but racial gives bias which the law can neither tolerate nor Sidoti, allow. SeePalmorev. Aaron, U.S. (1984); Tipton 185 S.W.3d 142

Therefore, I dissent.