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                  ARKANSAS COURT OF APPEALS
                                        DIVISION IV
                                        No. CV-16-651



                                                  Opinion Delivered: March   15, 2017
JEREMY SHANE FUDGE
                                           APPEAL FROM THE UNION
                                 APPELLANT COUNTY CIRCUIT COURT
                                           [NO. 70DR-12-330]

V.                                                HONORABLE DAVID F. GUTHRIE,
                                                  JUDGE
WHITTNEY LYNELL DORMAN
                     APPELLEE REVERSED AND REMANDED


                                  MIKE MURPHY, Judge

        Appellant Jeremy Shane Fudge appeals from the order of the Union County Circuit

 Court changing custody of his three minor children to the children’s mother, appellee

 Whittney Lynell Dorman. Fudge argues that the circuit court erred in finding changed

 circumstances and that a transfer of custody to Dorman was not in the children’s best interest.

 We agree that there was no material change in circumstances sufficient to warrant

 modification of custody and therefore reverse and remand.

        The parties divorced in 2010, and Dorman initially had custody of the children until

 2011 when she voluntarily relinquished custody to Fudge. In 2013, Dorman petitioned the

 court for custody of the three children, and on December 3, 2013, the circuit court entered

 an agreed order whereby Fudge continued to have primary physical custody. On January 6,

 2016, Dorman filed a motion to change custody on both a temporary and a final basis citing

 a material change of circumstances. For her emergency motion, she alleged that the children
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were in jeopardy while in the care and custody of Fudge because of a drunken incident that

occurred between Fudge and his current wife at the Liberty Bowl in Memphis, Tennessee,

a few days before. The court granted the ex parte motion but denied the temporary change

of custody two days later, holding that the events that occurred at the Liberty Bowl were

insufficient to cause a change in the custody arrangement because “[t]he differences between

[Fudge] and his [current wife] which caused [Dorman] to file her request for ex-parte

emergency custody did not occur in the presence of the children.” While the circuit court

ruled that there was no emergency and denied that part of the motion, on April 12, 2016,

the circuit court entered an order addressing the remaining part of the motion and changed

custody to Dorman. Fudge filed a timely notice of appeal. 1

       In reviewing child-custody cases, we consider the evidence de novo but will not

reverse a circuit court’s findings unless they are clearly erroneous or clearly against the

preponderance of the evidence. Riddick v. Harris, 2016 Ark. App. 426, at 4, 501 S.W.3d

859, 864. Deference to the circuit court is even greater in cases involving child custody, as

a heavier burden is placed on the circuit court to utilize to the fullest extent its powers of

perception in evaluating the witnesses, their testimony, and the best interest of the children.

Alphin v. Alphin, 364 Ark. 332, 336, 219 S.W.3d 160, 162 (2005). If the circuit court fails

to make findings of fact about a change in circumstances, this court, under its de novo

review, may nonetheless conclude that there was sufficient evidence from which the circuit

court could have found a change in circumstances. Williams v. Geren, 2015 Ark. App. 197,

at 10, 458 S.W.3d 759, 766.


       1
           This is a one-brief case; Mrs. Dorman has not filed a brief.

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       Arkansas law is well settled that the primary consideration in child-custody cases is

the welfare and best interest of the children; all other considerations are secondary. Rice v.

Rice, 2016 Ark. App. 575, at 4–5, __ S.W.3d __, __. A judicial award of custody will not

be modified unless it is shown that there are changed conditions that demonstrate that a

modification of the decree will be in the best interest of the child. Id. Generally, courts

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

determinations of custody. Id. 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 repeated litigation of the same issues. Id. In order

to change custody, the circuit court must first determine that a material change in

circumstances has occurred since the last order of custody; the party seeking modification

has the burden of showing a material change in circumstances. Id.            If that threshold

requirement is met, the circuit court must then determine who should have custody, with

the sole consideration being the best interest of the children. Williams, 2015 Ark. App. 197,

at 10, 458 S.W.3d at 766. Determining whether there has been a change of circumstances

requires a full consideration of the circumstances that existed when the last custody order

was entered in comparison to the circumstances at the time the change of custody is

considered. Id.

       In its order dated April 12, 2016, the circuit court stated,

       In making its decision, this Court is not suggesting that either party is not capable or
       competent to take care of the children, but the Court finds that in 2013 custody
       changed to Jeremy Shane Fudge as a result of Whittney Lynnell Fudge (now
       Dorman) doing what she thought was in the best interest of the children given her
       circumstances in life at that time. Since that occasion, the circumstances that
       motivated Whittney Lynnell Fudge (now Dorman) to place the parties’ minor

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       children with Jeremy Shane Fudge have changed for the positive. She is now capable
       of taking care of the children, she has settled her affairs that caused her to ask Jeremy
       Shane Fudge to take the children in 2013. 2

The circuit court also explained from the bench,

       [This decision] is not clearly an adverse reflection on [Fudge] and his care of the
       children during the interim; it appears that both parties are capable, competent and
       loving parent [sic] and seek only the best for their children. The concern is that only
       one can have custody and [Dorman] gave up custody years back for the best interest
       of the children and it is only appropriate that she [sic] now that she has settled her
       affairs, financial affairs, work affairs, emotional affairs and any family affairs and is now
       more capable of taking care of the children in question.

Notably, the circuit court failed to address the full consideration of circumstances that

existed when the last custody order was entered compared to the present situation.

Furthermore, the circuit court failed to make specific findings that a material change in

circumstances had occurred since that order. Arkansas caselaw is well settled that a change

of the circumstances of the noncustodial parent is not alone sufficient to justify a change of

custody. See Wiliams, supra; Middleton v. Middleton, 83 Ark. App. 7, 15, 113 S.W.3d 625,

629 (2003). The circuit court made a general finding that a change in circumstances had

occurred, and then it failed to make specific findings regarding the best interest of the

children. See Williams, supra (holding that we defer to a circuit court’s credibility

determinations, but those determinations must relate to testimony regarding material facts

in order to support a finding of changed circumstances).

       Moreover, the record does not support the circuit court’s findings that Dorman has

her affairs in order. Testimony revealed that Dorman owes $10,000 in back child support,



       2
         Custody changed to Fudge in 2011, not 2013; this reference appears to be a
scrivener’s error.

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she is behind on her car payment, and she has been out of a job for two months. Per

testimony, she does have a job lined up, but it will require her to work overnight, leaving

Dorman’s husband of a year and a half—who has spent minimal time with the children and

is away from home for work three to four months at a time—to be the primary caregiver

while she is gone. Dorman’s aunt, who has multiple felony convictions related to

methamphetamine, agreed to be a secondary caregiver if Dorman’s husband is unavailable.

The circuit court is putting the interests of Dorman before the best interest of the children.

       Overall, the circuit court’s findings did not, on their own, constitute a material

change in circumstances sufficient to warrant modification. Based on our holding, any

inquiry into the best interest of the children is not necessary. Therefore, we reverse and

remand for further proceedings consistent with our opinion.

       Reversed and Remanded.

       GLADWIN and HARRISON, JJ., agree.


     Stone & Sawyer, PLLC, by: R. Jeffrey Sawyer; and McDonald Law Firm, by: Gary
McDonald, for appellant.

       No response.




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