                                   Cite as 2017 Ark. App. 518


                    ARKANSAS COURT OF APPEALS
                                          DIVISION III
                                         No. CV-16-1115



                                                   Opinion Delivered: October   4, 2017

KRISTINA BONDS                              APPEAL FROM THE POPE COUNTY
                                  APPELLANT CIRCUIT COURT
                                            [NO. 58DR-14-381]
V.

CLAY BONDS
                                     APPELLEE HONORABLE GORDON W. “MACK”
                                              MCCAIN, JR., JUDGE


                                                   REVERSED

                                 WAYMOND M. BROWN, Judge


        Appellant Kristina Bonds appeals the Pope County Circuit Court’s order modifying

 custody of her two minor children, P.B. and T.B. The court removed the children from

 Kristina’s custody and placed them in the custody of their father, appellee Clay Bonds.

 Appellant argues that the trial court erred in finding a material change in circumstances and

 in determining that it was in the children’s best interest to transfer custody. We agree that

 there was no material change in circumstances sufficient to warrant a modification of custody

 and therefore we reverse.

        The parties were married in May 2014. 1 Appellee filed for divorce in June 2014

 alleging general indignities. A nunc pro tunc agreed divorce decree was granted in October


        1
            The birth of the children predated the marriage.
                                   Cite as 2017 Ark. App. 518

2015 and filed of record on November 3, 2015. The agreed decree awarded sole legal

custody of the children to appellant. Appellee was granted liberal visitation with the

children. The decree provided that “[n]either parent shall have any overnight visitors with

whom they are romantically involved when the children are present.” Appellee was ordered

to pay child support at the rate of $133 a week. However, the court allowed him to pay

$25 a week until his house was sold, or for eighteen months, whichever came first because

he was experiencing “cash flow issues while his home [was] being sold.”

       Appellee filed a petition for emergency change of custody, permanent change of

custody, contempt and other matters, along with exhibits, on April 26, 2016, alleging a

number of material changes in circumstances, including: (1) the children have appeared

before with bruises on their faces which they alleged were caused by Barron Shaw’s 2

children; (2) Shaw, who is of questionable integrity and morality, lives with appellant and

the children and keeps the children while appellant works; (3) Shaw has argued with appellee

by text regarding appellee’s decision-making when it comes to appellee’s children and has

indicated, with appellant, to one of the children that it is appellee’s fault that the child does

not get to participate in anything; (4) Shaw has posted a number of vulgar and distasteful

posts on Facebook, which appellant has “liked”; (5) appellant has refused appellee extra time

with the children to make up for time lost due to various activities of the children; and (6)

appellant has purposely withheld her work schedule from appellee with no explanation as




       2
           Shaw is appellant’s boyfriend.




                                               2
                                  Cite as 2017 Ark. App. 518

to who keeps the children overnight while she is at work. He also alleged several changes

in circumstances which he considered contemptuous, including: (1) appellant has withheld

information regarding educational services provided to one of the children and is the only

parent listed; (2) appellant failed to notify him of a parent-teacher conference and a field trip

in a timely manner; (3) appellant withheld information concerning “Donuts for Dads Day”

and Shaw attended the event with the minor child; (4) appellant has enrolled the children

in various activities without discussing it with appellee and becomes “combative” when

appellee asks for any information regarding the activities and refuses to cooperate with

appellee concerning these issues; (5) in spring 2016, appellant sent a folder to appellee

through one of the children, and the child was “nearly obsessed with making sure that

[appellee] signed the folder”; and (6) T.B. has appeared for visitation with untreated head

lice, as well as 75 bug bites on his leg. Appellant filed a response on May 4, denying the

material allegations in the petition and stating that the petition should be dismissed for failure

to state facts upon which relief can be granted. Appellant included exhibits, including text

messages between the parties indicating that appellee was aware that Shaw was keeping the

children as early as September 2015.          She also included a statement from Shaw’s

grandmother saying that Shaw resided with her.

       The court entered an ex parte order on April 27, 2016, granting appellee’s petition

for emergency custody. The court entered an order extending the ex parte order until May

12, 2016. Another order was entered on June 9, 2016, finding that the ex parte order be

continued based on the appearance that appellant is in a romantic relationship with Shaw

and that it appears that Shaw has stayed overnight with appellant while the children were


                                                3
                                Cite as 2017 Ark. App. 518

present. The court ordered that Shaw submit to the jurisdiction of the court and that

appellant take reasonable steps and actions to avoid the appearance of Shaw staying overnight

in the presence of the children. Shaw subsequently submitted to the court’s jurisdiction.

       The court held a custody hearing on July 26, 2016. An order was entered on August

31, 2016, placing custody of the children with appellee and granting appellant the same

visitation rights previously enjoyed by appellee. The court also indicated that the children

could not be left alone with Shaw, that Shaw could not take or possess pictures of the

children, that Shaw could not discuss anything about the case and resulting order with the

children, and that appellant should ensure that the children are not in the direct presence of

Shaw without her supervision. Appellant filed a motion for findings of fact and conclusions

of law on September 7, 2016. The court entered its findings of fact and conclusions of law

on September 21, 2016. It stated in pertinent part:

       Barron Shaw, the Defendant mother’s “significant other,” does not have the required
       judgment to be trusted with the care and responsibility of minor children.

       The mother’s decision to continue her relationship with Barron Shaw after she was
       made aware of his lack of judgment regarding minor children is clear evidence of her
       inability to reason in a manner that protects her children. The mother has failed to
       act in the children’s best interest by allowing and promoting Barron Shaw’s contact
       with, and authority over, the children.

       This failure by the mother (in the face of the clear evidence of Barron Shaw’s flawed
       social and parental skills) to remove the children from their continual exposure to a
       man of Barron Shaw’s ilk, as described herein, is evidence of, and supports this
       Court’s finding, that the mother is in no position to be the primary custodian.

       The mother’s initial entry into, and continued relationship with, Barron Shaw has
       been and is detrimental to the children’s safety and well being. While the initial
       relationship between the mother and Barron Shaw may very well have been platonic,
       nevertheless, to place the care and well-being of her children in Barron Shaw as a
       babysitter without so much as a cursory investigation of his online social persona was
       clearly parental negligence. He was not a licensed day care operator, nor was he in

                                              4
                          Cite as 2017 Ark. App. 518

any type of business that could have been seen as evidence of trustworthiness where
children are concerned. Counsel for the mother argued that the social media posts
by Barron Shaw were a result of his immaturity and such action would no longer
occur. Such an argument might have some basis in reality if, in fact, the social media
posts were made by a teenage child, not an adult 25+ years of age. Barron Shaw
cannot be trusted with children as he has no concept of proper parenthood. Barron
Shaw, even though clearly lacking in either authority to do so or the good judgment
to warrant same, contacted the children’s school. When a person of Barron Shaw’s
character makes contact with third parties overtly asserting or leaving the impression
that he is affiliated with, and has authority over, the children this is, in and of itself,
detrimental to the children and their reputation. Such contact was made by Barron
Shaw with the children’s school according to his testimony “out of my own
curiosity.” Barron Shaw admitted he made such contact without the consent or
knowledge of either parent. Barron Shaw has evidenced he has no respect for the
authority of the children’s parents and no appreciation for his own lack of authority
regarding the children. This alone should have resulted in the mother’s
condemnation of Barron Shaw. However, there is no evidence that the mother
admonished Barron Shaw on this issue and thus she has provided tacit approval
increasing the likelihood of future overstepping by Barron Shaw with regard to the
children.

With regard to this Court’s findings concerning Barron Shaw and his presence
around the children being to their detriment, this Court refers to and incorporates
herein by reference as if set out herein word for word each of the exhibits depicting
Barron Shaw’s photographs and social media posts. Although one or more may be
specifically addressed herein that is not to be interpreted as excluding the other
exhibits from this Court’s findings regarding Barron Shaw’s failings as an adult
example to minors.

The Defendant mother argues, as did Barron Shaw, that the social media posts by
Barron Shaw have no detrimental effect on the children.

Barron Shaw’s testimony included the following statements:

       1) “I’m very invested in the boys’ lives.”
       2) “I will be the first person to agree my Facebook posts are inappropriate.”
       3) “I’ve always known they were inappropriate.”
       4) “Facebook for me has been an outlet.”
       5) “I can’t say these things in public. It’s rhetorical hyperbole.”

First, with regard to #1 above, this Court finds that Barron Shaw’s statement is true
and correct, and further, that the mother has facilitated the relationship to the clear
detriment of her children.


                                         5
                         Cite as 2017 Ark. App. 518

With regard to #2 and #3, these statements clearly contradict the argument that
Barron Shaw’s social media postings were a result of innocent lack of maturity which
should be viewed as forgivable as well as something he could or would overcome.
Instead, this Court finds that the person depicted in his online postings is more
representative of the true Barron Shaw than the person appearing in Court on behalf
of his girlfriend’s (Defendant’s) child custody trial.

With regard to #4 and #5, it appears Barron Shaw would have this Court believe
his social media postings were of a therapeutic nature and that he is simply expressing
his wit and wisdom in a manner that should not be taken seriously and thus should
have no impact in the real world or the children in this case. This Court finds no
basis in reality to support such a claim.

Barron Shaw and the Defendant have asserted to this Court that his social media
actions could not have an [e]ffect on the children. First, this Court finds that his
inappropriate behavior, attitude and language, have carried over into his everyday
interaction with the children in the form of his usage of the following quotes being
said in front of the children based on credible testimony provided at trial:

       “Quit being a bitch”
       “You’re a dick”
       “Shut the fuck up”
       “You’re a piece of shit”

Barron Shaw’s denial of speaking to the children in this manner was unconvincing
and lacking in credibility.

Also, it is beyond this Court’s comprehension how a person with even a modicum
of intelligence regarding the nature of social media could argue that placing a child’s
photograph on the internet, such as is found in Plaintiff’s Exhibit #3, would not and
could not be detrimental to the subject of the photograph. As per Barron Shaw’s
testimony above, knowing that it was inappropriate, he, nevertheless, posted a
photograph of his own child, a toddler, eating a taco with the caption in quotations
as if attributable to the child of:

       “I motherfuckin’ love tacos! Suck my baby dick these are fuckin’ delish!”

This action, by a person, but in particular a father, is indicative of an individual who
has no business being in position of authority over a minor. This photograph and its
quotes are, as opposed to Barron Shaw’s assertion otherwise, made in public by virtue
of his placement of the information into social media. They are forever in the public
forum subject to a plethora of uses that would be a detriment to the child now and
throughout the child’s life. How many times has this been viewed, copied,
forwarded, will not be known. Will this photograph and quote find its way to haunt

                                       6
                                 Cite as 2017 Ark. App. 518

       this child in his teen years and as an adult? This photograph and quote unfairly places
       on this child the stigma that he was raised in an environment that was monitored and
       controlled by a person who had no values with respect to subjecting minor children
       to permanent embarrassment by placing evidence of the guardian’s ignorance into
       the world of the social media web to the detriment of a child now and possibly
       forever.

       The Defendant may not have known all that was presented at Court at the beginning
       of her relationship with Barron Shaw, but it is apparent that the Defendant has had
       plenty of time to review and digest, by virtue of pretrial discovery well before trial,
       the same information provided to this Court. In the face of this clear and convincing
       evidence that Barron Shaw cannot be trusted to treat his own children with the very
       basics of care and respect, the Defendant intends to continue and further develop her
       relationship with Barron Shaw and would have this Court to sanction his presence
       in the children’s lives. The Defendant has made her choice and the life she has
       chosen has no place for her to be given continued custody or control of the parties[’]
       children.

       Appellant filed a timely notice of appeal on September 22, 2016.

       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. 3 We give due deference to the superior position of the trial

court to view and judge the credibility of the witnesses. 4 This deference is even greater in

cases involving child custody, as a heavier burden is placed on the trial judge to utilize to

the fullest extent his or her powers of perception in evaluating the witnesses, their testimony,

and the best interest of the children. 5 Where the trial court fails to make findings of fact

about a change in circumstances, this court, under its de novo review, may nonetheless




       3
           Lowder v. Gregory, 2014 Ark. App. 704, 451 S.W.3d 220.
       4
           Id.
       5
           Id.

                                               7
                                  Cite as 2017 Ark. App. 518

conclude that there was sufficient evidence from which the trial court could have found a

change in circumstances. 6

       For her first point on appeal, appellant argues that there was insufficient evidence to

find a material change in circumstances warranting modification of custody. 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. 7 Generally, courts impose

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

of custody in order to promote stability and continuity in the life of the child and to

discourage repeated litigation of the same issues. 8 The party seeking modification of the

custody order has the burden of showing a material change in circumstances. 9     In order to

change custody, the trial court must first determine that a material change in circumstances

has occurred since the last order of custody; if that threshold requirement is met, it must

then determine who should have custody, with the sole consideration being the best interest

of the children. 10 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. 11 The


       6
           Campbell v. Campbell, 336 Ark. 379, 985 S.W.2d 724 (1999).
       7
           Harris v. Harris, 2010 Ark. App. 160, 379 S.W.3d 8.
       8
           Grisham v. Grisham, 2009 Ark. App. 260.
       9
           Alphin v. Alphin, 364 Ark. 332, 219 S.W.3d 160 (2005).
       10
            Tipton v. Aaron, 87 Ark. App. 1, 185 S.W.3d 142 (2004).
       11
            Carver v. May, 81 Ark. App. 292, 101 S.W.3d 256 (2003).

                                               8
                                  Cite as 2017 Ark. App. 518

trial court’s findings on whether a material change in circumstances warrants a change in

child custody will not be reversed on appeal unless they are clearly erroneous. 12

       In finding that custody should be changed to appellee, the court focused on social

media posts made by appellant’s boyfriend and his use of profanity toward or in the presence

of the minor children. Although we do not condone these actions by Shaw, we hold that

they were insufficient to warrant the custody modification. In fact, all the things the trial

court cited had either happened before the divorce decree or had been ongoing since before

the divorce. The court failed to outline exactly what the material changes of circumstance

were, and there seems to be some underlying hostility that this court is not privy to. While

our case law permits us to review the record and determine whether there was sufficient

evidence from which the trial court could have found a change in circumstances, 13 after a

thorough review of the record, we find no independent basis for concluding that a material

change in circumstances occurred. Therefore, we reverse on this point.

       Appellant’s second argument is that the trial court erred in determining that the

change in custody was in the children’s best interest. However, we need not address this

argument based on our holding that the trial court’s finding that a material change in

circumstances occurred was clearly erroneous. 14

       Reversed.


       12
            Shannon v. McJunkins, 2010 Ark. App. 440, 376 S.W.3d 489.
       13
            Campbell, supra.
       14
            See Williams v. Geren, 2015 Ark. App. 197, 458 S.W.3d 759.




                                              9
                         Cite as 2017 Ark. App. 518

GRUBER, C.J., and WHITEAKER, J., agree.

Peel Law Firm, P.A., by: John R. Peel, for appellant.

The Streett Law Firm, P.A., by: James A. Street and Robert M. Veach, for appellee.




                                      10
