                                Cite as 2014 Ark. App. 500

                 ARKANSAS COURT OF APPEALS
                                       DIVISION II
                                      No. CV-13-1117


                                                 Opinion Delivered   September 24, 2014

MEAGAN HUNT ABO                                  APPEAL FROM THE SALINE
                               APPELLANT         COUNTY CIRCUIT COURT
                                                 [NO. 63DR-13-360]
V.
                                                 HONORABLE ROBERT LEO
                                                 HERZFELD, JUDGE
BART WALKER
                                 APPELLEE        AFFIRMED



                            KENNETH S. HIXSON, Judge


       Appellant Meagan Hunt Abo appeals the August 2013 Saline County Circuit Court

order titled, “Final Judgment of Paternity, Custody and Child Support” that established

appellee Bart Walker’s paternity and ordered that he would be the custodian of their daughter

BW, born in March 2009. Appellant contends that the trial court erred by failing to

recognize that custody was vested, as a matter of law, in the mother of this child born out of

wedlock, and by failing to require appellee father to establish a material change in

circumstances before awarding custody of BW to him. We affirm.

       BW was born to appellant and appellee in March 2009. The three of them lived in

appellee’s house on Hummingbird Lane in Alexander, Arkansas.                The parents were

unmarried. Appellant was attending college classes, and appellee assisted with BW’s care.

The relationship between the biological parents ended in May 2012, and appellant moved in
                                 Cite as 2014 Ark. App. 500

August 2012 to a garage apartment owned by her parents. BW remained primarily with

appellee, although the parties shared time with their daughter. In March 2013, appellee filed

a petition to establish paternity in Saline County Circuit Court and asked for primary custody

of BW, who continued to reside with him. Appellant responded, denying that BW should

be in appellee’s custody and noting that by statute she was the legal custodian. Appellant

asked for a paternity test, primary custody, and child support. A subsequent DNA test

confirmed that BW was appellee’s biological child.

       In May 2013, appellant married Daniel Abo, and she graduated from college. She took

a full-time job as an English teacher for the Dumas School District, intending to move to

Dumas or Monticello for the upcoming school year.

       In July 2013, the circuit court entered an order establishing paternity, found that

appellee had provided housing and support for BW since her birth, and found that appellant

was entitled to summer visitation following a “temporary hearing” in June 2013.1 This order

noted that the visitation schedule was by agreement of the parties.

       After a hearing on August 13, 2013, the circuit court entered a “Final Judgment of

Paternity Custody and Child Support,” which is the subject of this appeal. In the “Final

Judgment,” the circuit court found that appellee was the father of BW and had provided

housing and support for her since her birth, that after the “permanent hearing,” a standard

visitation schedule would be established for appellant, that appellant would pay child support,


       1
        Absent from the appellate record is any transcribed record of that June 2013 hearing.
Notably, appellee father was to have custody, and appellant mother was to have visitation
rights.

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                                  Cite as 2014 Ark. App. 500

and that appellee was decreed to be “the legal father and custodian of BW.” It is from this

order that appellant filed a timely notice of appeal.

       Appellant’s first point on appeal is that the trial court erred in failing to recognize that,

pursuant to Ark. Code Ann. § 9-10-113(a) (Repl. 2009), custody was vested in her as the

mother of the child born out of wedlock. Subsection (a) provides:

       When a child is born to an unmarried woman, legal custody of that child shall be in
       the woman giving birth to the child until the child reaches eighteen (18) years of age
       unless a court of competent jurisdiction enters an order placing the child in the custody
       of another party.

Ark. Code Ann. § 9-10-113(a). We agree that subsection (a) provides that an unmarried

mother is presumptively granted legal custody of the child at birth; however, subsection (a)

does not entirely resolve the issue before us because a biological father may petition for

custody if certain requirements are met, as provided in subsections (b) and (c) of that statute.2

The appropriate inquiry is whether a court of competent jurisdiction has made an initial

judicial determination of custody so as to trigger an additional requirement that the father

seeking custody plead and prove a material change of circumstances, which is the basis of

appellant’s second point on appeal. This secondary requirement was established by the

Arkansas Supreme Court in Norwood v. Robinson, 315 Ark. 255, 866 S.W.2d 398 (1993).


       2
         Arkansas Code Annotated section 9-10-113(b) provides that a biological father may
file a petition for custody if he has established paternity. Subsection (c) of the statute provides
that a trial court may award custody of the child to the father if he proves by a preponderance
that he is a fit parent; he has assumed responsibilities toward the child financially, physically,
and emotionally; and it is in the child’s best interest to award him custody. Subsection (d)
states that if it is in the child’s best interest, visitation shall be awarded in a way that ensures
frequent and continuing contact between the child and both parents. Appellant does not
contend that appellee father failed to establish the elements required by statute.

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       Appellee asserts, and we agree with him, that appellant never raised this issue to the

trial court or obtained a ruling on it. The first time appellant presents the phrase “material

change in circumstances” or any legal requirements about “material change in circumstances”

is in appellant’s brief on appeal. Thus, this asserted legal error is not preserved for appellate

review. See McNutt v. Yates, 2013 Ark. 427, 430 S.W.3d 91; Tipton v. Aaron, 87 Ark. App.

1, 185 S.W.3d 142 (2004).3

       Affirmed.

       PITTMAN and WALMSLEY, JJ., agree.

       Cullen & Co., PLLC, by: Tim Cullen, for appellant.

       Baker, Schulze and Murphy, by: Ruthanne Murphy and J.G. “Gerry” Schulze, fora ppellee.




       3
         Even if this argument had been preserved for our review, we would affirm based upon
controlling precedent from our court. See Brimberry v. Gordon, 2013 Ark. App. 473; Lane v.
Blevins, 2013 Ark. App. 270; Donato v. Walker, 2010 Ark. App. 566, 377 S.W.3d 437; Hicks
v. Cook, 103 Ark. App. 207, 288 S.W.3d 244 (2008); Harmon v. Wells, 98 Ark. App. 355, 255
S.W.3d 501 (2007); Sheppard v. Spier, 85 Ark. App. 481, 157 S.W.3d 583 (2004).

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