Stamps v. Rawlins , 297 Ark. 370 ( 1988 )

Robert H. Dudley, Justice.

This child custody case was certified by the court of appeals to us to decide whether a chancery court can award custody of a child to a stepparent, rather than to a natural parent. We hold that a chancellor may award custody to a stepparent, but reverse the decision doing so in this particular case.

The stepchild in this case, Ryan, was only three months old when his mother, appellant, and stepfather, appellee, were married. He was about five years old at the time the parties were divorced. In the divorce decree, entered on February 5,1987, the chancellor awarded custody of Ryan to his mother, appellant, with a right of reasonable visitation in the appellee. Only three weeks later, on February 27, the appellant, mother, filed a petition for modification of the decree on an unrelated matter. The appellee, stepfather, filed a counter-petition requesting modification of the decree with respect to Ryan. On September 29, 1987, a little over six months after the original decree, the chancellor ruled on the merits of the petitions and ordered that split custody of Ryan be placed in appellant and appellee. That is, the appellant and appellee each were awarded custody on an alternating-week basis. In his findings of fact, the chancellor found that the appellee was the only father that Ryan had ever had and that appellee treated Ryan as his own child. Further, and more significantly, the chancellor found that both parties were “fit and proper to have custody.”

Almost all of the law in Arkansas regarding custody of children is common law. We have only one statute on custody, and it provides that the award shall be made solely on the basis of the welfare and best interests of the child and must be made without regard to the sex of the parent. Ark. Code Ann. § 9-13-101 (1987). The statute makes no reference to whom custody may be awarded. However, under our case law it is clear that a stepparent can be awarded custody of a minor child. See, e.g., Goins v. Edens, 239 Ark. 718, 394 S.W.2d 124 (1965). Nevertheless, our case law specifically establishes a preference for natural parents in custody matters, and provides that the preference must prevail unless it is established that the natural parent is unfit. Goins v. Edens, supra; Hancock v. Hancock, 198 Ark. 652, 130 S.W.2d 1 (1939); Loewe v. Shook, 171 Ark. 475, 284 S.W. 726 (1926). The court of appeals followed this preference in a case very similar to the one at bar. McKee v. Bates, 10 Ark. App. 51, 661 S.W.2d 415 (1983). The preference is based on the child’s best interests.

Here, the chancellor specifically found that the appellant mother was a fit and proper person for custody. Our de novo review of the record sustains that finding. Therefore, custody of Ryan should have been left in the appellant, and it was error for the court to rule otherwise. It makes no difference that split custody, rather than full custody, was awarded.

The appellant next argues that the chancellor erred in changing Ryan’s last name to Rawlins. This argument is without merit. The appellee did not ask, either by written pleading or oral request, that Ryan’s name be changed. Yet, in his findings of fact the chancellor found that Ryan’s surname should be changed. The appellant first argues that the procedure was erroneous. The appellant was cross-examined by the appellee’s attorney on the issue of the child’s surname, and the chancellor personally asked the appellant a series of seven questions about the names. The appellant should have informally been on notice that the court was considering changing Ryan’s last name. ARCP Rule 15 provides in material part: “When issues not raised by the pleadings are tried by . . . implied consent of the parties, they shall be treated ... as if they had been raised in the pleadings. . . .” The issue seems to be fully developed, and we see no unfair prejudice to appellant in the matter. Finally, the ruling is in the best interest of Ryan.

Next, appellant argues that the name change was not in compliance with Ark. Code Ann. § 9-2-101 (1987), the statute setting out the formal procedure for a name change. It is true that the name change was not in compliance with the statute, but it was still a perfectly valid procedure. As we explained in Clinton v. Morrow, 220 Ark. 377, 247 S.W.2d 1015 (1952), and Carroll v. Johnson, 263 Ark. 280, 565 S.W.2d 10 (1978), this statute does not repeal the common law power of a chancery court to change a minor’s name when it is in the best interest of the minor to so do. The statute simply affords an additional method of effecting a name change and is supplementary to the common law. Further, this is a matter in which the chancellor has broad discretion. Clinton v. Morrow, supra.

Here, the chancellor, in his findings of fact, stated: “I am not at all impressed by the fact that Ryan is being known as someone else. Again being made to feel different.” Further, the chancellor found that appellee Rawlins was the only father Ryan had ever known and that appellee treated Ryan as his own. Under these circumstances, we cannot say the chancellor abused his broad discretion in ordering the name change on Ryan’s school records. We do note, however, that the procedure used may have violated the biological father’s right to notice and due process. See Carroll v. Johnson, 263 Ark. 280, 565 S.W.2d 10 (1978).

In addition to the custody dispute over the stepson, Ryan, there was a custody dispute over Tara, a biological child of the parties. In the original decree of divorce, granted February 5, 1987, the chancellor awarded custody of Tara to the appellant. On December 22, 1987, he made a change in the award. The appellant now argues that there was no material change in circumstances between the two decrees and, therefore, the chancellor erred in changing custody.

Our law on the subject is clear. A judicial award of custody should not be modified unless it is shown that there are changed conditions which demonstrate that a modification of the decree is in the best interest of the child. Feight v. Feight, 253 Ark. 950, 490 S.W.2d 140 (1973). The only other time a change is permissible is when there is a showing of facts affecting the best interest of the child that were either not presented to the chancellor or were not known by the chancellor at the time the original custody order was entered. Henkell v. Henkell, 224 Ark. 366, 273 S.W.2d 402 (1954).

The chancellor did not make a finding of fact aboút a change in circumstances. However, our de novo review of the record reveals that there was sufficient evidence from which the chancellor could have found a change in circumstances after the initial decree. It includes testimony that the appellant screamed and yelled at the appellee in front of Tara; that appellant telephoned the appellee numerous times while appellee was attempting to visit Tara; that Tara was dirty when appellee picked her up; that she had an infected ear and a dirty scalp; that on four separate occasions she had bruises on her lower body, which could have been caused by appellant’s use of excessive force; that appellant forced Tara to eat in the garage on at least one occasion, and that when Tara rang the doorbell and asked for a glass of water she was spanked; and finally, that Tara wanted to live with appellee, and when told she had to go home with appellant, she suffered stomach problems.

The foregoing is sufficient to show a change in circumstances, therefore, the chancellor did not err in modifying the decree.

Affirmed in part; reversed in part; and remanded for entry of a decree consistent with this opinion.

Hickman, J., dissents. Glaze, J., concurs in part and dissents in part.