GEROT v. GEROT (2002)

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

Appellee Paul Gerot petitions for rehearing from an unpublished opinion rendered by this court, reversing in part a chancery order awarding him a change of custody and granting him primary custody of his daughter, Victoria (“Tory”).¹  We deny appellee's petition for rehearing and reiterate our holding in this case with regard to his petition to change custody.

In this case, appellant Lisa Gerot, appellee's ex-wife and Tory's mother, moved to Florida because she was offered a better job with a larger salary and more flexible hours that would allow her to spend more time with Tory. Tory remained with her father in Arkansas to complete the remainder of her school year.   Appellant thereafter filed a petition to relocate and a contempt petition, alleging that appellee failed to divide certain property in accordance with the parties' divorce decree.   Appellee filed a petition for a change of custody, alleging that Tory had experienced a “dramatic change” in her attitude after she moved in with him.   At the hearing, appellee testified regarding Tory's alleged “dramatic change” and also offered testimony by Tory's teachers to that effect.

We stated that the testimony offered by appellee did not demonstrate a “dramatic change” that would justify a permanent change in custody.   Therefore, we held that appellee failed to prove a material change in circumstances and we reversed that portion of the chancellor's order granting appellee primary custody of Tory.

 Appellee now asserts that in stating he failed to demonstrate a “dramatic change” that would justify a permanent change in custody, we either misstated or misapplied the law regarding the proof required to establish a change of custody.   However, a full reading of our holding demonstrates that we did not misstate or misapply the correct standard governing motions to change custody.   The standard regarding motions for change of custody, as we cited in our prior opinion in this case, is well-settled:  Custody should not be changed unless conditions have altered since the decree was rendered or material facts existed at the time of the decree but were unknown to the court, and only for the welfare of the child.   See Hollinger v. Hollinger, 65 Ark.App. 110, 986 S.W.2d 105 (1999).

Here, appellee maintained that Tory's “dramatic change” in her attitude warranted a change in custody.   We stated our holding, in full, as follows:

Even giving due deference to the witnesses' testimony, their testimony does not demonstrate a “dramatic change” that would justify a permanent change in custody.   Because the chancellor erred in granting the motion for a change in custody in the absence of an allegation or proof of a material change warranting a change of custody, we reverse that portion of the chancellor's order.

Thus, we held that, appellee's “dramatic change” argument notwithstanding, appellee failed to allege or prove facts demonstrating a material change in circumstances necessary to warrant a change in custody.   Our decision did not change the well-settled proper standard governing motions for change of custody. Appellee's petition for rehearing raises no new issues of law and provides no additional grounds for consideration.

Petition for rehearing denied.

FOOTNOTES

1.   See Gerot v. Gerot, 76 Ark.App. 138, 61 S.W.3d 890 (2001).   We also affirmed that portion of the chancellor's order dismissing a contempt petition against appellee, and remanded for a ruling on appellant's petition to relocate.

WENDELL L. GRIFFEN, Judge.

ROAF, J., concurs.