Cite as 2017 Ark. App. 128


                 ARKANSAS COURT OF APPEALS
                                      DIVISION IV
                                      No. CV-16-410



                                                Opinion Delivered: March   1, 2017
RACHEL WOOLARD WESTIN
                   APPELLANT APPEAL FROM THE CRAIGHEAD
                              COUNTY CIRCUIT COURT,
V.                            WESTERN DISTRICT
                              [NO. 16JDR-10-537]
JARED C. HAYS
                     APPELLEE HONORABLE THOMAS FOWLER,
                              JUDGE

                                                AFFIRMED


                                 MIKE MURPHY, Judge

        Appellant Rachel Woolard Westin appeals from the order of the Craighead County

 Circuit Court changing custody of her minor daughter to the child’s father, appellee Jared

 Hays. We affirm.

        Westin initiated this action in 2010 following the birth of her child with Hays. On

 August 22, 2011, the circuit court entered an agreed order of paternity in which Westin

 was awarded sole custody of the minor child. On January 15, 2015, Hays filed a motion to

 modify child custody on both a temporary and a final basis, alleging that a material change

 in circumstances had arisen and that the child’s lifestyle and well-being were in jeopardy

 based on Westin’s living conditions and arrangements. The circuit court denied the

 emergency motion, but on January 13, 2016, the circuit court entered an order granting

 Hays’s motion to modify custody. The order modified custody and awarded Hays sole
                                 Cite as 2017 Ark. App. 128

custody of the minor child; it also ordered Westin to pay $144 biweekly as child support.

Westin timely appealed, arguing that the circuit court’s findings of a material change in

circumstances and the best interest of the child were clearly erroneous.

       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. 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. The party seeking modification

has the burden of showing a material change in circumstances. Id. 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).

       For her first point on appeal, Westin argues that the circuit court’s finding of a

material change in circumstances was clearly erroneous because the court erred by allowing


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evidence of facts not pleaded in Hays’s petition; more specifically, Westin argues that the

introduction at trial of facts that had not been raised by the petition was in violation of the

Due Process Clause. Westin further argues that the petition’s properly pleaded facts do not

give rise to a material change in circumstances.

       Westin’s due-process argument was not raised below, and thus, it is not preserved

for appeal. See Mason v. State, 2014 Ark. App. 285, 435 S.W.3d 510 (holding that even

when the issue is constitutional in nature, an argument is not preserved on appeal unless the

appellant raised and made the argument at trial and obtained a ruling on it; nor will a

particular theory be addressed on appeal if it was not presented below). The record reflects

that Westin objected only one time with respect to the specificity of the pleading. The

instance arose on direct examination of Hays when he was asked whether Westin had

complied with a provision of the court order regarding the administration of prescription

medicine and the sharing of medical information with the other parent. Westin objected on

the grounds that the petition served on her did not mention anything about medication or

illness and asserted that Arkansas is a fact-pleading state. The circuit court overruled her

objection, explaining that one of the allegations in the petition was neglect as a custodial

parent and that the testimony regarding the prescription and medical information was

relevant because it demonstrated her role as a custodial parent. Furthermore, Westin had

ample opportunities to raise this issue before now but failed to do so; she could have filed a

motion that the petition failed to state facts upon which relief could be granted, filed a

motion for a more definite statement concerning the complaint, raised the issue in closing

arguments, or raised the issue in her motion for additional findings of fact.


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       We next turn to Westin’s argument that the facts do not give rise to a material change

in circumstances. In the circuit court’s findings of fact, it provided an extensive explanation

showing that Hays met his burden of proving a material change in circumstances. The circuit

court relied on the following evidence: since the August 22, 2011 order, Westin has changed

residences between five and seven times with three of those moves being outside the State

of Arkansas without the required written notice to Hays. Since that date, Westin has not

been gainfully employed for extended periods of time and has held numerous jobs; Westin

has remarried, divorced, and given birth to a second child; she engaged in poor decision-

making, including her numerous questionable social-media posts regarding her children; she

has used her children on “GoFundMe” in an attempt to get people to give her money to

go to school; she has failed to adequately care for the medical needs of her minor child; and

she has repeatedly presented the minor child in clothing that was filthy, not age appropriate,

and at times soaked in urine. The circuit court also noted that Hays has maintained

employment, has married, and has purchased a home; he has established and continues to

maintain a stable living environment; and he has demonstrated that he has the family support

system and financial stability to raise the child. Further, the circuit court found that it did

not believe Westin had any intention to ever coparent. Thus, deferring to the circuit court’s

credibility determinations, the court’s finding of a material change in circumstances was not

clearly erroneous.

       In Westin’s brief, she argues as though this is a simple relocation case. She provides

four subpoints to support her contention that, overall, the “move was not detrimental in

any way to the best interests of the minor child.” Admittedly, the court ruled in its initial


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order awarding custody to Westin that in the event either party intended to relocate outside

of northeast Arkansas, he or she was to notify the other parent with thirty days’ written

notice prior to any relocation. Here, Westin did relocate on more than one occasion outside

of northeast Arkansas without providing written notice to Hays prior to the relocation.

However, Westin’s contention that this is a simple relocation case is incorrect. She

incorrectly relies on Hollandsworth v. Knyzewski, 353 Ark. 470, 109 S.W.3d 653 (2003). In

Hollandsworth, our supreme court held that relocation of the custodial parent and child is

not, by itself, a material change in circumstances justifying a change in custody. This case is

distinguishable from Hollandsworth because the case at hand is a modification of custody and

not a simple relocation case; also, here, Hays brought the motion to change custody whereas

in Hollandsworth the custodial parent brought the motion to relocate. 1 Finally, we note that

Westin never raised any specific argument pursuant to Hollandsworth below, and the

argument she raises on appeal is not preserved for our review.

       For her second point on appeal, Westin argues that the circuit court clearly erred in

finding that the change of custody was in the best interest of the child. There is no exhaustive

list of factors a circuit court must consider when analyzing the best interest of the child; the

main consideration is whether there are changed conditions that demonstrate that a

modification of the decree is in the best interest of the child. Alphin, 364 Ark. at 343, 219

S.W.3d at 167. In Bamburg v. Bamburg, 2014 Ark. App. 269, at 8, 435 S.W.3d 6, 11–12, this


       1
         In particular, Westin argues that she was under no constitutionally valid obligation
to notify Hays in advance of her move to Tennessee. She goes on to explain that forcing a
custodial parent to seek permission to move their child across state lines has a detrimental
effect on the federally protected right to travel. Westin never advanced this particular
argument below, and it is therefore not preserved for appeal. Mason, supra.

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court explained the factors a circuit court may consider in determining what is in the best

interest of the child, which include the psychological relationship between the parents and

the child, the need for stability and continuity in the relationship between parents and the

child, the past conduct of the parents toward the child, and the reasonable preference of the

child.

         In the circuit court’s findings of fact regarding the best interest of the child, the court

generally stated the following factors should be considered in awarding custody: integrity,

character, compassion, habit of sobriety, religious training, attitude of a newly acquired

partner, and acts of domestic violence; stability of the parties, including emotional, work,

financial, and residential stability; love and affection of the parties, including attention given

to the child, discipline of the child, and social attitudes; the child’s stated preference, age,

sex, health, and child-care arrangements. Westin argues that the circuit court’s findings of

fact failed to articulate a full analysis of all the factors. 2 The court relied on the facts it had

previously set forth in its analysis of the change of circumstances and ruled that, in

considering all the evidence, it was in the best interest of the child that custody be changed

to Hays. These findings touched on each of the best-interest factors most applicable to this

case. Thus, under our de novo review, we cannot rule that the circuit court clearly erred in

finding that it was in the best interest of the child to be placed in Hays’s custody.

         Affirmed.


         2
         Westin cites Powell v. Ayers, 792 So. 2d 240 (Miss. 2001), for the Mississippi rule
requiring a circuit court to specifically analyze each best-interest factor on the record. Once
again, however, Westin failed to present this argument to the circuit court. Moreover, there
is no such requirement in Arkansas case law; accordingly, the circuit court cannot be said
to have erred in not doing so. See Mason, supra.

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WHITEAKER and VAUGHT, JJ., agree.

Tara Raddle, for appellant.

Kristofer E. Richardson, for appellee.




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