APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FOURTEENTH DIVISION. NO. DR-10-437. HONORABLE VANN SMITH, JUDGE.
Dover Dixon Horne PLLC, by: W. Michael Reif and Carl F. " Trey" Cooper, III, for appellant.
Hilburn, Calhoon, Harper, Pruniski & Calhoun, Ltd., by: Traci LaCerra, Lauren Hamilton, and Mary Claire McLaurin, for appellee.
DONALD L. CORBIN, Associate Justice. BAKER, GOODSON, and HART, JJ., dissent. BAKER, J., joins.
DONALD L. CORBIN, Associate Justice
This appeal is from child-custody orders entered by the Pulaski County Circuit Court on October 11, 2012, and November 13, 2012. This court granted a petition for review filed by Appellee Marcia Goodloe following a decision by the court of appeals in Goodloe v. Goodloe, 2013 Ark.App. 624, S.W.3d, wherein the court of appeals reversed the circuit court's order leaving primary custody with Marcia but granting Appellant Graham Goodloe certain decision-making authority with regard to the parties' two minor children, B.G. and T.G. When this court grants a petition for review of a decision by the court of appeals, we treat the appeal as if it had been originally filed in this court. Singletary v. Singletary, 2013 Ark. 506, 431 S.W.3d 234. We remand this case to the circuit court and vacate the order of the court of appeals.
After we had granted the petition for review, Marcia sought and received permission
to file a supplemental brief with this court. After her supplemental brief had been filed, Graham filed in this court a motion to dismiss the appeal. Therein, Graham stated that the circuit court had entered an order on March 11, 2014, temporarily changing custody of the parties' minor children to Graham, and the pending appeal was therefore moot. Marcia filed a response, asserting that the appeal was not moot because the circuit court's order was a temporary order that could not be appealed. Moreover, Marcia asserted that it was necessary for this court to clarify what she deemed to be a conflict between this court's decision in Singletary, 2013 Ark. 506, 431 S.W.3d 234, and the court of appeals' decision in this case. This court denied the motion to dismiss on April 17, 2014.
Graham now asserts on appeal that the circuit court erred in refusing to award him physical custody of the children when it found a material change in circumstances justifying a change in educational decision-making authority for B.G. and T.G., and medical decision-making authority for T.G., from Marcia to Graham. According to Graham, the circuit court's finding that physical custody should remain with Marcia was contrary to the preponderance of the evidence and not in the best interest of the children.
Although this appeal is not moot, the issues presented regarding a material change in circumstances and the best interest of the minor children have once again changed, as demonstrated by the circuit court's order granting temporary custody to Graham. While the circuit court's most recent order governing custody of the minor children is temporary, Graham has requested a permanent change of custody based on allegations of a material change in circumstances that occurred after entry of the order that is the subject of this appeal. Thus, any opinion offered by this court with regard to the 2012 orders granting Graham certain decision-making authority but leaving physical custody with Marcia would be purely advisory. And it is well settled that this court does not issue advisory opinions. See DIRECTV, Inc. v. Murray, 2012 Ark. 366, 423 S.W.3d 555. Accordingly, because of the unique procedural history of this case, we remand it to the circuit court for consideration of any pending matters related to the custody of the minor children, B.G. and T.G.
Remanded; court of appeals' opinion vacated.
Baker, Goodson, and Hart, JJ., dissent.
Courtney Hudson Goodson, Justice, dissenting.
Appellant Graham Goodloe has appealed the circuit court's denial of his motion for a change of custody. For reversal, he contends that the circuit court erred by not finding a material change of circumstances and by not granting him physical custody of the children, although the court had found sufficient justification to warrant
giving him significant decision-making authority. Rather than address the merits of this controversy, the majority simply remands this case to the circuit court because, via motion to dismiss on grounds of mootness, it has come to this court's attention that Graham has filed another motion for a change of custody and that the circuit court has temporarily changed custody to Graham pending a final hearing. I dissent because this court should address the merits of the appeal.
The circuit court's order denying Graham's motion for a change of custody is obviously a final order. As such, it is subject to appeal. This court has denied Graham's motion to dismiss the appeal as moot because the circuit court's most recent order vesting custody in Graham was only temporary in nature. Regardless of what may be happening in circuit court at this time, the issue raised by Graham in this appeal is ripe for review and should be settled by this court. The majority recognizes that this case is not moot. Because the issue is not moot, it cannot be said that our opinion would be purely advisory. See Chandler v. Martin ex rel. State, 2014 Ark. ...