Cite as 2013 Ark. App. 473

 ARKANSAS COURT OF APPEALS

DIVISION II 

No. CV-12-1057

GOLDIE IRIS BRIMBERRY

APPELLANT

V.

JOSEPH R. GORDON

APPELLEE

Opinion Delivered September 4, 2013

APPEAL FROM THE PULASKI 

COUNTY CIRCUIT COURT, 

FIFTEENTH DIVISION 

[NO. DR-2010-4770] 

HONORABLE RICHARD MOORE, 

JUDGE

AFFIRMED

RHONDA K. WOOD, Judge

 Appellant Goldie Iris Brimberry (mother) appeals a circuit court decision 

granting custody of her two-year-old child to the appellee, Joseph R. Gordon 

(father), following a finding of paternity. She contends that the circuit court erred 

in finding that there was a material change of circumstance and that it was in the 

child’s best interest to reside with his father based on her “lifestyle choices.” The 

mother alleges the circuit court’s critique of her “lifestyle choices” was a result of 

her lesbian relationship and that to change custody for this reason was in error. We 

affirm. 

In reviewing child-custody cases, we consider the evidence de novo, but 

will not reverse the trial court’s findings unless they are clearly erroneous or clearly 
Cite as 2013 Ark. App. 473 

2 

against the preponderance of the evidence. Middleton v. Middleton, 83 Ark. App. 7, 

113 S.W.3d 625 (2003). A finding is clearly against the preponderance of the 

evidence when, although there is evidence to support it, the reviewing court is left 

with a definite and firm conviction that a mistake has been made. Id. We also give 

special deference to the superior position of the trial court to evaluate and judge the 

credibility of the witnesses in child-custody cases. Durham v. Durham, 82 Ark. App. 

562, 120 S.W.3d 129 (2003). We know of no cases in which the superior position, 

ability, and opportunity of the trial court to observe the parties carry as great a 

weight as those involving children. Dunham v. Doyle, 84 Ark. App. 36, 129 S.W.3d 

304 (2003). In custody cases, the primary consideration is the welfare and best 

interest of the child involved, while other considerations are merely secondary. 

Durham, supra. 

The mother and father conceived a child out of wedlock as teenagers. They 

were able to work together to arrange a custody schedule without any court 

intervention for the first years of the child’s life. This arrangement deteriorated, and 

the father filed a petition for paternity and for custody of the minor child. The 

mother admitted paternity. There was, however, confusion at the circuit court 

level on whether the father had to prove a material change of circumstance prior to 

the circuit court determining the best interest of the child. The circuit court held 

that since the parties agreed to a custody arrangement prior to this paternity action, 
Cite as 2013 Ark. App. 473 

3 

the father had to first show that a material change of circumstance existed in order 

to gain custody of the child. The court then found a material change of 

circumstance did exist and that it was in the child’s best interest to reside with the 

father. It is not required that a circuit court find a material change of circumstance 

in an initial custody decision following establishment of paternity. The court’s 

ruling requiring a material change was in error. 

Arkansas Code Annotated section 9-10-113(a) (Supp. 2011) provides that an 

illegitimate child shall be in the custody of its mother unless a court of competent 

jurisdiction enters an order placing the child in the custody of another party. 

Freshour v. West, 334 Ark. 100, 971 S.W.2d 263 (1998). Section 9-10-113(b) 

provides that a biological father may petition the court for custody if he has 

established paternity in a court of competent jurisdiction. See id. Custody may be 

awarded to a biological father upon a showing that (1) he is a fit parent to raise the 

child; (2) he has assumed his responsibilities toward the child by providing care, 

supervision, protection, and financial support for the child; and (3) it is in the best 

interest of the child to award custody to the biological father. Ark. Code Ann. § 9-

10-113(c). This court has found that in an initial determination of paternity, the 

biological father is not required to show that a material change in circumstance has 

occurred in order to obtain custody. Lane v. Blevins, 2013 Ark. App. 270. 
Cite as 2013 Ark. App. 473 

4 

Though the circuit court here erred in its determination that the father had 

to show that a material change of circumstance occurred, this does not necessitate 

reversal. We can affirm the circuit court when it reaches the right result, even 

though it may have announced the wrong reason. Delgado v. Delgado, 2012 Ark. 

App. 100, 389 S.W.3d 52. The circuit court’s finding that it was in the child’s 

best interest to be in the custody of the father was not clearly erroneous. 

The mother incorrectly attempts to make the issue in this appeal about 

whether a circuit court can remove custody from a parent in a homosexual 

relationship for having her romantic partner in the home overnight with the child 

present. Instead, the issue is whether the circuit court was clearly erroneous in 

determining that it was not in the child’s best interest to remain in the custody of a 

mother who did not have a stable home environment.

Although the court recognized the mother’s homosexual relationship, the 

court clearly stated that it was her “lifestyle choices” that resulted in the court’s 

decision to award custody to the father. The evidence presented was that the 

mother had her romantic partner spend the night in the home, often when the 

child was present; that the child would climb into bed with them in the morning; 

and that the child’s grandmother, who also resided in the home, occasionally had a 

male companion in the home overnight. In addition, the court expressed 

frustration that the mother was not employed and was not progressing academically 
Cite as 2013 Ark. App. 473 

5 

in college–yet she left the child in daycare. Further, she had no ability or plan to 

support the child.

The court found that the father was fit: he had contributed financially for 

the child, had regularly exercised visitation, and was pursuing a career as a 

paramedic. According, it was in the child’s best interest to reside with the father. 

The circuit court expressly stated that he did not judge what the parents did on 

their own time, but having a romantic partner present with the child in the home 

overnight, and in the same room and bed with the child, was inappropriate. 

We have consistently held that circuit courts can make custody 

determinations that include assessment of a parent’s morality in the presence of the 

child. Alphin v. Alphin, 364 Ark. 332, 219 S.W.3d 160 (2005). It was not whether 

the mother in this case was in a heterosexual or homosexual relationship that 

resulted in her losing custody–it was her poor judgment and promiscuity in the 

presence of her child and the fact that the father provided a more stable home.

For these reasons, we cannot say the circuit court’s finding that it was in the 

child’s best interest to be placed in his father’s custody was clearly erroneous. We 

affirm.

Affirmed. 

GLOVER and BROWN, JJ., agree. 

Catlett Law Firm, PLC, by: Paul Charton, for appellant. 

Robert A. Newcomb, for appellee.