Barnhard v. Barnhard

• Decision Date: 20 March 1972
• Docket Number: No. 5--5807,5--5807
• Citation: 477 S.W.2d 845,252 Ark. 167
• Parties: Fay M. BARNHARD, Appellant, v. Howard J. BARNHARD, Appellee.
• Court: Arkansas Supreme Court

Page 845

477 S.W.2d 845

252 Ark. 167

Fay M. BARNHARD, Appellant, v. Howard J. BARNHARD, Appellee.

No. 5--5807.

Supreme Court of Arkansas.

March 20, 1972.

Cockrill, Laser, McGehee, Sharp & Boswell, Little Rock, for appellant.

House, Holmes & Jewell, Little Rock, for appellee.

FOGLEMAN, Justice.

Appellant asks that we reverse a decree denying her petition for modification of an agreement for the payment of child support entered into in a divorce proceeding she brought against appellee. We find no error in the holding of the chancery court, so we affirm the decree.

Appellant is an anesthesiologist. Her annual income at the time of the divorce was $42,000. Appellee is Chairman of the Radiology Department at the University of Arkansas Medical Center. He was earning between $20,000 and $25,000 annually. The parties had three children, aged 17, 15 and 14. They owned a dwelling house. Appellant testified that she had been contemplating divorce for 10 to 15 years. In 1969, when her husband returned home from a trip on which she did not accompany him, she told him that she had made up her mind to proceed with a divorce suit. She consulted the attorney who later filed the divorce suit in November of that year. After her initial visit to this lawyer, she consulted with him, both with and without her husband being present. It seems to have been agreed between the parties that negotiations would be carried on toward settlement of property rights, alimony and child support without any other attorney's participation. An agreement was reached and a formal written document executed by the parties on January 29, 1970. On December 29, 1969, appellant, through the attorney consulted, had filed a divorce complaint alleging indignities to the person as grounds. She also alleged that the parties desired a joint custodial arrangement for the children on terms to be mutually agreed upon, giving due consideration to the desires of the children.

A decree of divorce was entered on the day following the execution of the agreement by the parties upon appellee's default. The decree made no provision for child support or for property division, and did not incorporate the agreement. It did mention that the parties had made a joint child custody arrangement, and the court approved that arrangement.

The preamble to the agreement recites the mutual desire of the parties to reach an accord in order to avoid the expense, inconvenience and embarrassment of litigation. The agreement, in essence, provided:

1. For the present, the children were to reside with the father, with visitation and periodic custody in Fay M. Barnhard at reasonable times and intervals to be determined by the parties, giving due weight and consideration to the preferences expressed by the children.

2. Until there was a change of circumstances, Fay M. Barnhard was to pay her ex-husband $500.00 per month as child support.

3. Appellant was to claim the daughter Ann as a dependent for income tax purposes and appellee was to claim the other two children.

4. Each party was to maintain specific amounts of life insurance.

5. Fay M. Barnhard was to convey her equity in the parties' residence to her ex-husband which 'represents a contribution of Six Thousand and 00/100 ($6,000.00) toward the expense of a college education for the children.' Any additional contribution of appellant was specifically made voluntary on her part.

6. Other provisions related to the division of personal property including a $10,000.00 savings account, certain stocks and bonds, automobiles, paintings, library, household effects and furnishings and a stamp collection. The value of none of the items, except the savings account, was given.

On August 11, 1970, appellant filed her petition for modification of the agreement, seeking relief from the payments for child support and restoration of her one-half interest in the dwelling house. The petition alleged as changed circumstances that appellee had exclusive custody of the children, and had allowed her only limited visitation rights, and that she will incur additional and increased living expenses because she is not living with appellee. She also alleged that appellee had an annual income of $35,000 and the primary obligation for the support of the children, that the agreement was inequitable, unconscionable and contrary to the laws and public policy of the state and that she signed the agreement when she was under great emotional stress and duress due to the divorce.

The chancellor found that appellant had made the support payments until August 1, 1970, but not after that date, that all other agreements between the parties had been carried out, that there had been no material change in circumstances to warrant any modification of the agreement, and that no testimony was offered to the effect that appellant was under duress when she executed the agreement. He gave judgment for the amount of the arrearages.

We have carefully reviewed the evidence as abstracted and do not find the chancellor's findings to be contrary to the preponderance of the evidence, as appellant contends. The evidence shows that appellant's income has increased to $46,000 per year, that appellee's net income is $2,062.43 per month, that appellee had remarried and that his present wife's income was $10,500 or 'take home' pay of $719.19 per month. The apartment now occupied by appellant is too small to be adequate for her to have the children for extended visits, but it does not appear that financially, or otherwise, she is compelled to occupy an apartment this small, for which she pays only $182.50 rent. Appellant testified that one of the 'changes' about which she was complaining was that she was not seeing as much of her children as she thought she would when the decree was entered, all the while admitting that she has never been denied the right to have them with her, that she is very much welcome in their home, that she has been to her former husband's home for meals and visitation of the children at his invitation, and that she would buy a house only if the children would come live with her. Appellee testified that the title to the dwelling house was placed in him pursuant to an agreement that the parent with whom the children chose to live would have the house. The only real change in circumstances here is appellant's retrospective disenchantment with the agreement between the parties and her disappointment at limitations on the company of her children for causes more within her control than not.

Appellant's argument that the agreement was inequitable and contrary to public policy is threefold, i.e., the primary obligation is upon the father to support the minor children of a marriage if he is financially able to do so, that the agreement results in relieving him of this obligation, and that she was under great emotional stress at the time she entered into the agreement. We find no merit in any facet of the argument. Even though the father may have the primary obligation for the support of his children, the mother is in nowise exempt from any obligation in this regard. A policy determination bearing on parental obligations was made by our General Assembly as early as Act 257 of 1921, whereby the support of unmarried minor children was made chargeable to the property of father and mother, jointly and severally, and the courts empowered to adjudicate the powers, rights and duties of parents living apart with respect to the persons and property of their unmarried minor children. Ark.Stat.Ann. §§ 57--104--108 (1947). When the Probate Code was adopted in 1949, the joint obligation of the...