Brown v. Brown, 5-2353

• Decision Date: 10 April 1961
• Docket Number: No. 5-2353,5-2353
• Parties: Lilly BROWN, now Lilly Brown Beadle, Appellant, v. W. L. BROWN, Appellee.
• Court: Arkansas Supreme Court

Page 27

345 S.W.2d 27

233 Ark. 422

Lilly BROWN, now Lilly Brown Beadle, Appellant, v. W. L. BROWN, Appellee.

No. 5-2353.

Supreme Court of Arkansas.

April 10, 1961.

John E. Coates, Little Rock, for appellant.

Langston & Walker, Little Rock, for appellee.

McFADDIN, Justice.

This is a case in which neither side is entirely satisfied with the decree rendered by the Chancery Court. The decree covered several points. Mrs. Beadle appeals from some of these; and Mr. Brown cross-appeals from others. We will list the points and discuss them after giving the facts leading up to the decree here challenged.

Appellant (now Mrs. Beadle) and appellee (Mr. Brown) were married in 1929, had a family of four children, and accumulated considerable property which they held as tenants by the entirety. The Browns separated in 1942, and a divorce decree was rendered by the Pulaski Chancery Court on October 29, 1942, which (a) awarded the wife an absolute divorce; (b) gave each parent part time custody of the children, then from twelve to five years in ages; (c) required the parent having the custody of the children to provide all support during such time; (d) awarded one house to the wife and another house to the husband; (e) awarded the wife $2,775 in cash; and (f) contained the following quoted language:

'It is further considered, adjudged and decreed that these parties have real property which stands in the name of Lilly Brown and W. L. Brown as husband and wife and that this property constitutes an estate by the entirety; this property is to remain an estate by the entirety but the rents shall be collected by either, or both of these parties and shall be divided 50/50 between them; * * * It is further adjudged and decreed that these parties have real property in the name or names of their minor children; that these parties shall collect the rents from said property and shall divide same 50/50 between them.'

After the divorce decree the parties continued in a friendly business relationship, and prosecuted their joint claim against the Government for compensation for property which the United States had appropriated. In October 1942, from a part of the proceeds received from the Government, the erstwhile spouses purchased some property, with the grantees being named, 'W. L. Brown and Lillie G. Brown, his wife.' We refer to this as 'the Kinney property.'

The divorced wife married Mr. Beadle and moved to New Mexico in 1945. The divorced husband also remarried. Mrs. Beadle and Mr. Brown mutually agreed that certain portions of the said decree of October 29, 1942, should be changed; so on December 17, 1945, they jointly obtained a consent decree from the Pulaski Chancery Court which modified the 1942 decree in the following particulars:

(a) The full control of all the entirety property was delivered to W. L. Brown, who, '* * * shall collect the rents, pay the taxes, make all necessary needed repairs, and shall have the right to make improvements and additions to said property if he so desires, and that he shall pay on the 15th day of January, 1946, the sum of $100. and shall pay upon the 15th day of each month thereafter the sum of $100. to Lillie Brown through the registry of Pulaski Chancery Court, which shall be in full payment of Lillie Brown's portion in the income or receipts of said property and this $100. per month shall be paid permanently, or so long as W. L. Brown is in possession and has the use and occupancy of said property.'

(b) Mrs. Beadle received $700 as her part of the rents from the entirety property collected prior to December 17, 1945.

(c) Mrs. Beadle was to receive the further sum of $2,500 from the United States Government, '* * * in full settlement of the said Lillie Brown's interest in and to said judgment.'

(d) Mr. W. L. Brown was '* * * given care, custody and control of the said children with the requirement that he maintain and support and educate them without any contribution on the part of the mother, Lillie Brown, outside of that contribution which she is herein and hereby making by agreement to accept $100 per month for her interest in the proceeds and earnings of said property in the future; * * *'

No further court proceedings occurred until May 17, 1960, when Mrs. Beadle filed a petition in the Pulaski Chancery Court seeking a modification of the 1945 decree. She claimed:

(1) That W. L. Brown had violated the 1945 decree in failing to support the minor son, W. L. Brown, Jr.; that she had expended $250 for such support; and she prayed judgment for that amount and attorney's fee.

(2) That W. L. Brown had obtained a deed to himself as the sole grantee from their son, Larry Leroy Brown (then of full age), covering some property referred to in the 1942 decree as property, the title to which stood in the name of the minor son of the parties; that the 1942 decree recognized this as entirety property, and the deed from Larry Leroy Brown to W. L. Brown should be reformed by the Court to show the title to be held by entirety.

(3) That the Court should order a partition of all of the entirety property or should reapportion the distribution of the rents.

Mr. Brown resisted Mrs. Beadle's petition in all matters and also cross-complained, seeking to have the 'Kinney deed' reformed to entirely exclude the name of Mrs. Brown (Beadle) as grantee. With all issues joined, the matters proceeded to trial, which resulted in a decree of the Pulaski Chancery Court of September 27, 1960, which covered several points--as first mentioned--and which we will now list and discuss.

I.

Mrs. Beadle was given judgment against Mr. Brown for $250 as the amount she had expended to support the boy, W. L. Brown, Jr., during the time he was still a minor; and from this judgment Mr. Brown cross-appeals. Without reciting the evidence in detail, we conclude that the Trial Court was correct in this award. In the 1945 decree, Mr. Brown had agreed to support the children during their minority. Mr. Brown breached that agreement, during the last five months of the minority of W. L. Brown, Jr. Our cases hold that the father is under a legal obligation to support his minor children. McCall v. McCall, 205 Ark. 1123, 172 S.W.2d 677; Worthington v. Worthington, 207 Ark. 185, 179 S.W.2d 648. Our cases also hold that this obligation ¹ can be enforced against the father unless barred by the five year statute of limitations, Ark.Stats. § 37-213. Brun v. Rembert, 227 Ark. 241, 297 S.W.2d 940; Wilson v. Wilson, Ark., 329 S.W.2d 557. W. L. Brown, Jr. became 21 years of age on November 7, 1958; so the cause of action was not barred when the petition was filed by Mrs. Beadle on May 17, 1960. The evidence sustains the amount awarded and the Chancery Decree is affirmed on this point.

II.

The Chancery Court awarded Mrs. Beadle's attorney a fee of $100 for his services; and, on appeal, Mrs. Beadle's attorney asked for an additional fee in this Court, since Mr. Brown has cross-appealed from the judgment allowing $100 as fee. The Chancery Court was correct in allowing this fee. Mr. Brown had agreed in the 1945 decree to support the children and had failed to carry out that agreement as regards W. L. Brown, Jr. Mrs. Beadle, as the mother of the boy, paid for his support during the last five months of his minority. She was entitled to recover from Mr. Brown for the amount which she paid out, and also she was entitled to a reasonable attorney's fee for being compelled to pursue the matter. We have frequently allowed attorneys' fees to a parent who sues to recover support money payments. Waller v. Waller, 220 Ark. 19, 245 S.W.2d 814; Brun v. Rembert, 227 Ark. 241, 297 S.W.2d 940; Wilson v. Wilson, Ark., 329 S.W.2d 557. Since Mr. Brown cross-appealed the ruling to this Court, Mrs. Beadle has been obliged to have representation; and an additional fee of $100 is allowed in this Court. This makes a total of $200 adjudged against Mr. Brown. It is understood that this fee is only for that portion of the case that relates to the support money for the child and has no application to the other issues on this appeal.

III.

As heretofore recited, Mr. Brown obtained a deed in 1954 from his son, Larry Leroy Brown, who had then become of age, and this deed covered property which had been referred to in the 1942 decree as being property that the parties (Mrs. Beadle and Mr. Brown) owned by entirety in the name of their minor children. The Chancery Court reformed the 1954 deed from Larry Leroy Brown to W. L. Brown so as to have Mrs. Beadle and Mr. Brown continue to own the said property as tenants by the entirety; and on this point Mr. Brown has cross-appealed. The 1942 decree recited:

'It is further adjudged and decreed that these parties have real property in the name or names of their minor children; that these parties shall collect the rents from said property and shall divide same 50/50 between them * * *'

The 1945 decree did not divest Mrs. Beadle of her entirety interest in this property. Larry Leroy Brown continued to be the trustee for his mother and father; and when Mr. Brown took the deed from Larry Leroy Brown in 1954, he knew that Larry Leroy Brown was trustee for him and Mrs. Beadle as tenants by the entirety, and that by omitting her name from the deed he could not divest her entirety interest as he attempted. ² His feeble claim in the present case is that the property was his own and that her name should not have been included in the first instance. The 1942 decree precludes any such claim. The Chancery Court was correct in restoring this property to the entirety estate.

IV.

In 1944, and after the divorce, Mr. Brown and Mrs. Beadle acquired some property from W. E. Kinney and wife, and the grantees in that deed were, 'W. L. Brown and Lillie G. Brown, his wife.' The Chancery Court allowed Mr. Brown to testify that he personally paid all the consideration for the Kinney deed and that Mrs. Brown's name was included by mistake. On such...