Clinton v. Morrow

• Decision Date: 14 April 1952
• Docket Number: No. 4-9759,4-9759
• Parties: CLINTON v. MORROW.
• Court: Arkansas Supreme Court

Page 1015

247 S.W.2d 1015

220 Ark. 377

CLINTON v. MORROW.

No. 4-9759.

Supreme Court of Arkansas.

April 14, 1952.

Rehearing Denied May 12, 1952.

Gean & Gean, Ft. Smith, for appellant.

Kincannon & Kincannon, Warner & Warner and Lem C. Bryan, all of Ft. Smith, for appellee.

MILLWEE, Justice.

Appellant, Carl C. Clinton, and appellee, Mary Lou Morrow, were formerly husband and wife. Two children were born of their marriage, a boy named Chris Costello Clinton, and a girl, Judith Lynn Clinton. On July 30, 1949 appellee was granted a divorce from appellant on grounds of cruel treatment and general indignities and she was awarded custody of the two children subject to appellant's right of visitation at all reasonable times. Appellee was also awarded $50 a month for her support and $100 a month for support and maintenance of the children. An agreed settlement of their property rights was incorporated in the decree.

Appellee married A. P. Morrow about six months after the divorce decree and the appellant married again about a month later. A boy was born of appellant's second marriage and given the name of Carl Charles Clinton. The monthly support payments of $50 to appellee ceased upon her marriage to A. P. Morrow.

On September 19, 1951 appellant filed a motion in the original divorce suit alleging changed conditions since rendition of the decree resulting from the subsequent marriages of the parties and asking that the monthly support payment of $100 for the children be reduced to $85. Appellant also alleged that he had not been able to visit the children 'except on the average of about once every two weeks' because of 'various excuses' given by appellee and that the court should fix some definite time of visitation. The motion further alleges: 'That the plaintiff has wrongfully caused said children to be enrolled in the public schools under the name of Morrow, which is illegal and improper and detrimental to said children, and is done for the purpose of destroying and impeding the affections of said children toward their natural father, and this defendant is entitled to an order of this court directing said children to be enrolled in the public schools under their correct name.'

The response of appellee contained a general denial and asserted that the allowance for the support of the children should be increased to $125 per month. Appellee admitted that she had caused the two children to be registered in school under the surname, Morrow, but asserted that such action was taken solely for the welfare and best interest of the children and without malice toward appellant or any attempt to estrange the children from him. Appellee also alleged that the repetition and similarity of the initials and name of their son with those of his father, grandfather, and half-brother, born of appellant's second marriage, had resulted in great confusion, inconvenience, disadvantage and embarrassment to the children.

This appeal is from an order denying the motion of appellant. The court decreed that the monthly payments for support of the children remain at $100; that appellant's right of visitation with the children at all reasonable times should stand as fixed in the original decree; and that it was for the children's best interest to use the surname of their stepfather.

We find no abuse of discretion in the chancellor's refusal to reduce the monthly payments for support of the children from $100 to $85. Appellant argues that appellee failed to prove that more than $85 a month was necessary for the children's support. It must be assumed that the chancellor correctly fixed the allowance at $100 in the original decree and the burden was on appellant to prove such changed circumstances as to render the amount so fixed excessive.

Appellant also argues that the increased expenses of supporting his present wife and their child has made it impossible for him to accumulate any savings or to meet certain obligations. The evidence reflects that appellant is engaged in the retail furniture business as a partner with his father, mother, and brother-in-law. Each of the partners draws $350 salary per month which is charged out of business profits at the end of the year. This is an increase of $50 per month over appellant's drawing account at the time of the original divorce decree. Appellant testified that 'very little' surplus profits remained after deducting the several drawing accounts. Although he did not know the net profits of the business for 1950, he thought the taxable net income returned by him for that year was approximately $5,000 and that he gave that amount as his expected income in his declaration for 1951. He admitted that the children's attendance at school would require an increase in expenses of their maintenance. We cannot say that the chancellor's finding on this issue is against the preponderance of the evidence.

As to appellant's contention that the court erred in refusing to fix a definite time for visitation of his children or to require appellee to designate such fixed time, little need be said. The evidence does not show any unreasonable restrictions on appellant's right of visitation. When asked to fix dates and hours of visitation which he preferred, appellant stated that it would be difficult to set a definite time and expressed a preference to 'leave it open'. The chancellor should not be censured for failure to do something that appellant himself deemed inadvisable and unreasonable.

Appellant's contention that the chancellor erred in refusing to require appellee to register the children in school under his surname presents a more serious question. At the time of the trial the age of the boy was six and one-half years and the girl five and one-half years. In September, 1951 the boy entered public school while the girl was in kindergarten and both were registered in the surname, Morrow. Prior to their entry in school the children had experienced embarrassment and worry because their name was different from the of their mother, had begun to use the Morrow name and were known to their playmates as the Morrow children.

The boy's name was Chris Costello Clinton. His father, the appellant, is named Carl Costello Clinton. Appellant's father is named Costello Cowen Clinton, and appellant's eight-month-old son by his second marriage is named Carl Charles Clinton. The evidence discloses that this multiple similarity of names and identity of initials caused considerable confusion and certain disadvantages. Before the divorce the parties encountered difficulties arising out of mistakes in store accounts because of the identity of appellant's initials with those of his father. Although appellant was not a 'Junior', this appellation was added to his name in order to avoid such confusion. It is not unreasonable to assume that the confusion would become greater in the case of the child of the parties if he is required to use the same surname and initials of his father, grandfather, and half-brother.

In a written opinion filed by the chancellor he stated that the primary consideration on the change of name issue was the best interest of the children. He further...