Drewry v. Drewry, CA81-140

• Decision Date: 21 October 1981
• Docket Number: No. CA81-140,CA81-140
• Citation: 3 Ark.App. 97,622 S.W.2d 206
• Parties: Linda DREWRY, Appellant, v. Benny DREWRY, Appellee.
• Court: Arkansas Court of Appeals

Page 206

622 S.W.2d 206

3 Ark.App. 97

Linda DREWRY, Appellant, v. Benny DREWRY, Appellee.

No. CA81-140.

Court of Appeals of Arkansas.

Oct. 21, 1981.

Guy H. Jones, Phil Stratton, Casey Jones by Guy H. Jones, Conway, for appellant.

Matthews & Sanders by Roy Gene Sanders, Little Rock, for appellee.

GLAZE, Judge.

This case involves a custody action wherein the chancellor awarded divided custody of the parties' child to each parent on a six month/six month alternating basis. On appeal, the appellant mother contends the chancellor erred for two reasons: (1) The facts and law do not support the divided custody award; and (2) The "Tender Years Doctrine" dictates, under the facts in this cause, that the parties' two year old child be awarded to appellant.

A review of the facts in this case is most important before deciding the issues raised in this appeal. The parties are parents of a two year old son, Michael. Appellee, Benny Drewry, filed for divorce against appellant, Linda Drewry, and appellant counterclaimed for divorce. Each party sought custody of Michael. After a temporary hearing, the chancellor awarded alternating weekly custody of Michael to appellant and appellee. Two months later, the chancellor granted a divorce to appellant and continued alternating custody of Michael between the parents. However, the chancellor changed the alternating or divided custody arrangement to a six month/six month basis. The chancellor made the following detailed findings in support of his divided custody award:

(5)

That the Court has observed the attitude and demeanor of both the Plaintiff and the Defendant, and has listened to their testimony, as well as the testimony of their respective witnesses, in the temporary hearing, and now in this the final hearing, the substance of which has not varied from the evidence offered in the former; and having the benefit of a home study made by the Social Services of Searcy County, Arkansas, which found there was no Social reason that a divided custody of this minor child would be contrary to his best benefit and welfare, the Court finds that both the Plaintiff and the Defendant are fit and proper persons to have the care and custody of the minor child, Michael Pete Drewry.

Further, the paramount obligation of this Court is not to determine which sex has the child or to measure the love of the parents for the child. There is no basis for saying that a mother's love is greater than a father's, or that it is automatic that a child of tender years will enjoy the care of a mother more than that of a father. These are immeasurable factors. Likewise, when the qualities of environment, morality, ability to support and capability of care are equal, no judiciary has the inspired insight to say that custody should fundamentally exist in either parent. Being aware of the "tender years" policy of the Arkansas Supreme Court, this Court is also cognizant of numerous cases where the Supreme Court has affirmed awarded custody of children of a few months of age to the father.

(6)

In this instance, each parent is intelligent, sober, industrious and morally stable. Each is a school teacher, each is employed, each must have a baby sitter, each has the same time available for the child. The father has equally shared the usual care of the child, that is to say, he has equally attended to the child's bathing, diapering and feeding. In fact, on this issue there is no dispute therefore, believing that it is best for the welfare of a child under these circumstances, that it grow and mature in the presence of both parties with a sense of security in knowing each equally well as its parents, and in order to avoid subjecting the child to the emotional and psychological trauma of adjusting to one parent, and experiencing the abrupt severance of that relationship by a sudden change in its custody and environment to another parent, the Court finds and orders that the custody of Michael Pete Drewry be divided between the parties equally; that the Defendant, Linda Drewry, shall have custody for six months and the Plaintiff, Benny Drewry, shall have custody for six months.

After a thorough review of the record before us, we conclude that although there is conflicting testimony, the evidence is clearly sufficient to support the chancellor's findings of fact. In sum, both appellant and appellee have shared equally in the nurturance of Michael. Moreover, the parties have the same amount of time to give to Michael's care, they live within close proximity to one another and appellant and appellee each have parents who are willing and able to assist them with Michael. There is no evidence that the divided custody arrangement decreed by the court will interfere with any activities Michael may have at his young age. It is under these circumstances that appellee requested to share equal time with Michael, and under which Social Services found no social reason that divided custody would be contrary to his best welfare.

Our courts have held that divided custody of a minor child is not favored unless circumstances clearly warrant such action. Aaron v. Aaron, 228 Ark. 27, 305 S.W.2d 550 (1957), and Childers v. O'Neal, 251 Ark. 1097, 476 S.W.2d 799 (1972). In Aaron, the court denied a divided custody request by the father when the parties' thirteen year old daughter expressed a decided preference to live with her mother. In Childers, however, the Supreme Court upheld a divided custody award of a four year old daughter to both parents.

In a case decided prior to Childers, the Supreme Court affirmed the chancellor's divided custody award of two boys, who were three and four years old. Hewitt v. Morgan, 220 Ark. 123, 246 S.W.2d 423 (1952). The facts in Hewitt are similar to those before us. For example, the boys were pre-school age, the four grandparents assisted in their care, the parties lived near one another and the chancellor awarded divided custody on a six month/six month basis. The facts at bar are perhaps stronger than those in Hewitt since the evidence here is clear that both parents have shared duties and responsibilities in the care of Michael.

Although we try chancery cases de novo on appeal, we will not reverse the findings of the chancellor unless they are clearly erroneous or against the preponderance of the evidence, giving due regard to the opportunity of the trial court to judge the credibility of the witnesses. Andres v. Andres, 1 Ark.App. 75, 613 S.W.2d 404 (1981) and Digby v. Digby, 263 Ark. 813, 567 S.W.2d 290 (1978). The primary consideration in awarding the custody of children is the welfare and best interests of the children involved. Other considerations are secondary. Digby v. Digby, supra.

On the record before us, we are convinced the chancellor studiously and conscientiously considered the best interests of Michael and concluded that under the present circumstances, his welfare would best be served by having equal contact with and shared care provided by his mother and father. ¹ We cannot disagree. As is true in all custody cases, material changes may occur in the future which would warrant a change in the present custody arrangement. If so, the chancellor will be in a position to make any necessary modification to assure the interests and welfare of Michael will be protected.

Appellant next argues that even though the evidence may be clearly sufficient to divide custody between the parties, the appellant should still receive full custody because under the "Tender Years Doctrine" she, as the mother of Michael, is the preferred parent. This second issue was not argued or considered in the Hewitt and Childers cases even though divided custody of young children was awarded.

At common law, a father was the natural guardian of the minor child and was entitled to his child's custody, even above the mother, unless the child required the mother's care on account of tender years or because the child was female. Baker v. Durham, 95 Ark. 355, 129 S.W. 789 (1910). The court's predisposition to award young and female children to their mother's custody became known as the Tender Years Doctrine. The common law preference for the father to receive custody was later abrogated by law enacted by the Arkansas General Assembly. See Act 257 of 1921. The general rule became that each parent's right to custody was of equal dignity, and the primary consideration determining custody was the welfare and best interests of the child. See DeCroo v. DeCroo, 266 Ark. 275, 583 S.W.2d 80 (1979). In spite of the "equal dignity" concept employed in the general rule, the courts have continued to apply the Tender Years Doctrine and have generally found that in most cases the mother was the primary care giver to the children. Thus, the net result, as stated by our Supreme Court, has been that "it is not usual for a chancellor or this court, for that matter, on trial de novo to award custody of young children to anyone other than their mother." Stephenson v. Stephenson, 237 Ark. 724, 375 S.W.2d 659 (1964).

The Arkansas General Assembly expressed its concern over the difficulty fathers had in obtaining custody notwithstanding that, in many instances, they are more qualified to care for children than mothers. In noting its concern, the General Assembly enacted Act 278 of 1979, now compiled as Ark.Stat.Ann. § 34-2726 (Repl.1979), which provides:

In an action for divorce the award of custody of the children of the marriage shall be made without regard to the sex of the parent but solely in accordance with the welfare and the best interest of the children.

Although the Supreme Court and our court have had occasion to observe an apparent conflict between Act 278 and the Tender Years Doctrine, neither court until now has been requested to decide whether Act 278 abolishes the Doctrine in Arkansas. Kimmons v. Kimmons, 1 Ark.App. 63, 613 S.W.2d 110 (1981); DeCroo v. DeCroo, supra. In view of the clear language contained in Ac...