Hancock v. Hancock

• Decision Date: 26 June 1939
• Docket Number: 4-5612
• Citation: Hancock v. Hancock, 130 S.W.2d 1, 198 Ark. 652 (Ark. 1939)
• Parties: HANCOCK v. HANCOCK
• Court: Arkansas Supreme Court

130 S.W.2d 1

198 Ark. 652

HANCOCK v. HANCOCK

4-5612

Supreme Court of Arkansas

June 26, 1939

Appeal from Poinsett Chancery Court; J. F. Gautney, Chancellor reversed.

Decree reversed.

OPINION

SMITH, J.

The question at issue in this case arose between Pearl Hancockthe mother, and Kate Hancock, the stepmother, of a thirteen-year-old boy, and involves the right to the custody of the child.

A former appeal in this case reversed the decree of the chancellor in refusing to entertain jurisdiction of the cause, for the reason that the probate court had appointed Kate, the stepmother, as the guardian of the child.Hancock v. Hancock,197 Ark. 853, 125 S.W.2d 104.

In reversing that decree, we said: "Our conclusion is that the chancery court erred in dismissing the petition and writ of habeas corpus for the want of jurisdiction to try the cause.The defense interposed by appellee that she had been appointed guardian of the child by the probate court was no defense to the action of appellant for the custody of her child if a fit person to have the custody and control thereof.The chancery court should have heard the case on its merits as to whether the mother was a fit person to have the custody and control of her child."

Upon the remand of the cause testimony was heard upon this issue and, without hearing all the testimony offered showing fitness of Pearl, the mother, to have the custody of her child, the court announced this finding: "It is apparent, from the evidence, that the mother of the boy is fit and capable to have its care and custody no doubt about that, in my mind."

Without reviewing the testimony, it may be said that it fully sustains this finding, but, notwithstanding this finding, the court did not award the custody of the. child to its mother.

In explanation of this holding the court said: ". . . When she(the mother) should have had the custody of the child, she did not have it, and did not try to obtain custody of it.If what the child says is true, some one has committed a serious wrong--its father or whoever it was--to turn the child's mind against its mother."The judge then referred to certain statements which the boy said his father had made about his mother, and proceeded to say: "But it is very evident for some reason, whether good or bad, that he should not have been told this. . . .It is an unfortunate thing, but it can't be helped.A change would not result in any good to him now.He probably would not remain where he is sent.His mother waited a long time to ask for custody."Counsel for the mother interrupted to say: "Just three years, Your Honor," to which remark the judge replied: "But that's the time she should have asked for it.The custody will not be disturbed.The child will have the right to visit its mother and the mother to visit the child, and, if at any time she is not received, I will change the custody and put it in its mother."From that decree the mother of the boy has appealed.

As both parties to this litigation are referred to by the witnesses as "Mrs. Hancock,"we refer to them by their given names to distinguish them, Pearl being the mother and Kate the stepmother.

On October 25, 1928, a separation agreement was entered into between the father and the mother of the child, in which it was agreed that they should "at all times hereafter live separate and apart."There was a property settlement, and it was recited in the separation agreement that ". . . The wife surrenders and does hereby surrender the care and custody of their three-year-old child, John V. Hancock, to the husband, to be at all times hereinafter in the care and custody of the said husband, subject, however, to the friendly visitation of the wife."The recitals of this instrument strongly. suggest that it was prepared by the father's attorney.

As recited in the opinion on the former appeal, the father obtained a decree from the mother on the ground of adultery.This decree was rendered December 24, 1928.The parties subsequently lived together as man and wife.

Pearl testified that she was induced to resume that relation upon the representation made to her by her former husband that he had not obtained a divorce.The decree in that case was rendered upon a...