Henkell v. Henkell

• Decision Date: 13 December 1954
• Docket Number: No. 5-520,5-520
• Citation: Henkell v. Henkell, 273 S.W.2d 402, 224 Ark. 366 (Ark. 1954)
• Parties: Henry HENKELL, Appellant, v. Betty June HENKELL and Mrs. Russell Urich, Appellees.
• Court: Arkansas Supreme Court

Page 402

273 S.W.2d 402

224 Ark. 366

Henry HENKELL, Appellant, v.Betty June HENKELL and Mrs. Russell Urich, Appellees.

No. 5-520.

Supreme Court of Arkansas.

Dec. 13, 1954.

L. V. Beaman, Grove, Okl., Vol T. Lindsey, Bentonville, for appellant.

F. O. Butt, Eureka Springs, for appellees.

MILLWEE, Justice.

Appellant, Henry Henkell, was separated from his wife, Betty Henkell, in April, 1952, and on July 21, 1952, secured a divorce from her in the Carroll County Chancery Court.As a part of the relief granted in that proceeding, custody of the only child of the marriage, Deborah Henkell, now 4 years old, was awarded to appellee, Mrs. Russell Urich, Betty Henkell's mother.It is uncertain from the record whether this conclusion was reached from the evidence adduced at the original hearing or from an agreement of the parties or both.In addition to awarding custody of the child to Mrs. Urich, the court also vested her with discretionary authority to permit either parent to have temporary custody of the child from time to time for purpose of visitation.

On the day after rendition of the divorce decree appellant left Eureka Springs with the child and its mother.They travelled about quite a lot in Texas, Missouri, Oklahoma and Arkansas and appellant finally took the child to the farm and home of his parents in Ottawa County, Oklahoma.In February, 1953, Mrs. Urich filed a petition for writ of habeas corpus in the District Court of Ottawa County seeking custody of the child.After a full hearing the court found that appellant wrongfully removed the child from the custody of Mrs. Urich; that there was insufficient change in conditions to warrant a modification of the Arkansas decree; and that it was for the best interest and welfare of the child that custody be restored to the child's grandmother.Appellant failed to prosecute an appeal from this judgment and instituted the instant proceeding against Mrs. Urich and the child's mother in the Carroll Chancery Court on July 22, 1953, seeking a modification of the original divorce decree and the permanent custody of the child.Appellees duly answered and trial resulted in a decree refusing to modify the original decree as to custody and directing appellant to pay $30 per month for the child's support.

The basis of the petition for modification of the original decree and the principal argument for reversal of the decree on this appeal is the disputed contention that it was agreed between the parties, at the time of the original decree, that Mrs. Urich should deliver permanent custody of the child to appellant and that this agreement was performed immediately upon rendition of the decree.During the pendency of the divorce suit appellant and the child lived in the home of Mrs. Urich and her husband, the step-father of Betty, in Carroll County.On July 22, 1952, the day following the divorce, Mrs. Urich gave appellant a written statement to the effect that he might keep the child 'as long as he desires' and have charge of her 'until she is returned to my custody.'Appellant then left with the child and his former wife for Taxeas where they stayed for a time and then went to Joplin, Missouri.In the latter part of August, 1952, the three returned to the Urich home at Eureka Springs.Although appellant admitted that he was fully cognizant of the terms of the original divorce decree, he testified that he had a separate agreement that Mrs. Urich would deliver exclusive custody of the child to him.This was stoutly disputed by Mrs. Urich who testified that it was understood on July 22, 1952, that he would return the child in four to six weeks and that he took the child in the latter part of August, 1952, without her knowledge and consent and thereafter failed to notify her of the child's whereabouts.After several months inquiry and search she ascertained...