Jackson v. Jackson
| Decision Date | 05 December 1921 |
| Docket Number | 29 |
| Citation | 235 S.W. 47,151 Ark. 9 |
| Parties | JACKSON v. JACKSON |
| Court | Arkansas Supreme Court |
Appeal from Ouachita Chancery Court; J. Y. Stevens, Chancellor reversed.
Decree reversed and petition dismissed.
Powell & Smead, for appellant.
The court erred in awarding the custody of the child to plaintiff, without first taking proof showing justification for the change. 124 Ark. 579; 146 Ark. 362.
Thos W. Hardy, for appellee.
The decree of the chancery court was not final. The chancery court has the right and power to control the custody of a minor child in a contest brought before it. 37 Ark. 30; 106 Ark. 203. The court may also order a change of custody for good cause. 118 Ark. 582; 123 Ark. 242; 124 Ark. 579; 146 Ark. 366; 106 Ark. 203.
The father, unless incompetent and unfit, is the natural guardian and entitled to the custody of his minor child. 32 Ark. 96; 95 Ark. 358; 37 Ark. 30.
Where the evidence is sufficient, the findings of a chancellor will not be disturbed. 95 Ark. 482; 73 Ark. 489; 90 Ark. 166. Where the evidence is conflicting, his findings will not be set aside, unless clearly contrary to the weight of evidence. 84 Ark. 429; 85 Ark. 83; 98 Ark. 287.
This is an appeal from a decree of the Ouachita Chancery Court transferring the custody of Thurman Jackson from appellant in whom the custody of the child was placed in a divorce proceeding on September 18, 1919, to appellee. The decree of date September 18, 1919, awarding the custody of the child to appellant was rendered in an action brought by appellant against appellee for a divorce and custody of the child, to which appellant filed an answer and cross-bill for divorce. In that case the court dismissed the bill and cross-bill for want of equity, and awarded the custody of the child to appellant until the further orders of the court, with the privilege to appellee of seeing and visiting the child at all reasonable times and hours, on which visits appellee and appellant were ordered to deport themselves in a proper manner and to say or do nothing which would cause the child to think less of either parent.
Appellee's petition, filed on the 7th day of April, 1920, for a change or transfer of the custody of the child from appellant to him contained allegations for divorce, which appellee, on motion, was permitted to withdraw. The remaining allegations were, in substance, to the effect that appellee was better able and situated to take care of and educate the child than appellant. The answer filed by appellant controverted this allegation in the petition.
The cause was submitted to the court upon the pleadings and testimony, which resulted in a decree awarding the custody and control of the child to appellee, with the direction that it should visit and stay with appellant from the 1st day of June until the 1st day of September and from the 20th day of December to the 31st day of December each year.
There is no conflict in the testimony of the witnesses. The record reveals that appellee and appellant separated on the 12th day of June, 1918; that the mother retained the custody of and supported the child; that the father never visited the child until December, 1919; that the father filed suit for divorce and custody of the child, to which the mother filed an answer and cross-bill; that the suit was heard and dismissed by the court in September, 1919; that at the time a decree was rendered awarding the custody of the child to the mother until further orders of the court, which contained directions and orders as heretofore set out; that after the order was made the mother and child resided with Jeff Wells, her brother-in-law, as a member of his family. Mr. and Mrs. Wells were and are willing for her and her child to live with them. While residing there, her two brothers assisted her. The two brothers, R. L. Shirey and George Shirey, also were and are willing for appellant and her child to make their home with them and to support her and the child. R. L. Shirey lives at Louann, where he is postmaster and engaged in the mercantile business. At the time of the trial appellant was residing with her brother, George Shirey, about seven miles from Camden, and about three miles from a consolidated school which furnishes a conveyance to take the children back and forth to school.
After the separation appellant taught music for a livelihood and did the sewing for herself and child. From her earnings she had been able to support and maintain herself and child. She has at all times kept the child with her and administered to his needs personally. During the time she was residing with Mr. and Mrs. Wells, appellee visited the child three times, the first time in December, 1919, again in January, 1921, and again in June, 1921. He took a friend with him on each occasion for the purpose of using him as a witness in case it became necessary. On the first visit appellee offered the child a toy gun, which appellant handed back to him, saying that she had supported the child up to that time without his help and she did not care for it then. Their conversation indicated that both were angry.
On the second visit the father found the child in the kitchen with the mother and offered him a nickel if he would come to him. The mother said, They repaired to the sitting room, where the father took the child and held him in his lap. He called the child "son," which caused the mother to say, "Charlie, if I had talked about a woman like you have about me, I would not be sure that Thurman was my son." Mr. Wells advised her not to talk that way, and no further conversation was indulged in between them.
On the third visit, in June, 1921, the father was unable to see the child because he ran away from him.
During the trial of the cause, at the noon recess, the child refused to go to the father, and fought at him as well as his grandmother Jackson when they tried to take him and kiss him.
Appellant attempted to explain her conduct toward appellee on the occasions of his visits on the ground that he had traduced her character, and on that account she held him in contempt; that at the time she did not understand the decree prevented her from saying and doing what she did; that, after consulting her attorney, she concluded that she had done wrong and was then willing for the father to visit the child and to render such assistance as he desired in maintaining and supporting him.
During the time intervening between the first and second suits appellee worked...
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...he shown a change in circumstances of the appellee which would warrant a change in the custody of the child. See 124 Ark. 579; Jackson v. Jackson, 151 Ark. 9. The cases cited by appellant were before the passage of 257 of the Acts of 1921. The best interest of the child would be served by a......
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...parent to its custody being of equal dignity. Act No. 257 of 1921 * * *. Caldwell v. Caldwell, 156 Ark. 383, 246 S.W. 492; Jackson v. Jackson, 151 Ark. 9, 235 S.W. 47." In this Miller case, supra, we reversed the action of the chancellor, who had refused to change the custody of two minor I......
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Phelps v. Phelps
... ... being of equal dignity. Act 257 of 1921. Caldwell v ... Caldwell, 156 Ark. 383, 246 S.W. 492; ... Jackson v. Jackson, 151 Ark. 9, 235 S.W ... 47." In this Miller case, supra, we reversed ... the action of the chancellor, who had refused to change the ... ...
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