James v. James, CA

• Decision Date: 29 November 1989
• Docket Number: No. CA,CA
• Citation: James v. James, 780 S.W.2d 346, 29 Ark.App. 226 (Ark. App. 1989)
• Parties: Oralyn Hamilton JAMES, Appellant, v. Mark Evan JAMES, Appellee/Cross-Appellant. 89-184.
• Court: Arkansas Court of Appeals

Page 346

780 S.W.2d 346

29 Ark.App. 226

Oralyn Hamilton JAMES, Appellant, v.Mark Evan JAMES, Appellee/Cross-Appellant.

No. CA 89-184.

Court of Appeals of Arkansas Division II.

Nov. 29, 1989.

Shackleford, Shackleford & Phillips, El Dorado, for appellant.

Compton, Prewett, Thomas & Hickey, El Dorado, for appellee/cross-appellant.

CORBIN, Chief Judge.

Appellant, Oralyn Hamilton James, appeals a decision of the Union County Chancery Court refusing to grant her petition for a change of custody of her two minor children from appellee, Mark Evan James, to appellant.We find error and reverse and remand.

Custody of the minor children, Elizabeth and Christopher, was awarded to appellee upon entry of a decree of divorce on August 21, 1985, subject to appellant's right to visitation.Appellant filed her petition for change of custody on July 11, 1988, and the matter was heard by the chancellor on September 23, 1988.On October 3, 1988, an order was entered denying appellant's request for a change of custody after the court concluded that there had been no material change in circumstances making it in the best interest of the children to do so.It is from this denial that this appeal arises.

For reversal, appellant raises the following points: 1) The trial court erred in holding inadmissible evidence that appellee was guilty of fraudulent embezzlement of funds while acting as personal representative of his father's estate; 2) the trial court erred in denying her petition for change of custody; and 3) the trial court erred in denying her motion for relief from order.Appellee cross-appeals from the court's denial of his counterclaim for child support.

Because we find that appellant's first point contains merit and warrants reversal and remand for a new trial, we will not address appellant's remaining points for reversal or appellee's argument on cross-appeal.

In her first point, appellant contends the court erred by sustaining appellee's objection to introduction of relevant and material evidence that appellee fraudulently embezzled funds from his deceased father's estate while acting in the fiduciary capacity of personal representative.We agree.

Appellant's proffer of the excluded evidence reveals testimony of appellee's mother and the family property settlement agreement evidencing appellee's admitted guilt of fraudulently depleting funds from his father's estate thereby depriving his mother and sister of their inheritance.Appellee's mother testified that she became suspicious of appellee's actions with regard to her husband's estate and hired a lawyer to audit the accounts managed by her son, appellee.Appellee became angered by his mother's actions and refused to allow the children to continue their relationship with her.Fraud was established and an agreement to...