Johnson v. Arledge

• Decision Date: 13 October 1975
• Docket Number: No. 75--35,75--35
• Citation: 527 S.W.2d 917,258 Ark. 608
• Parties: Kathlynn Sue (Arledge) JOHNSON, Appellant, v. James Franklin ARLEDGE, Appellee.
• Court: Arkansas Supreme Court

Page 917

527 S.W.2d 917

258 Ark. 608

Kathlynn Sue (Arledge) JOHNSON, Appellant, v. James Franklin ARLEDGE, Appellee.

No. 75--35.

Supreme Court of Arkansas.

Oct. 13, 1975.

Holloway & Haddock, Lake Village, for appellant.

E. W. Brockman, Jr., Brockman, Brockman & Gunti, Pine Bluff, for appellee.

FOGLEMAN, Justice.

This appeal involves the custody of Karen and Sarah Lynn Arledge, minor daughters of appellant and appellee, who were divorced by decree of the Chancery Court of Jefferson County entered April 19, 1968. Custody of the daughters and an older brother was awarded appellant and appellee was ordered to pay $200 per month child support. On August 20, 1968, the chancery court granted the joint petition of the parties to permit appellant to remove the children to Texas. Between that time and March 12, 1974, numerous petitions and motions relating to support payments were filed. On the 31st day of August, 1970, the chancery court abated support payments by appellee for the months of January, February, and March 1970 because of appellee's being unemployed, required him to pay $100 onto the registry of the court for money improperly withheld by him during June, July, and August of 1970, and reduced the amount of the required support payments to $150 per month, payable in semi-monthly installments of $75 each. On March 7, 1974, appellant filed her petition alleging that appellee had removed their minor children from Texas to Arkansas, without her consent, and had failed and neglected to pay child support in violation of the chancery court's decrees. Citation was issued on this petition requiring appellee to appear on March 11 to show cause why he should not be adjudged in contempt of court. Appellee responded with a general denial filed on March 12 and also filed a motion for a change in the court's decree as to custody by awarding him custody of the two daughters, alleging that conditions had materially changed since the decree of divorce and other orders of the court and that the change in custody was in the best interest of the two children. The next day appellant filed a response denying that there was any change in conditions warranting a change of custody and alleging that his failure to comply with the custody and support orders of the court was intentional and that he should be denied any relief until he had complied with the court's orders. Appellee also filed later responses alleging that he had complied with the orders of the court, that he didn't remove the children without the consent and permission of appellant, denying that he had neglected to make required payments, and alleging that he had reduced payments with the consent of appellant and that she was barred from raising any question about his failure to make support payments.

A hearing on the various pleadings was held on August 27 and the court's opinion was rendered on August 29 and a decree entered on September 6 for August 29. The chancery court held that the appellee was in arrears on his child support payments in the sum of $1,853.33, as of March 1, 1974. It found that appellee had not willfully violated the court's orders in this respect because the evidence reflected that the children had spent much of the time after September 1, 1970 with appellee, the parties had agreed among themselves that appellee's obligation could and should be reduced, and that appellee had been unemployed for a substantial period of time after September of 1970. The court also found appellee in contempt of court for removing the children from appellant's home in Garland, Texas to his own home in Pine Bluff, Arkansas without sanction by the court or by appellant but declined to punish him for contempt, holding that there were extenuating and mitigating circumstances surrounding the removal. An attorney's fee of $250 was awarded appellant.

Appellant argues that the court erred in changing its custody order, saying that the record was void of any change in circumstances. We certainly cannot say that the court's change in custody was an abuse of discretion or that its holding in that respect was clearly against the preponderance of the evidence. There was evidence that appellant had lived with her present husband in the home with these children prior to their marriage and that the children were fully aware of the fact that they were not married and were informed of the marriage rather casually after an extended period of cohabitation. According to the children, relationships in the home deteriorated after appellant's present husband moved into the home.

The son of the parties left and came to Arkansas some time in 1973, because of his displeasure with the conditions. While some of his objections seem rather trivial and relate to his objection to strict discipline, he said that his mother and stepfather discouraged his participation in music or school activities, took one-third of his earnings for his room and board, objected to his using his mother's pots and pans to prepare his own food, which they required him to do. He stated that appellant and her husband became very cold toward all three children and seemed not to want to have anything to do with them. He also related that at times appellant told the children that she hated them, called him vulgar names, and sometimes spoke to him disparagingly in front of his sisters. He stated that whenever his mother was displeased with him she would derogatorily compare him with his father. He was of the opinion that his sisters would be better off living with their father and stepmother in that, in contrast to their previous situation, they would have the benefits of affection. He said that he had left his sisters reluctantly.

Karen was 16 years of age on July 21, 1974. She had been living with her father and stepmother in Pine Bluff since March 6, 1974. She said that she had come home on the preceding Monday and had found that her mother was gone, leaving a note saying, 'Karen, remember mother loves you no matter what happens.' She testified that her mother was out of town on numerous occasions for approximately a week at a time. She felt that after Mr. Johnson came into the picture there was not much of a home and that it was difficult for the children to get along with her mother and stepfather thereafter. She related that her mother had on occasions said that she would pay their father $100 per month if he would take the children and keep them happy. According to her, there was a complete lack of communication between children and parents but numerous arguments. Karen did not know of her mother telling neighbors to look in on them when she was away nor did she know of any occasion when anyone ever had. She stated that she was allowed $15 a week out of which she had to pay for her own meals, even when the family ate out, and that, after encouraging her to buy expensive clothing, Mr. Johnson took $4.50 per week out of her allowance until the clothing was paid for. She stated that there were marital difficulties between her mother and stepfather on several occasions. She expressed a decided preference for living with her father.

Sarah was 12 years old when she testified. Her testimony largely corroborated that of her brother and sister. She attributed the change of conditions at home to her mother's association with her present husband. She said that her mother had told her that Johnson had given her the choice of living with him or with her children.

This testimony certainly indicates a decided change of circumstances after the previous custody orders had been entered. It is quite significant to us that appellant did not testify and has never denied any of the statements made by her children under oath.

Appellant argues vigorously that since appellee was in contempt of court for violation of its previous orders relating to custody and support of the children, the chancery court erred in modifying the custody decree. She relies upon Gilmore v. Gilmore, 239 Ark. 1140, 396 S.W.2d 936; Casey v. Self, 236 Ark. 496, 367 S.W.2d 114 and Carnes v. Butt, 215 Ark. 549, 221 S.W.2d 416. These cases do not relate to changes of custody. Gilmore involved the effort of a father in contempt for willful disobedience of orders requiring payment of child support to have a reduction of the amount of payments required of him when cited for contempt. The others involved attempts of parties who had violated an injunction to test its validity on citation for contempt. Appellee did not question the validity of the previous orders. He did seek modification. However appropriate the holding in Gilmore may be where a modification of a support order is involved, the fundamental approach to custody cases in this state is incompatible with the rule appellant asks us to apply here. In cases where a change in a child custody decree is sought, our primary concern is for the welfare of the child and the desires of the parents are secondary. Townsend v. Lowrey, 238 Ark. 388, 382 S.W.2d 1. The child's welfare is the controlling consideration and custody is not awarded as a reward to, or punishment of,...