McCall v. McCall

• Decision Date: 28 June 1943
• Docket Number: 4-7110
• Citation: 172 S.W.2d 677,205 Ark. 1123
• Parties: MCCALL v. MCCALL
• Court: Arkansas Supreme Court

172 S.W.2d 677

205 Ark. 1123

MCCALL v. MCCALL

4-7110

Supreme Court of Arkansas

June 28, 1943

Appeal from Pulaski Chancery Court; Frank H. Dodge, Chancellor affirmed in part and reversed in part.

Decree reversed and cause remanded.

Fred A Isgrig and Carl E. Langston, for appellant.

Price Shofner and June P. Wooten, for appellee.

OPINION

KNOX, J.

This litigation was commenced as a suit for separate maintenance but was later converted to one for divorce. By an interlocutory order, made on January 4, 1940, appellee was directed to pay appellant $ 62.50 per month in semi-monthly installments for the support of the two minor daughters of the parties. By means of dilatory payments appellee met all installments to and including the one due May 15, 1940, which he discharged on June 5, 1940, and thereupon payments ceased. Responding to a citation to show cause why he should not be held in contempt for his failure to obey the orders of the court, appellee on July 1, 1940, not only escaped punishment for past defaults, but obtained an order respecting future payments, which reads in part as follows: ". . . the order heretofore entered requiring the defendant to make payments to the plaintiff for support of said children be suspended and the same is held in abeyance as of June 15 1940, until such time as the defendant may secure employment, and that upon securing employment the defendant is directed and ordered to report to the court the amount which he is earning, to the end that the court may be in possession of information concerning defendant's ability to resume payments to the plaintiff for the support of said minor children."

From June through December, 1940, inclusive, appellee contributed only $ 15 toward the support of his children. On October 30, he reported to the court that he had found employment, and soon thereafter the court entered an order directing him to pay $ 17.50 on the 5th and 20th of each month commencing January 5, 1941. Appellee tardily met seven of these installments, making his last payment of $ 35 on May 20, 1941, to cover installments which had fallen due on March 20 and April 5.

Appellee testified that shortly thereafter he and a partner tried to work a small antimony mine in Pike county, with little or no success; that he then went to Tulsa, Oklahoma, and Fort Smith, Arkansas, on a fruitless search for employment; that for a few weeks he worked intermittently at Fort Leonard Wood as a carpenter, but earned nothing above expenses. Between July, 1941, and February, 1942, he was interested in the operation of a drink and food concession at a government war project near Hope, Arkansas, but appellee testified that his partner "pulled out and went west" with the money, and he obtained only experience from the venture. Appellee obtained a food and drink concession at the Ozark Ordnance Plant at El Dorado, Arkansas, where evidently his fortune took a decided turn for the better. Appellee opened an account with the First National Bank of that city by the deposit of the sum of $ 103.32, on July 11, 1942. From that date until the close of business for said bank on November 5, 1942, appellee deposited to that account in excess of $ 25,000, and during that time maintained therein an average daily balance of $ 2,086.08. Appellee admits that his gross receipts from sales during such period equalled $ 28,000.

On October 28, 1942, the court, on motion of appellant, entered judgment against appellee on account of past due and unpaid installments for $ 976.25. This sum included the full amount which would have accrued under the order of January 4, 1940, if the suspension order of July 1 had not been made. This presents a question here. Appellant contends that the order of July 1, 1940, merely stayed process for the enforcement of the payments as they accrued, but did not stop the accrual of the debt, while appellee contends that no amounts were chargeable against him while the order of July 1, 1940, was in effect.

Immediately upon obtaining the judgment of October 28, 1942, appellant caused a writ of garnishment to be issued thereon and served on the First National Bank of El Dorado, Arkansas. At the close of business on the day before the service of the writ appellee had on deposit $ 2,930.39. The bank in answer to the writ of garnishment stated that it was withholding $ 976.25, the amount named in the writ, together with $ 100 to cover cost, and prayed that it be permitted to pay said sum into the registry of the court, and be discharged.

On November 10, 1942, appellee filed his motion to vacate the judgment of October 28, and prayed that the correct amount due by him be fixed and determined. On January 5, 1943, appellant amended her complaint so as to pray for divorce, and on that day the entire controversy was submitted to the court, and it decreed: (1) A divorce to appellant; (2) that garnishee be discharged upon payment of the sum of $ 1,076.36 into the registry of the court; (3) that appellant have judgment for $ 751.35, being balance due on accrued installments for support of children; said judgment to be paid out of funds paid in by (this sum did not include any allowance for the period during which the order of July 1 was effective); and (4) that in the future appellee be required to contribute $ 37.50 per month for the support of each of his minor daughters until such daughters become of legal age, or until further order of the court.

Appellant argues that the decree is erroneous in two particulars; (1) that the...