McCourtney v. McCourtney

• Decision Date: 25 January 1943
• Docket Number: 4-6914
• Parties: MCCOURTNEY v. MCCOURTNEY
• Court: Arkansas Supreme Court

168 S.W.2d 200

205 Ark. 111

MCCOURTNEY v. MCCOURTNEY

4-6914

Supreme Court of Arkansas

January 25, 1943

Appeal from Craighead Chancery Court, Western District; J. F Gautney, Chancellor; modified and affirmed.

Decree affirmed.

Bon McCourtney and Claude E. Brinton, for appellant.

C. T Carpenter, for appellee.

OPINION

SMITH, J.

This appeal is the culmination of protracted litigation between appellant and appellee, his wife, involving the custody of their three children, all girls, one, Bonnie Lee, age 15 another, Willie Dan, age 13, and the third, Julia Ann, age 10, and the amount which appellant should be required to pay his wife for her support and that of the children.

A decree of divorce was granted the wife on July 22, 1941, which gave her the custody of the children, with alimony in the amount of $ 100 per month. She was allowed $ 50 for the fee of her attorney and $ 10 for his expenses.

On October 20, 1941, the court rendered a supplemental decree reducing the allowance to $ 75 per month and granting the custody of Bonnie Lee, the oldest child, to appellant, who was ordered to pay an additional fee to his wife's attorney of $ 35.

Other proceedings were had in which a reduction of the alimony was prayed on the one hand, and the aid of the court invoked on the other to require payment of the arrearage in the alimony which had been allowed, and each party prayed the court for an order granting sole custody of all the children. The record is full of contradictions in the testimony, which cannot be reconciled, and there is manifested an attempt upon the part of each parent to prejudice the children against the other parent. The final decree, from which is this appeal, awarded the custody of all three children to the wife and ordered the father to pay $ 75 per month alimony, and allowed additional fees to the wife's attorney, all of which fees total $ 170, no part of which has been paid. Appellant has never paid this alimony promptly and his arrearage has increased from month to month. He claims to have paid only $ 485 on this account, and has paid nothing to his wife's attorney.

Without reviewing the conflicting testimony, we announce our conclusion to be that the welfare and best interests of the children, which is, of course, the primary consideration, require that they be kept together, and, in view of the fact that the children are all girls and the youngest only 10 years old, we think the chancellor properly awarded the custody of all the children to their mother.

Appellant does not question the divorce, nor does he seriously question his obligation to pay alimony. His insistence is that he has been ordered to pay a sum beyond his means and ability. In cases like the instant case, two questions arise. First, what are the needs of the wife and children, suitable to their station in life, and what sum will be required to satisfy them? Second, what is the ability of the husband and father to pay?

Upon the first question it may be said that the allowance is not excessive, but, upon the second, we are of the opinion that the allowance is beyond appellant's ability to pay, and that fact must be taken into account whatever the answer to the first question may have been.

At one time appellant operated a garage, which he has closed for lack of equipment. He owned a pool hall, upon which there...