Miller v. Miller
| Decision Date | 18 June 1945 |
| Docket Number | 4-7680 |
| Citation | 189 S.W.2d 371,208 Ark. 1058 |
| Parties | Miller v. Miller |
| Court | Arkansas Supreme Court |
Appeal from Jefferson Chancery Court; Harry T. Wooldridge Chancellor.
Reversed.
H K. Toney, for appellant.
Maurice L. Reinberger, for appellee.
This appeal is from an order of the chancery court overruling appellant's motion to modify a decree rendered on May 22, 1944, in which he was granted a divorce from appellee, and the custody of their two minor children was awarded to the mother of appellee.
The original complaint for divorce was filed and heard on the day the decree was entered. The complaint alleged that the parties had agreed that appellee's mother should have custody of said children until further orders of the court, and that appellant would pay $ 20 semi-monthly for their support. It was also alleged that property rights had been settled out of court. The decree awarded custody of the children and ordered payment of support money as provided in the agreement set out in the complaint and concluded as follows: "It is further ordered and decreed that the court retains jurisdiction over this cause for the purpose of making further orders as to the welfare of said minor children as circumstances and new conditions may arise."
Before the case was heard, the parties met in the office of appellant's attorney and appellant contends that it was agreed that his mother-in-law should have custody of the children until he could arrange for a place to care for them, while appellee insists that it was agreed that she should have custody of the children upon her agreement to relinquish her rights in the property of appellant.
Appellant filed the motion to modify the decree on September 8, 1944, in which it was alleged that the agreement that the grandmother of said children should have their care and custody was temporary, and that appellant had no one to care for said children at the time the decree was entered; that appellant had since remarried and his present wife was of good character and was experienced in caring for small children; that appellee was still an improper person to care for said children, and that the home of the grandmother was an improper place for them to be reared; that appellant had a good home and position and was able and prepared to properly care for said children.
At the hearing on the motion for modification of the decree on September 19, 1944, appellee filed a response in which she set up the alleged agreement to relinquish her property rights to appellant upon the condition that she have custody of the children. It was further alleged in her response that she was the proper person to have custody, and that there had been no change in the status of the children since the original decree was rendered. The chancellor overruled and dismissed the motion of appellant, and this appeal follows.
The parties to the suit were married on May 11, 1940, and resided near Pine Bluff where the two children, a boy and a girl, were born. Appellant was employed in the Cotton Belt railway shops. In December, 1943, appellee decided to seek employment apparently over the objections of appellant. She drove a cab for a week and then took a job at the Pine Bluff Arsenal where she was still employed in September, 1944. Appellee took the two children to the home of her mother and both parties contributed to their support. Appellee left appellant in April, 1944. Appellant visited his children daily after they were taken to the house of their grandmother and has continued to manifest an interest in their welfare.
By § 6205 of Pope's Digest it is provided that, where the husband and wife are living apart, there shall be no preference between them as to the custody of their children, but that in each case the welfare of the child must be considered first in determining the custody of such child. The statute has been construed in many cases as requiring the courts, in awarding or changing the custody of children, to regard the welfare of the child as the first and primary consideration. In the case of Kirby v. Kirby, 189 Ark. 937, 75 S.W.2d 817, the applicable rule is stated as follows:
"In Weatherton v. Taylor, 124 Ark. 579, 187 S.W. 450, we approved the rule as stated in 9 R. C. L., p. 476, as follows: 'A decree fixing the custody of a child is, however, final on the conditions then existing, and should not be changed afterwards...
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