Nelson v. Nelson
| Decision Date | 06 December 1920 |
| Docket Number | 39 |
| Citation | 225 S.W. 619,146 Ark. 362 |
| Parties | NELSON v. NELSON |
| Court | Arkansas Supreme Court |
Appeal from Sebastian Chancery Court, Fort Smith District; J. V Bourland, Chancellor; reversed.
Decree reversed, and cause remanded.
Pryor & Miles, for appellant.
1. The court erred in changing the former decree and awarding the children to appellee. The children are minors, and, by statute as well as common law, the father (unless incompetent or unfit) is the natural guardian and entitled to the custody and care, etc., of the minor children. 22 Ark. 96; 95 Id. 355; 21 Enc. Law 1036-7; 124 Ark. 579. The original decree was a final adjudication awarding the children to the father, and there is no testimony is the choice of the children. The proof is that the husband and father was fit and competent and able to properly care for them. 124 Ark. 579.
2. The court erred in awarding appellee judgment for the board and lodging of the children for the period she voluntarily kept them between the time of the original decree and the decree in this case. 42 Ark. 495.
3. It was error to award appellee judgment for $ 100 attorneys' fees. Kirby's Dig., § 2679; 7 R. C. L. 792.
Ira D Oglesby, for appellee.
1. There was no error in changing the former decree and awarding the custody of the children to appellee. Chancery courts have power to award the custody of children of divorced parents and to change the award when expedient. 64 Ark. 518; 85 Id. 471. Where the capabilities of the parents are equal, and the children of mature age, their wishes as to which parent they desire to live with are decisive. 63 N.Y.S 1113; 2 Strange 982; 78 N.Y.S. 175; 82 P. 177; 23 Ill.App 196; 166 Ala. 351; 52 So. Rep. 310; 17 S.E. 308; 65 N.W. 555. The testimony of the children is sufficient and clear that the mother was their choice, and that she was amply able and willing to care for them.
2. There was no error in awarding appellee judgment for the expense of board and lodging for the children for the period she voluntarily kept them. 42 Ark. 495; 88 Am. Dec. 652. Divorce does not relieve the father of his duties to support, care for and educate the children. There is no evidence that the mother in any way tried to persuade the children to disregard the decree of the court. On the contrary, the evidence of both children is to the effect that their mother in no way tried to persuade them to come and live with her. 42 Ark. 495 does not sustain appellants' contention nor is it applicable here.
3. There was no error in awarding $ 100 attorneys' fees. It was a part of her alimony. Kirby's Dig., § 2679.
OPINION
The parties to this litigation were husband and wife until October 25, 1919. On that date an absolute divorce was granted Mrs. Nelson, the wife. The decree in the case allowed her $ 7,500 alimony, which was paid by Mr. Nelson. There were four children, and of these the court awarded to the father the custody of Paul, a son 18, J. T., Jr., a son 17, and Virginia, a daughter, age 15. The custody of the remaining child, a daughter, eight years old, named Geraldine, was awarded to the mother. In regard to this last child the order of the court was that "the mother shall support and maintain the child Geraldine while it remains with her, and if at any time it is with the defendant, its father, he shall support and maintain it." The decree contained the recital that "for the purpose of guarding the welfare of these children jurisdiction of this cause is retained by the court."
Some time later the wife filed a petition, in which she alleged that J. T., Jr., and Virginia had declined to live with their father, and were making their home with her, and she alleged that she had incurred an expense of a thousand dollars in procuring a suitable home for herself and the children, and that she had no income except that derived from her alimony which she alleged was insufficient to support herself and the children. She alleged that she had two brothers living in the State of Wyoming, who were willing and able to assist in rearing the children, and she prayed that the custody of the children be awarded to her, and that she be given permission to take them to that State. In addition, she prayed that the court require Mr. Nelson to reimburse her for the support of J. T., Jr., and Virginia since the date of the decree, and that he be required to make fixed contributions to their support.
The prayer of the petition was resisted, and at the hearing the court declined to allow Mrs. Nelson to take the children to Wyoming, but did award their custody to her, and, in addition, allowed her $ 180 for the care of J. T., Jr., and Virginia for the six months which they had been with her since the original decree, and directed that he pay Mrs. Nelson $ 50 per month for their care, until the further orders of the court, and that he pay her attorney a fee of $ 100, and this appeal is from that decree.
It appears that Paul, the oldest son, had entered the navy, and there is no controversy about his custody.
Mrs. Nelson testified that, after obtaining the decree, she prepared a home for herself and Geraldine at a cost of a thousand dollars, and that soon thereafter J. T., Jr., and Virginia came to live with her, and had since made their home with her. She denied that she had enticed or induced the children to leave their father. She testified that Mr. Nelson desired to send the son to the State University and the daughter to a convent, but neither was willing to go, and neither went.
It is undisputed that the original decree made what was intended to be a final allowance of alimony to the wife; and it is admitted that the sum awarded was arrived at by conference and agreement. Later Mrs. Nelson claimed that she was entitled to certain household goods in addition to the alimony allowed her, and she and Mr. Nelson entered into an agreement which recited that it was "in full settlement of all claims" by Mrs. Nelson. This agreement allowed Mrs. Nelson to remove the household articles there...
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