Phelps v. Phelps
Decision Date | 01 October 1945 |
Docket Number | 4-7605 |
Parties | Phelps v. Phelps |
Court | Arkansas Supreme Court |
Appeal from Jefferson Chancery Court; Harry T. Wooldridge Chancellor.
Reversed.
E W. Brockman, for appellant.
Maurice L. Reinberger, for appellee.
Appellant and appellee were married in 1928, and lived together until February, 1944. Three children were born to them, a son, Charles, age 10, a daughter, Wilma Jane, age 7, and a son, Vester, age 5 years.
After their separation, Mrs. Phelps brought suit for divorce, and for custody of her children. A decree granting her a divorce was rendered March 21, 1944, and alimony in the sum of $ 25 per month was allowed her. The custody of their children was awarded the father, with the privilege to the mother of visiting them at reasonable times. No appeal was taken from this decree, but within the time when an appeal might have been prosecuted -- May 22, 1944 -- Mrs. Phelps filed a petition for a change of custody, which petition was heard June 21, 1944, and denied, and from that decree is this appeal.
The attorney who represented Mrs. Phelps in the original suit advised her that an appeal might be taken from the decree awarding the custody of the children to Mr. Phelps, but instead of appealing as she might have done, Mrs. Phelps employed another attorney, who filed a motion for change of custody.
The record in the case makes the fact appear that the custody of the children was awarded to the father for the reason that in the opinion of the court, Mrs. Phelps was not physically and mentally capable of taking care of the children. This opinion was evidently based upon the testimony of Mr. Phelps' employer, who testified in the case and expressed that opinion.
We have many cases dealing with the circumstances and conditions under which an order of court awarding custody of minor children could and would be changed, the most recent of these being the case of Miller v. Miller, 208 Ark. 1058, 189 S.W.2d 371, in which case we have only today overruled a petition for rehearing. In that case we said: "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 unless on altered conditions since the decree, or on material facts existing at the time of the decree but unknown to the court, and then only for the welfare of the child.'" We also there quoted from the case of Kirby v. Kirby, 189 Ark. 937, 75 S.W.2d 817, as follows: In this Miller case, supra, we reversed the action of the chancellor, who had refused to change the custody of two minor children.
In the Chapter on Divorce, 27 C. J. S., p. 1188, § 317, the law is stated as follows:
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