Phelps v. Phelps

• Decision Date: 01 October 1945
• Docket Number: No. 4-7605.,4-7605.
• Citation: 189 S.W.2d 617
• Parties: PHELPS v. PHELPS.
• Court: Arkansas Supreme Court

189 S.W.2d 617

PHELPS v. PHELPS.

No. 4-7605.

Supreme Court of Arkansas.

October 1, 1945.

Dissenting Opinion October 15, 1945.

Appeal from Jefferson Chancery Court; Harry T. Wooldridge, Chancellor.

Suit for divorce by Lucille Phelps against Edward Phelps. A divorce was granted and custody of children was awarded to defendant. Thereafter plaintiff filed a petition for change of custody, and from a decree denying such petition, the plaintiff appeals.

Reversed and remanded with directions.

E. W. Brockman, of Pine Bluff, for appellant.

Maurice L. Reinberger, of Pine Bluff, for appellee.

FRANK G. SMITH, Justice.

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, Ark., 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, 452, 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 afterward 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: "It is the well-settled doctrine in this state that the chancellor in awarding the custody of an infant child or in modifying such award thereafter, must keep in view primarily the welfare of the child, and should confide its custody to the parent most suitable therefor; the right of each parent to its custody being of equal dignity. Act No. 257 of 1921 * * *. Caldwell v. Caldwell, 156 Ark. 383, 246 S.W. 492; Jackson v. Jackson, 151 Ark. 9, 235 S.W. 47." 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., § 317, p. 1188, the law is stated as follows: "To justify a substantial modification there must be a change of circumstances or the discovery of material facts unknown to the court at the time of the original decree. The welfare of the child is controlling, and in determining this a number of factors may be considered.

"To justify a substantial modification of the decree awarding custody of the children, there must be shown a change of circumstances or the discovery of material facts existing, but unknown to the court, at the time of the rendition of the decree. If the welfare of the child so requires, the decree may be modified without a change of circumstances, on the presentation of facts which although existing at the time of the original decree were not then presented or considered. The welfare of the child is the controlling consideration, and whenever it is shown that it is best for the welfare of the child that it be transferred from the custody to which it was awarded, the court will in its discretion modify the decree; otherwise modification is properly denied. The decree should not be modified merely to conform to the wishes of a parent, nor should it be modified for the reward or punishment of a parent, but the rights and wishes of the parents should, if possible, be considered. The court will take a child of tender years away from the mother to whom it was awarded only for the most cogent reasons."

Among the numerous cases cited in the notes to the text quoted are our cases of Caldwell v. Caldwell, 156 Ark. 383, 246 S. W. 492; Stone v. Crofton, 156 Ark. 323, 245 S.W. 827; Jackson v. Jackson, 151 Ark. 9, 235 S.W. 47; Nelson v. Nelson, 146 Ark. 362, 225 S.W. 619.

The record affirmatively shows that the parties to this litigation are good people, but of humble circumstances, and we have the view that had the divorce been denied, they would have composed their differences and would have resumed their marital relations. In appellee's brief, it is said: "There has been no effort consciously or unconsciously to question the moral character of the appellant. It is freely admitted that that is beyond question".

We are, however, primarily concerned with the welfare of these children, the eldest only 10 years and the youngest 5 years of age, the other a girl 7 years of age. We cannot order the restoration of this home, and must be content to make such order as will be least harmful to the children. We have in mind the fact that the custody of these children was awarded to the father in a decree from which no appeal was taken, and that order must stand until some valid reason is shown for a change, and the text from which we have just quoted states the circumstances and conditions under which a change of custody will be ordered.

Has there been any change of circumstances? We think there has been a change in two particulars at least, and these we proceed to discuss. The decree awarding custody to the father gave the mother the right of visitation at all reasonable times, and we think there has been a substantial denial of this right. Mrs. Phelps testified that the right of visitation was not denied, but was accorded under circumstances which made...