Phifer v. Phifer

• Decision Date: 12 June 1939
• Docket Number: 4-5519
• Citation: Phifer v. Phifer, 129 S.W.2d 939, 198 Ark. 567 (Ark. 1939)
• Parties: PHIFER v. PHIFER
• Court: Arkansas Supreme Court

129 S.W.2d 939

198 Ark. 567

PHIFER v. PHIFER

4-5519

Supreme Court of Arkansas

June 12, 1939

Appeal from Boone Chancery Court; J. M. Shinn, Chancellor; reversed.

Decree reversed and remanded.

J. Loyd Shouse and John H. Shouse, for appellant.

Virgil D. Willis, for appellee.

OPINION

MEHAFFY, J.

Howard Phifer and Mary Phifer were married in 1931, and are the parents of one child, about six years old. The present suit involves the custody of this child.

In July, 1938, the parties separated and Howard Phifer brought suit for divorce alleging indignities that rendered his condition intolerable. The complaint in the divorce case shows that they are the parents of one child, Barbara, who at the time the divorce suit was filed was five years old. Mary Phifer did not contest the divorce suit, but signed a waiver of service and entry of appearance. She, at the time, had the child with her. There was nothing said about the custody of the child in the divorce suit, but Mary Phifer, the mother testified that she did not contest the divorce because her husband Howard Phifer, told her that she could retain custody of the child and that he would support her and the child that that was the reason she did not employ a lawyer, because she was most interested in retaining the custody of her child.

Howard Phifer testifies that he did not tell the mother of the child that she could have it all the time, but that he did tell her that while she had the custody of the child he would support her.

Shortly after the decree for divorce was granted Howard Phifer returned to Louisiana, where he has been working for the past three years. He then wanted the child to visit with him, communicated with the mother, and she consented for the child to go to Louisiana on a visit. Howard Phifer testified that when he got the child and took her to Louisiana, he did not intend that she should return to her mother, but he did not tell the mother this. He admitted that if he had told her she would probably have refused to let the child go.

When the parties were first married, Mary Phifer was only seventeen years old. She wanted her husband to provide a home of their own but instead of doing so he took her to his parents' home, where they resided most of the time until their separation.

After the father secured custody of the child, he and his mother came from Louisiana to Harrison, Arkansas, and both of them stayed at Phifer's sister's house in Harrison. They arrived at Harrison at night, and the next day Howard Phifer filed suit for the custody of the child. The suit was against Mary Phifer, mother of the child. Thereafter, on December 16, 1938, she filed answer and cross-complaint asking for the custody of their child and that the decree for divorce theretofore granted be canceled and set aside, and alleged that said decree was procured by fraud upon the court and against her.

Martha Phifer, the mother of Howard Phifer, filed inter-plea asking for the custody of the child, stating that she was its grandmother and it had nearly always lived with her; that she was a fit person and able to care for it, and that its father and mother were not fit persons to have its custody.

The chancellor entered a decree canceling the divorce decree and also held that, for the time being, the child should remain in the custody of its grandmother, and that the grandmother be required to execute a bond in the sum of $ 500 for the production of said infant in the court at Harrison on the second Monday in June, 1939, and upon the execution and filing of such bond, she be permitted to take said infant and keep her under the orders of the court in her home in Louisiana until the second Monday in June, 1939. The court retained control of the infant and the cause of action, and further provided that the grandmother should return it to court for further orders of the court.

Howard Phifer did not file any answer to the inter-plea or intervention of Martha Phifer, his mother, although she alleged in her intervention that he was not a fit person to have the custody of his child.

Under the common law the primary right to the custody of the children was to the father. This rule, however, has been changed in many jurisdictions by statutes and by the decisions of courts.

Section 6203 of Pope's Digest makes the father and mother joint natural guardians, and § 6205 of Pope's Digest provides that where the parents are living apart, there may be an adjudication of the court as to the power, rights and duties with respect to persons and property of their unmarried, minor children, and in such cases there shall be no preference between the husband and wife, but the welfare of the child must be considered first.

There is no evidence that the mother is unfit to have the care and custody of the child. Howard Phifer, the husband, testified that she was extravagant, and he said that at times she treated the child all right, and at other times she did not try to treat her in any way but ugly. He does not attempt to say in what way she was extravagant or state any facts tending to show that she did not exercise good judgment.

Mary Phifer testified that when they lived together, the husband was receiving $ 75 per month; that she managed the expenses, paid the bills, and saved some money. This testimony is not disputed by anyone.

The grandmother testified that both father and mother were unfit to have the child because they were careless and went to parties and left the child with her. There is no substantial evidence in the record that tends to show that the mother is unfit to have the custody of the child.

The statements mentioned above are mere conclusions. Witnesses must testify to facts, and the court draws its conclusion from the facts testified to.

Prior to the adoption of the statute making the father and mother joint guardians of the child, this court said: "The father is the natural guardian of his child, and is prima facie entitled to its custody. This right of the father is not an absolute one, however, to be enforced under all circumstances; . . . 'When, therefore, the court is asked to lend its aid to put the infant in the custody of the father, and to withdraw it from other persons, it will look into all the circumstances and ascertain whether it will be for the real, permanent interest of...