Reynolds v. Tassin

• Decision Date: 11 March 1946
• Docket Number: 4-7847
• Citation: 192 S.W.2d 984,209 Ark. 890
• Parties: Reynolds v. Tassin
• Court: Arkansas Supreme Court

192 S.W.2d 984

209 Ark. 890

Reynolds v. Tassin

No. 4-7847

Supreme Court of Arkansas

March 11, 1946

Appeal from Phillips Chancery Court; A. L. Hutchins, Chancellor.

Affirmed.

A M. Coates, for appellant.

Dinning & Dinning, for appellee.

OPINION

Millwee J.

This appeal involves the right to the custody of Bobby Joe Reynolds, the five-year-old son of appellant and appellee. The parties were married on May 13, 1934 immediately after appellant obtained a divorce from his first wife, with whom he had lived since 1916. Appellant became engaged in commercial fishing soon after the marriage and the couple resided in a small houseboat on the river until the death of their first child, a daughter. They then moved back to West Helena where Bobby Joe was born October 18, 1940.

The parties separated in May, 1941, and appellee obtained a decree of divorce on May 28, 1941, under the terms of which she was awarded custody of the child. In June, 1941, appellant remarried his first wife. The original divorce decree contained no provision for support of the child, but, upon application made by appellee, an order was entered November 22, 1941, requiring appellant to pay appellee $ 2.50 per week for the child's support. Appellee became employed at a hosiery mill earning $ 7 per week and placed the child in the home of relatives who lived in St. Francis county. On January 8, 1942, appellant filed his petition for modification of the original decree which was heard on the date filed and custody of the child was changed from appellee to appellant. In May, 1942, appellee married A. J. Tassin of Marksville, Louisiana.

Appellant left Helena in the early part of 1943 for California where he obtained employment in a war plant, leaving the child with the stepmother. Appellee and her present husband visited in Helena in February, 1943, and advised the stepmother of their intention to make application for a change of custody of the child. On February 25, 1943, appellee wrote a letter to appellant in which she stated that such application would be made on March 22, 1943. On or about March 1, 1943, the child and stepmother went to appellant in California and resided in a hotel for two or three weeks until government housing became available.

Appellee filed petition for modification of the order of January 8, 1942, and an order was entered on March 22, 1943, restoring custody of Bobby Joe to her. This order recites that appellant "although duly notified, failed to appear." The order also directed appellee to give bond for $ 250, the condition of which required future submission to the jurisdiction and orders of the court. At the time of this order, appellant and the child were in California. In September, 1944, appellee and her husband, A. J. Tassin, went to California where she recovered custody of the child from appellant through habeas corpus proceedings. Mr. and Mrs. Tassin returned with the child to their home in Marksville, Louisiana.

On October 17, 1944, appellant filed his petition in the Phillips chancery court to vacate the order of March 22, 1943, alleging that he had no notice of the proceedings resulting in the order of that date, and that said order was obtained through misrepresentation and fraud practiced upon the court. He prayed that the order be vacated and the custody of the child restored to him. Appellee filed a response to this petition on October 18, 1944, and, at a hearing before the chancellor in vacation, the motion to vacate the order of March 22, 1943, was denied. However, the court treated the motion to vacate as one to modify the March 22nd order to such an extent as to restore custody of the child to appellant, and the parties were permitted to file further proof for a hearing upon such motion on its merits.

The parties proceeded to take testimony on the question of a modification of the order of March 22, 1943, and the decree appealed from was entered on September 15, 1945. This decree modified the order of March 22, 1943, by awarding custody of the child to appellee for the nine months school term of each year, and to appellant for the vacation period, on condition that he pay appellee $ 5 per week for the child's support while in the custody of the mother. Both parties were required to give bond to abide by orders of the court respecting the custody of the child. Both parties have appealed from this decree.

It is first insisted by appellant that the trial court erred in its refusal to vacate the order of March 22, 1943, which modified the order of January 8, 1942, because appellant had no notice of the hearing on appellee's petition for such modification. The record reflects that a hearing was had on appellant's motion to vacate the order of March 22, 1943 on October 18, 1944. This order, which denied appellant's motion to vacate, recites that all parties and their counsel were present and that the cause was submitted upon evidence heard in open court. This evidence was not preserved in this record, and under the well settled rules of this court, it must be presumed that the omitted evidence sustains the finding of the chancellor on this issue. Harmon v. Harmon, 152 Ark. 129, 237 S.W. 1096; Hill v. Brittian, 185 Ark. 1029, 50 S.W.2d 974; Wardlow v. McGhee, 187 Ark. 955, 63 S.W.2d 332; McGowan, et al., v. Burns, et al., 190 Ark. 1177, 77 S.W.2d 970. If the court had sustained the motion of appellant to set aside the decree of March 22, 1943, this would...