Townsend v. Lowrey

• Decision Date: 21 September 1964
• Docket Number: No. 5-3300,5-3300
• Citation: 238 Ark. 388,382 S.W.2d 1
• Parties: Vestal TOWNSEND, Appellant, v. Barbara Helen LOWERY, Appellee.
• Court: Arkansas Supreme Court

Page 1

382 S.W.2d 1

238 Ark. 388

Vestal TOWNSEND, Appellant, v. Barbara Helen LOWERY, Appellee.

No. 5-3300.

Supreme Court of Arkansas.

Sept. 21, 1964.

Van Chapman, Searcy, Jack Holt, Little Rock, for appellant.

Lightle & Gedder, Searcy, for appellee.

JOHNSON, Justice.

This appeal arises from child custody proceedings. On August 12, 1957, appellant Vestal Townsend obtained a divorce from appellee Barbara Helen Townsend (now Lowrey) in White Chancery Court. In the divorce decree the Chancellor awarded appellant 'the temporary care and custody of Alicia Lynn Townsend, infant child of the parties' and specifically retained jurisdiction for the purpose of making further orders relative to custody. On December 8, 1961, appellee (now a California resident) filed a petition for change of custody, following which the Chancellor obtained reports from the Welfare Departments of Arkansas and California about the living conditions and environments of both parents. After a hearing on May 14, 1962, the Chancellor granted custody of the little girl to her mother (appellee) for the summer months, permitting appellee to take her to California and requiring a $500.00 bond to guarantee the child's return to White County by August 15, 1962. On April 26, 1963, appellee again petitioned for change of custody, praying that she be granted her daughter's custody during the school year, giving appellant custody during the summer months. After another hearing the Chancellor on July 8, 1963, stating that 'it now appears that it would be for the best interest of said child that said custody provisions be revised,' granted appellee custody of the child during the school year in California and appellant custody in Arkansas during the summer. From this second order comes this appeal.

For reversal appellant urges that (1) there was no evidence upon which to substantiate the court's finding that the appellee should have custody of the child during the school years, and (2) that the trial court abused its discretion in changing custody of the child.

We have no doubt of appellant's love for his daughter. Testimony reveals that appellant cared for her as a baby while appellee worked, before the parties separated. The Arkansas Welfare Department report indicates that at a brother's behest, he quit a pipe-line job in Michigan so that he could help his aged parents raise his daughter. Obviously his parents love their granddaughter Alicia and want her to remain with them. Appellant lives with his parents in a six-room farm home about three miles from Searcy which they rent for $15.00 a month. In addition to appellant, Alicia and the elderly parents, the family circle is completed by a divorced brother and an unmarried sister and her small daughter. Appellant shares a bedroom with his brother and Alicia shares a bedroom (which was once the front hall) with her grandparents. The home is on a recently-paved road and has electricity, telephone and butane heat although there is no running water or indoor toilet facilities. A school bus stops at the house. While appellant's parents have little or no formal education, appellant completed fourth grade and his unmarried sister finished the ninth grade. They testified that appellant would help Alicia with her school work as long as he could and his sister would help her thereafter. At the time of the first hearing the brother and sister were working steadily and the parents were receiving Social Security, Old Age Assistance and commodities. After not working appreciably (other than playing fiddle in a band) for several years, appellant started working at Harding College as a yard man and janitor just before the first hearing and was still so employed a year later at the second hearing. Although appellant's parents are members of a church, they rarely attend. The testimony indicates that Alicia was taken to church infrequently.

The picture of appellee's environment is not as complete; however, perusal of appellee's testimony laid to rest our wonder that she had not sought custody sooner, when she testified that during the first two years in California there was no money to come to Arkansas, hardly enough to pay for food and rent, and that after her son was born he became ill with pneumonia and required long and expensive hospitalization. Appellee and her husband are both steadily employed, have a modern home in a pleasant residential neighborhood close to schools. They own a motor boat and go camping about once a month during the summer. They belong to the Dominicus Methodist Church which they attend fairly regularly, as the children attend Sunday School. The testimony shows that appellee's husband is as anxious as appellee to have Alicia's custody and raise her with her half-brother.

On this point, it has been well stated that:

'In these matters the desire of the parent for the child, which is a natural emotion, is secondary. Children of tender ages are but helpless hostages given to fortune in an environment or condition which is not of their making and in which they would be helpless indeed were it not for the conscience of Chancery.' Bounds v. Dunn, 234 Ark. 515, 353 S.W.2d 20.

It is axiomatic that our concern, as is the Chancellor's,...