Weatherton v. Taylor
| Decision Date | 26 June 1916 |
| Docket Number | 82 |
| Parties | WEATHERTON v. TAYLOR |
| Court | Arkansas Supreme Court |
Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor reversed.
Decree reversed and cause remanded.
Manning Emerson & Morris, for appellant.
1. The decree is a final order within the meaning of our statute. 52 Ark. 224; 88 Id. 590; 100 Id. 496; 25 Id. 420; 28 Id. 92; 44 Id. 46; 30 Id. 73; 79 Id. 473; 28 Id. 92; Kirby's Dig., § 1188.
2. The decree was erroneous because (1) the court was without authority to make the order after term time touching the custody of children. Kirby's Dig., § 2681; Ib. 2683; 40 S.E. 335; (2) because there is no evidence of change of conditions. 38 Ark. 119; 98 Id. 193; 45 Ark. Law Rep. (No. 11) 594; 95 Ark. 355; 66 S.W. 414; 65 P. 546; 82 Id. 177; 8 Ohio Ct. Rep. 87; 74 Ia. 681, 39 N.W 102; 50 W.Va. 113, 40 S.E. 335; 68 S.W. 753; 39 N.W. 102.
3. If not a final order, the decree should be quashed as one made without authority. Kirby's Dig., 1186; 101 Ill.App. 187; 11 Ill. (11 Peck) 43; 70 Ill.App. 572; 15 How. Pr. 167; 151 S.W. 786. The precise question was involved in 86 Ark. 64.
Grover T. Owens, for appellee.
1. The order was merely interlocutory--not final. Kirby's Dig § 1188; 8 Wend. (N. Y. ) 219; 93 Md. 97; 9 W.Va. 26; 52 Ark. 224; 113 Id. 185; 92 Id. 174; 100 Id. 496; 45 A. L. R. 11; 142 P. 918.
2. The court had authority to make the order. 82 S.E. 119. No abuse of discretion is shown. 9 R. C. L. 286, 291.
3. If the order can not be appealed from it should not be quashed as on certiorari.
OPINION
Appellant and appellee were formerly husband and wife, but in the year 1912 were divorced by a decree of the chancery court of Pulaski County. There is a child, the issue of said intermarriage, a girl, who was about three years of age at the time the divorce was granted, and the chancery court in its decree awarded the custody of the child to appellant, the father. There was a clause in the decree reciting that the court retained jurisdiction over the custody of the child for the purpose of making further orders from time to time as might be considered proper upon consideration of the circumstances. Appellant has continued to reside in the city of Little Rock, and resides here now. Appellee removed to Dallas, Texas, and is living there now.
Each of the parties has married again, and appellee filed a petition in the chancery court of Pulaski County on May 25, 1916, asking that the custody of the child be awarded to her during the summer vacation and that she be permitted to take the child with her to her home in Dallas. It is alleged in the petition that appellee has been married for the past four years and has a comfortable home in Dallas, and that she and her husband are capable of taking proper care of the child. Appellant filed an answer, denying that appellee has a suitable home in Dallas, or that she is a suitable person or is of sufficient financial ability to take proper care of the child. Without hearing any testimony, and over objections of appellant, the court rendered a decree awarding the custody of the child to appellee "until the further orders of this court, but not later than one week before the opening of the public schools in the city of Little Rock, Arkansas, in the fall of 1916." The decree further specified that appellee could take the child with her to Dallas, but she was required to execute a bond in the sum of one thousand dollars, conditioned that she would return the child to the custody of appellant when ordered by the court, not later than one week before the opening of the public schools. An appeal has been duly prosecuted to this court, and an order was made by one of the judges of the court superseding the decree of the chancery court. Said order of supersedeas has been extended by this court until the cause can be heard on its merits.
The first question presented is whether or not the order of the chancery court temporarily transferring the custody of the child from appellant to appellee, and permitting the latter to remove the child beyond the jurisdiction of the court, is a final order so as to be appealable. We are of the opinion that the order is final in the sense that the complaining party has a right to prosecute an appeal to this court. The chancery court has a continuing power with respect to the custody of the child, even without a reservation in the decree, and any order which the court may from time to time make can be subsequently changed on sufficient showing of a change in the circumstances. An order of the chancery court with respect to the custody of a child is never final in the sense that it is unchangeable, but any change in the custody of the child deprives the parent who has the custody of a substantial right and the order may be appealed from.
When only property rights are involved in litigation, the court under some circumstances may impound the subject-matter of the litigation for the purpose of preserving it, and an order of that kind is interlocutory; but not so when the order concerns the custody of a child, for it is not the child itself that is the subject of the controversy, in a property sense, but the right to enjoy the privilege of having it in custody. When one is deprived of that right for any appreciable length of time, it is a final adjudication of the rights of the parties to that extent and an appeal may be prosecuted. An interlocutory order may be made relating solely to the right to visit a child without depriving the parent of the custody, and that sort of an order would not be final and appealable. But an order which deprives a parent of the custody of the child for any length of time is, as before stated, different in effect and constitutes a final order.
The only remaining question is whether or not the court erred in ordering the change in the custody without hearing proof on the issues presented in the pleadings. The contention of appellant is that the court committed error in making such an order without proof, and we are of the opinion that that contention is sound. While chancery courts possess a continuing power over the matter of custody of a child which has been awarded to one of the parents, it does not follow that an order changing the status can be made without proof showing a change in circumstances from those which existed at the time the original order was made. The original decree constituted a final adjudication that appellant, and not appellee, was the proper one to have the child, and before an order can be made changing the status...
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