Wilder v. Garner

• Decision Date: 24 September 1962
• Docket Number: No. 5-2757,5-2757
• Citation: 235 Ark. 400,360 S.W.2d 192
• Parties: Irene WILDER et al., Appellants, v. Carnell GARNER, Appellee.
• Court: Arkansas Supreme Court

Page 192

360 S.W.2d 192

235 Ark. 400

Irene WILDER et al., Appellants, v. Carnell GARNER, Appellee.

No. 5-2757.

Supreme Court of Arkansas.

Sept. 24, 1962.

Alfred Featherston, for Featherston & Featherston, Murfreesboro, for appellants.

Lindell Hile, Murfreesboro, for appellee.

McFADDIN, Justice.

On this appeal a decree of the Chancery Court is consolidated with a judgment of the Probate Court, since the question common to both cases is whether, under the facts here presented, limitation and/or laches released the father from paying anything for the support of his minor children.

In 1945 the Pike Chancery Court awarded Mrs. Irene Garner (now Irene Wilder, one of the appellants) a divorce from Carnell Garner, the appellee; and the decree also awarded the mother the care and custody of the two minor children, a boy named Jesse, then three years of age, and a girl named Nellie, then fifteen months of age. At the time of the divorce, Carnell Garner was incarcerated in the Federal Penitentiary at Leavenworth, Kansas, for conviction of a felony, and the divorce decree contained no provision requiring the father to support the minor children. After completing the penitentiary sentence, Carnell Garner returned to Pike County, and in 1953 was adjudicated insane and committed to the State Hospital, where he still remains. Mrs. Garner, now Mrs. Irene Wilder, has all the time, since the divorce decree of 1945, had the care and custody of the two children, who are still minors.

In 1961 some Garner ancestral lands were sold in a partition proceeding in Pike County, and the sum of $1357.70 was the portion due to Carnell Garner. To partially repay herself for the support of the minor children, Mrs. Irene Wilder undertook to obtain this money: (a) by filing in the original divorce proceeding a petition asking the Chancery Court to award her money for support of the children; (b) by intervening in the partition proceeding and impounding the Carnell Garner money; and (c) by having the Pike Probate Court appoint a guardian for Carnell Garner and then filing in that proceeding petition for future support money for the two minor children. The Chancery and Probate cases were tried at the same time, and both Courts held that all the claims against Carnell Garner were barred by limitation and laches. ¹

We conclude that the Chancery Decree should be reversed. We have a number of cases which bear on some of the facets of the points here under consideration. A few of these cases are: Holt v. Holt, 42 Ark. 495; Daily v. Daily, 175 Ark. 161, 298 S.W. 1012; McCall v. McCall, 205 Ark. 1123, 172 S.W.2d 677; Worthington v. Worthington, 207 Ark. 185, 179 S.W.2d 648; Dalrymple v. Dalrymple, 221 Ark. 260, 252 S.W.2d 823; Payton v. Payton, 230 Ark. 348, 322 S.W.2d 588; and Wilson v. Wilson, 231 Ark. 416, 329 S.W.2d 557. Ever since Holt v. Holt, supra, decided in 1883, the general rule in Arkansas has been that, if a divorce decree grants the custody of a minor child to the mother but makes no provision for the child's support, and the mother thereafter supports the child or supplies it with necessaries, the father, if financially able, should repay the mother for the reasonable value of the supuport or necessaries thus furnished. ² In Holt v. Holt, supra, as here, the original divorce decree was silent as to support, and the mother, who had supported the children, was allowed to file in the original divorce proceeding a petition for amounts expended for child support, and also to obtain an order for future support payments.

In the case at bar, the appellee pleaded laches; but we find nothing to support such a plea. The mother proceeded when the father had financial ability to support the children. The case of McCall v. McCall, supra, points to such a course. The appellee also pleaded limitations; but as long as the children are minors the obligation is a continuing one on the father to support the children, and during such period of minority limitations could not bar all amounts. The present case is different from the case of Brun v. Rembert, 227 Ark. 241, 297 S.W.2d 940, and also different from the case of Payton v. Payton, 230 Ark. 348, 322 S.W.2d 588, in each of which the effort to recover for support was made long after the child became of age. Here, both of the children are still minors.

The question that gives us most serious concern is the period of time for which the mother may recover for the reasonable and definite amounts she has expended for the support of the children. As heretofore stated, she filed this proceeding on March 10, 1961; and the question is whether she can recover for the three years preceding such filing, or for the five years preceding such filing. In cases where the parities had a written contract for support, and in cases wherein the original divorce decree contained language requiring support, we have held that the mother may recover the reasonable and necessary amounts expended by her for child support within the 5-year period. Such holdings were because the contract sued on was a written instrument (§ 37-209 Ark.Stats.), or because the decree was an 'action not otherwise provided for.' (See § 37-213 Ark.Stats.) But in the present case there was no provision in the original divorce decree for support, and the obligation on the father is one 'express or implied not in writing' (§ 37-206 Ark.Stats.); and would, therefore, come within the 3-year statute. See Davis, Admr. v. Herrington, 53 Ark. 5, 13 S.W. 215.

There is one other possible limitation on the period of time for which Mrs. Wilder may recover from the impounded fund. A chancery court will order a father to contribute to...