Beene v. Beene , 64 Ark. 518 ( 1898 )

Bunn, C. J.

This is a bill by the wife against the husband for divorce, for alimony, and for the custody of the children.

The defendant filed his answer and cross-bill, and the prayer of plaintiff for divorce was granted. Alimony was allowed to the extent of one-third of the ascertained value of defendant’s estate, after deducting his indebtedness; and, of the four children, the plaintiff was awarded the custody of the two girls, Lena A. Beene and Mary Grade Beene, aged at the time of the hearing, respectively, six years and one year; and the defendant was awarded the custody of the two boys, W. Ray Beene and Morgan Beene, aged at the time, respectively, eight and four years. And the court ordered that “both plaintiff and defendant should permit the other to visit and see the children, respectively awarded to them, at all reasonable times.” And the cross-bill of defendant was dismissed.

From this decree as to alimony, and the awarding the cus - tody of the two boys to defendant, the plaintiff appealed; and the defendant took a cross-appeal from the decree dismissing his cross-bill, and on the question of alimony, and awarding the custody of the two girls to the plaintiff. This cross-appeal was dismissed, on motion of appellee, before submission.

The evidence adduced in the case is certainly not very complimentary to either party in respect to their treatment of, and deportment toward, each other, showing an almost total absence of that love and affection which should characterize those sustaining the marital relation to each other; and yet there is little to aid üs in determining what has been, or what probably will be, the conduct of either in the treatment of their children. There is little from which we could infer any unusual presence or absence of parental love and affection for the children, on the part of either. The consequence is, the proper disposition of their children can only be determined from circumstances such as the physical condition and ability of the parents to care for their children, and the superior qualification for such duties which nature has conferred upon the one or the other.

The father (the defendant) is shown to be in most wretched physical health, and consequently laboring under the usual infirmity belonging to such state of health,—irritability and impatience. The mother, on the other hand, appears to be the very opposite. The elder of the boys, now about nine years old, has probably arrived at that age when a father’s peculiar charaeu«i- of oversight and control may begin to be more necessary than the mother’s, and for that reason we do not desire to disturb the directions of the chancellor as to him; but the younger of the boys, not yet five years old, it seems to us, is in special need, of a mother’s care and control,—that care and control which ¿ father is ill suited by nature to exercise. We think the mother should have the present custody of this little boy; but, whatever orders are made in this regard, they should be expressly temporary in ther operation, and subject at all times to be revoked or modified, to the end that the care and control of the child may be under the strict supervision of the court.

As to the question of alimony, that is settled by statute. See section 2517, Sand. & H. Dig. The legislature seems to have enacted that statute for the purpose of putting an end to all after controversies as to dower rights, and to settle the matter when a divorce is granted dissolving the marital bonds. Hence the allowance to the divorced wife, who is entitled at all, is exactly or substantially the same as would be her dower interest in case of the death of her husband; that is to say, one-third for life of all the real estate of which he has been seized of an estate of inheritance at any time during the marriage, except such as she has relinquished in due form. The court therefore erred in decreeing her only one-third of the remainder of his estate after deducting the amount of his debts, and should have alloted her one-third the value of his personalty absolutely, without taking his indebtedness into consideration, and should have given her one-third of his realty for her natural life,, and ordered otherwise as the statute provides.

For these errors the decree is reversed, and the cause remanded, with directions to modify the decree appealed from as herein indicated.