Plum v. Plum ( 1972 )

Conley Byrd Justice.

In a 1969 divorce decree, custody of the parties’ three children was awarded to appellant Denna Plum. The eldest child, Connie Plum, age 14, elected to remain with her father, appellee James Plum. Thereafter the mother petitioned the court to permit her to remove the two younger children, Ricky, age 854 and Tanya age 314 to Hixson, Tennessee. Appellee resisted the motion and counterclaimed for a change of custody. After a hearing and an interview with the children, the chancellor awarded Ricky’s custody to the father and apparently granted permission to remove Tanya. Denna Plum appeals.

The record shows that following the divorce, appellant and the two younger children lived in Alma until appellant’s father died. Appellant then moved to her mother’s in Fort Smith. In May of 1970, appellant went to a Licensed Practical Nurse’s school and graduated on May 21, 1971. As an LPN in Fort Smith, she earns $2.32 per hour. In Hixson, Tennessee, she has a job paying $2.76 per hour and a place to live within walking distance of a school. On cross-examination it was established that Ricky flunked the second grade after he was moved from Alma to Fort Smith.

James Plum testified that he would be denied visitation rights if appellant were permitted to take the children to Hixson, Tennessee, because of the 700 mile distance. On cross-examination it was established that he did not attend church and would not require his children to attend. On one occasion appellee went to appellant’s home to pick up the children at 5:30 p.m., not knowing that the children had been attending Vacation Bible School. When appellant informed him that he could not take the children until after 10:00 p.m. because of the Bible School’s graduation exercises, appellee inquired of Ricky if he wanted to go or stay and upon being informed that he wanted to go, appellee then took the children over appellant’s protest.

Appellant’s mother testified that she planned to live with appellant in Hixson, Tennessee, and help care for the children. On cross-examination it appeared that the mother had had a stroke from which she had recovered except for some paralysis in her hand.

We pointed out in Johnston v. Johnston, 225 Ark. 453, 283 S.W. 2d 151 (1955), that the party seeking a change of custody must assume the burden of showing such changed conditions as would justify a modification in the min- or’s interest. The burden here was upon appellee, who sought the change in custody, to show such changed conditions as would justify modification of the decree. We can find no evidence to jusitfy the modification.

On the record made, appellant is obviously entitled to take the children with her to Hixson, Tennessee. Of course appellee will be entitled to reasonable visitation rights which must be adjusted to thet the circumstances.

Reversed and remanded.

Fogleman and Jones, JJ., dissent.