Daily v. Daily
298 S.W. 1012
Ark.
1927
Check Treatment
Hart, C. J.,

(after stating the facts). In Holt v. Holt, 42 Ark. 495, it was held that a court of equity will, at a subsequent term, entertain the petition of the mother to recover from the father her reasonable and proper advances for the support of their minor children since the divorce and for an order for their future support. In that case, at the time of the rendition of the decree of divorce, the care and custody of the two younger children was awarded the mother, but no provision was made in the decree as to who should defray the expenses of their support and education while they were in charge of the mother. The court held that the father was bound to maintain the children as long as they were too young to earn their own livelihood, and that the fact that the mother had been awarded their custody in the divorce decree did not relieve the father from his obligation to support them.

In a case-note to Spencer v. Spencer, 97 Minn. 56, 7 Ann. Cas. 901, at page 903, 105 N. W. 483, 2 L. R. A. (N. S.) 851, 114 Am. St. Rep. 695, it is said that a majority of the cases hold that, where the divorce decree awards the custody of the children to the mother but makes no provision for their maintenance, the father’s legal liability to support his children still continues, and a reasonable sum may be recovered for their support.

It follows that the plaintiff had a right to maintain this action against the defendant for the custody of their minor child and for her fntnre support and education until she arrived at full age. In this connection it may he said that, whatever the result of the agreement between the husband and wife with respect to the custody and support of their minor child, such agreement does not affect the right of a court of equity to award the custody of the child to either parent and to make reasonable provision for its support and education. The reason is that the public has an interest in the matter, and that the interest of the child is the paramount consideration of the court.- In this view of the matter the court did not err in awarding the custody of the child to the mother, for she had arrived at an age when her wishes should be considered in the matter, and she preferred to live with her mother because her father had married again.

On the question of support and education of the minor, we are of the opinion that the allowance of twenty dollars per month, as fixed by the chancellor, for the future support and education of the minor while she is attending school, was reasonable, and it will be allowed to stand. The father testified that his orchards had depreciated in value so that at present they did not yield him any income. He stated that he only received an income of twenty dollars per month from his property. This, we think, is a reasonable sum to be devoted to the education of his daughter during her minority, leaving him to support himself.

We think, however, that the chancellor erred in rendering judgment against him for one hundred dollars for past support, for the reason that we think that the allowance of twenty dollars against him was a sufficient consideration, when his state of health and financial ability is considered.

The result of our views is that the decree of the chancery court will be modified so as to require the defendant to pay to the plaintiff the sum of twenty dollars monthly, commencing on the 15th day of November, 1926, for the support and education of said minor, Anna Daily, and the decree of the chancery court awarding, the custody of said minor to the plaintiff will he affirmed. The cost of this appeal willbe taxed against the defendant.

It is therefore ordered that the decree of the chancery court he modified in accordance with this opinion, and, as modified, it will be affirmed.