author: Ernie E. Wright, Chief Judge. George Howard, Jr., Judge,

text:
    Howard LYBRAND v. ARKANSAS OAK FLOORING CO. and LIBERTY MUTUAL INS. CO.
    CA 79-52
    588 S.W. 2d 449
    Opinion delivered October 3, 1979
    and released for publication October 31, 1979

      Joseph W. Swaty, for appellant.

      Coleman, Gantt, Ramsay & Cox, by: Martin G. Gilbert, for appellee.
   Ernie E. Wright, Chief Judge.

This appeal of a Workers’ Compensation case to the Arkansas Supreme Court has been assigned to the Court of Appeals pursuant to Rule 29(3).

The administrative law judge found that Howard Lybrand, appellant, did not sustain an injury arising out of and in the course of the employment with the appellee. The full Commission and the circuit court agreed.

The records show appellant, age 64, had worked for respondent for 36 years. He had driven a truck, a dozer and a front-end loader. Prior to the incident out of which the claim arose, he was hospitalized in October, 1976 under the care of Dr. J. William Nuckolls at Pine Bluff with abdominal complaints. Exploratory surgery was done on November 4, 1976 and a small aneurism of the aorta was found and repaired. He was hospitalized twice before for ulcers and on one of the occasions he hemorrhaged. His right eye had previously been removed because of cancer. After surgery Dr. Nuckolls on December 20, 1976 wrote a memo that appellant should not return to work before February 1, 1977.

Appellant returned to work on February 1, 1977 and on February 14, 1977, while operating a font-end loader moving logs the right front wheel dropped into a little hole, and the steering wheel jerked his arm. He experienced pain in his neck and in the back of his head. He told his foreman he had hurt his shoulder and neck and would have to go to the doctor. He went to Dr. Carter in Sheridan who made arrangements for him to be hospitalized at Pine Bluff that same day under the care of Dr. Nuckolls, the internal medical specialist who had previously cared for appellant. His complaint as shown by the hospital admission report was weakness in his left side which developed while at work that morning. No mention was made of any injury in the admission report. He had mild hypertension at the time of admission. Dr. Nuckolls called on Dr. P. B. Simpson, Jr. for consultation and after observation of the patient and from tests results available Dr. Simpson and Dr. Nuckolls agreed appellant probably had a small stroke involving his right middle cerebral artery. He was put to bed and given medication to decrease swelling in his head caused by the brain damage and was discharged March 2, 1977. The final diagnosis by Dr. Nuckolls was right middle cerebral arterial occulsion affecting his left side and hypertension. Dr. Nuckolls testified in a deposition that he thought appellant probably suffered a stroke at his work on February 14, 1977, but doubted it was causally related to his employment and in his opinion it is highly unlikely driving a font-end loader which hit holes and jarred would be severe enough to bring about a stroke. He stated if a person gets a “fairly severe blow” to the head or neck that ruptures a blood vessel going to the head a cerebrovascular accident could develop. There was no evidence that appellant received a blow to his head or neck. Dr. Nuckolls testified in his opinion appellant likely would have experienced the stroke when he did wherever he had been and whatever he might have been doing.

Appellant was later hospitalized on March 11,1977 under the care of Dr. Herbert R. Wineland. This was the first time Dr. Wineland saw appellant. He could find no evidence of back or neck injury of the type that could cause a cerebral vascular incident in his opinion. He stated that trauma cannot be the underlying cause of cerebral thrombosis, that the most trauma can do is perhaps aggravate such a condition, and that it is extremely difficult to identify trauma as even an aggravating cause. He stated he would not disagree if Dr. Nuckolls who saw appellant immediately after the February incident expressed the opinion claimant likely would have suffered the stroke whether he had been at work or at home.

There was a complete absence of any medical expression of opinion that there was a causal relationship between any occurrence at work and the stroke for which appellant was hospitalized and treated.

The burden of proof was on appellant to establish that he suffered disabling injury arising out of his employment. The decision of the Commission found that the burden had not been met, and on appeal this court only determines whether there is substantial evidence to support the finding of the Commission. We find that there was in fact substantial evidence to support the Commission’s finding. Ruby Turner v. Lambert Construction Company, et al, 258 Ark. 333, 524 SW 2d 465.

The appellant urges six points for reversal which will hereafter be separately discussed.

I

Appellant contends the case should be reversed because allegedly the Commission made no findings of fact and there was no substantial evidence to support the decision.

In affirming the decision of the administrative law judge, after reviewing the entire record, the Commission in effect adopted the findings and conclusions of the administrative law judge. The Commission’s action made the findings and conclusions of the administrative law judge also the findings and conclusions of the Commission. The Commission’s opinion concluded the preponderance of the evidence showed the cerebral vascular condition did not arise out of and in the course of the employment. There is no merit to the contention that there is no substantial evidence to support the decision of the Commission. On the contrary, there is substantial medical evidence to support the finding that appellant failed to establish he sustained a compensable injury arising out of his employment, and there was a lack of medical evidence establishing a causal connection between appellant’s stroke and his employment. Allied Telephone Co. v. Rhodes, 248 Ark. 677, 454 S.W. 2d 93.

II

Appellant contends the circuit court erred in failing to make any findings of fact in simply affirming what appellant refers to as the administrative law judge’s opinion. The judgment of the circuit court affirmed the decision of the full Commission. The fact that the judgment of the circuit court was likewise in accord with the decision of the administrative law judge is of no consequence. We find no error in the actions of the court.

Ill

Appellant argues that all “doubtful” cases should be resolved in favor of the claimant. This principle cannot be extended to satisfy the requirement of proof that a claimant has suffered a compensable disabling injury arising out of his employment. Liberality in the application of the Workers’ Compensation Act does not extend to allowance of claims absent proof of one of the essential elements. Causation is one of the essential elements. Ark. Stat. Ann. § 81-1302 (d) (Repl. 1976). None of the medical evidence offerred in this case expresses an opinion that appellant’s stroke was caused by anything that happened during the course of his work. On the contrary, the medical evidence tended to rule out a causal relationship between the accident described by appellant and the stroke. The cause of a stroke, which is the occlusion of a blood vessel in the brain, is a type of medical problem susceptible of determination only by expert medical opinion, as opposed to some type of injury, such as a broken leg, that can be observed by the average lay person.

IV

Appellant contends the circuit court erred in refusing to reverse the Commission and that apparently the court thought it did not have the authority to reverse the Commission.

We hold there was substantial evidence to sustain the decision of the Commission and it was the duty of the Court to affirm. Ark. Stat. Ann. § 81-1325(b) (Repl. 1957).

In the case of Allied Telephone Co., et al v. Leo Rhodes, claimant sought compensation alleging injury of two vertebrae while moving heavy equipment.

There was opinion evidence by a chiropractor indicating two vertebrae had been fractured. Dr. Robert Watson, who later examined claimant and performed surgery for his problem, testified the lifting incident described by claimant was not a precipitating factor in his final problem, but was a coincidental factor, and that incident to the surgery he was able to actually see the content of the bone and determine it was diseased bone rather than fractured. He found no evidence of a crack or healing crack in the vertebrae involved. The Commission had denied the claim and the circuit court reversed and allowed the claim. On appeal the Supreme Court held there was substantial evidence to support the Commission’s findings, reversed the judgment of the circuit court and ordered reinstatement of the order of the Commis-sion denying compensation. The court pointed out it was not proper for the circuit court to weigh the testimony but only to determine whether there was substantial evidence to support the findings of the Commission.

V

Appellant contends the court erred in affirming the Commission because the Commission failed to make any detailed findings.

We have pointed out above the action of the Commission in affirming the decision of the administrative law judge had the effect of making the findings of the administrative law judge the findings of the Commission. It is clear in the Commission’s opinion that the Commission concluded the evidence failed to establish the necessary causation connecting appellant’s cerebral vascular incident with his work. Mere coincidence is not to be equated with causation. Clark v. Peabody Testing Service, 256 Ark. 489, 579 SW 2d 360 (1979).

VI

Appellant contends the Commission acted without or in excess of its powers and that it has the power only to decide cases in accord with court decisions.

We do not find the decision of the Commission to be in conflict with Supreme Court decisions. It was the duty of the Commission to determine the issue of causation and there is substantial evidence to support the decision that causation was not established.

The judgment of the circuit court is affirmed.

Howard, J., dissents.

George Howard, Jr., Judge,

dissenting. It is universally recognized that the findings of the Workmen’s Compensation Commission will be affirmed when supported by substantial evidence. Substantial evidence is nothing more than competent, authentic and trustworthy evidence supportive of the Commission’s holding. Indeed, evidence which is speculative and uncertain in scope and range does not meet the substantiality standard.

A careful review of the record discloses that the Commission’s holding denying the claimant — a 63 year old white male who has been employed by respondent for 36 years and who was released prematurely, from a previous injury, to return to his employment — benefits on the ground that claimant’s present condition — a stroke resulting in total disability when one wheel of a front-end loader dropped in a hole, a machine used for unloading logs, which claimant was operating jerking claimant’s arm and neck causing claimant to cease work immediately — would have occurred ultimately, whether on or off the job, is not supported by persuasive and indisputable evidence.

Moreover, to futher assert that claimant failed to meet the burden of proof to establish the causal connection between the trauma and the stroke resulting in his immediate disability is simply begging the issue. It is plain that in determining whether a disputed claim under the Worker’s Compensation Law should be allowed, a liberal interpretation is given in favor of claimant.

Accordingly, I would reverse the holding of the Commission and the Grant County Circuit Court.


source: Caselaw Access Project

author: Marian F. Penix, Judge.

license: Public Domain

text:
    Charlie Ike HIGGINS v. Katie HIGGINS
    CA 79-121
    588 S.W. 2d 454
    Opinion delivered October 3, 1979
    [Rehearing denied November 5, 1979]
    and released for publication November 5, 1979

      Kenneth C. Coffelt, for appellant.

      Gibson & Crow, for appellee.
   Marian F. Penix, Judge.

This case was appealed to the Arkansas Supreme Court and by that court assigned to the Arkansas Court of Appeals pursuant to Arkansas Supreme Court Rule 29(3).

This appeal arises from an award of separate maintenance to a woman the defendant says was never his lawful wife.

Charlie Ike Higgins and Katie Higgins were married in Oklahoma on April 4, 1975. They lived together in Benton, Arkansas for two and one half years. Charlie then left Katie, stating that he just did not wish to be tied to one woman. Katie filed for divorce but dismissed the suit when Charlie returned. They lived together for three months before separating again. Katie then filed this suit seeking separate maintenance and support.

At the trial, the defendant introduced a divorce decree granted to Margie Higgins on April 29,1975 from Charlie Ike Higgins. The defendant contends that since there had been no divorce from his first wife at the time of his marriage to the plaintiff, the marriage was absolutely void. Hence, no award of separate maintenance could be made, there being no marital status from which to award it. The chancellor, declining to accept the defendant’s position, ordered the defendant to pay the plaintiff $241 per month in support.

The Court is going to grant separate maintenance. These parties have lived together as man and wife, even though through a technicality the defendant herein was not divorced until some few days after the marriage. So, at least they’ve held themselves out as man and wife and lived together as man and wife,and it’s the Court’s finding that he is obligated to support her. . .

Arkansas does not recognize common law marriage. Furth v. Furth, 97 Ark. 272, 133 S.W. 1037 (1911). The mere fact that the parties held themselves out as husband and wife will not support an award of separate maintenance. This is not the situation in this case. We hold the husband to be es-topped from asserting the invalidity of the marriage to Katie. We believe the holding and principles enunciated in Fox v. Fox, 247 Ark. 233, 444 S.W. 2d 865 (1969) are persuasive. In Fox, a husband and wife were married for seven years. The wife was awarded an uncontested divorce in May of 1945. Two months later, the husband asked for a reconciliation. The couple resumed living together. The husband informed his wife that he had had the divorce set aside. The couple remained together until the wife filed suit for divorce some 22 years later. At the trial, the husband stated that they had never remarried after the divorce. Hence, there was no marriage to dissolve and no marital contract from which to award alimony. The Arkansas Supreme Court found that equity demanded the husband be estopped from asserting the invalidity of the marriage.

. . .There is no evidence in the record inconsistent with Dorothy’s belief that she was legally married to Walter, and Walter has offered no proof tending to show that Dorothy did not believe they were still legally married, except her long toleration of his own philandering activities.
A legal common-law marriage cannot be entered into in Arkansas, nor can one be created by estoppel, but equity should, and we hold that it does, under the facts in this case, require that Walter be estopped to deny that the divorce decree was set aside or “thrown out” before it became final, and he is estopped to deny such rights as Dorothy would be entitled to had a divorce decree never been entered.

Further support for this position is given in the language quoted in Fox from the California case Spellens v. Spellens, 49 Cal. 2d 210, 317 P.2d 613 (1957).

The theory is that the marriage is not made valid by reason of the estoppel but that the estopped person may not take a position that the divorce or later marriage was invalid ... we think it may now be stated that the general public policy in this jurisdiction, as judicially interpreted, no longer prevents application in annulment actions of the laches and estoppel doctrines in determining the effect to be given such divorce decrees . . .Rather it is that defendant by reason of his conduct will not be permitted to question its validity or the divorce; so far as he is concerned, he and plaintiff are husband and wife ... It may be noted also that we are not recognizing a common-law marriage which does not exist in this state for the theory is that the marriage is not validated; it is merely that defendant cannot contest it.

Charlie Higgins, by reason of his conduct, is estopped to assert the voidness of his marriage to Katie.

The defendant has argued that Katie knew of his previous marriage and the fact that it had not been legally dissolved. A marriage is presumed to be valid. The burden of proof is on the one attacking the validity of the marriage. There is a presumption when a man and woman are married, and one has a living spouse, that the former spouse has been divorced at the time of the marriage. Lathan v. Lathan, 175 Ark. 1037, 1 S.W.2d 67 (1928); Estes v. Merrill, 121 Ark. 361, 181 S.W.2d 136 (1951). This presumption also has a corollary. It is presumed that the parties entered the marriage in good faith. The defendant contends Katie Higgins has not proven she did not know he was still lawfully married to Margie Higgins. This was not her burden. Fox, supra. No evidence was introduced by the defendant to show Katie’s lack of good faith.

The defendant cites Bruno v. Bruno, 221 Ark. 759, 256 S.W.2d 341 (1953). Bruno is distinguishable from the case at hand. The opinion reflects that the record, was replete with evidence that both parties knew of the previous marriages of each spouse and the fact that the divorce had not been granted.

We are aware of cases which have denied the second wife an interest in the estate of her deceased “husband”. Cooper v. McCoy, 116 Ark. 501, 173 S.W. 412 (1915); Evatt v. Miller, 114 Ark. 84, 169 S.W. 817 (1914). These cases, however, can be distinguished. In each instance, a third parly attacked the validity of the marriage for the purpose of denying the second wife an interest in the estate. The husband was not the party using the invalidity of the marriage as a shield.

Decree affirmed.


author: George Howard, Jr., Judge. Marian F. Penix, Judge, Ernie E. Wright, Chief Judge, M. Steele Hays, Judge,

text:
    Donna PERKINS and Charlene DIGGS v. Calvin Ronald PERKINS
    CA 79-111
    589 S.W. 2d 588
    Opinion delivered October 3, 1979
    [Petition for review denied November 13, 1979.]

    and released for publication November 16, 1979

      McMillan, Turner & McCorkle, by: Toney D. McMillan, for Charlene Diggs.

      B. W. Sanders, for Donna Perkins.

      Henry Morgan, for appellee.

         Perkins & Diggs v. Perkins, 267 Ark. 112, 589 S.W. 2d 29 (1979).

   George Howard, Jr., Judge.

This is a child custody case involving a five year old boy. The litigants are the father, mother and maternal grandmother who was awarded custody on May 10, 1976, under a decree terminating the marriage of the mother and father.

The question presented for our determination is whether the trial court’s decree of November 11, 1978 — which awards custody of the child to the father — is supported by a preponderance of the evidence.

THE FACTS

On May 10, 1976, Donna Perkins obtained an uncontested divorce from Calvin Ronald Perkins. By agreement of the parties, custody of their three year old son was awarded to Mrs. Charlene Diggs, the maternal grandmother, with reasonable visitation rights accorded to Donna and Ronald. At the time, Donna was a high school student residing with her mother, Mrs. Diggs, and Ronald was stationed with the United States Air Force in Guam.

On March 22, 1978, Ronald petitioned the Clark County Chancery Court for custody of his son contending that since the entry of the order awarding custody to Mrs. Diggs “circumstances have materially changed” and [t]hat . . . Petitioner is now remarried and is able to provide the minor child with a good home and all the benefits which the minor child needs to enjoy a happy and productive life; . . . Petitioner and his wife are both fit people to now have custody of the minor child, and that. . . Petitioner has proper sources to provide for the needs of the minor child, ...”

On March 23, 1978, Donna and Mrs. Diggs filed their joint answer denying that Ronald should be awarded custody contending that Ronald was still in the military service and, consequently, subject to constant “moving around and that his wife is still a teenager and does not have the experience nor maternal concern” that is afforded by both the natural mother and the maternal grandmother.

Donna also filed her petition for change of custody, alleging:

That since the Decree of Divorce herein on May 10, 1976, your Cross-Petitioner, Donna Lee Perkins has materially changed her economic ability to care for said child, has matured a great deal, being now twenty-three years of age and stands daily in the position of mother to said minor child and that the custody given to her mother, Charlene Diggs, was for the purpose of allowing both parents to grow up and mature and that she has now done so and should therefore be awarded permanent care, custody and control of this minor child, Ronald Keith Perkins.

After conducting a meticulous and searching trial of the issues, the trial court dismissed the petition of Donna for want of equity and:

1. Awarded custody of Keith to the father, Ronald Perkins, with reasonable visitation rights, including specified holidays and two months with the grandmother during the summer, to the mother and grandmother.

2. Held that the child could not be moved from the jurisdiction of the court without the court’s permission.

3. Held that in the event the father should be required to perform military duties outside the continental shores of the United States, the court would make a new determination regarding custody of Keith.

4. Reserved jurisdiction of the case and the right to change the decree for good cause.

Appellants rely essentially upon the following points for reversal of the trial court’s decree:

1. The trial court erred in finding that a change in circumstances warranted the change in custody.

2. The trial court erred in awarding custody of the minor child to the father.

3. The trial court erred in ruling that evidence of incidents which occurred prior to the divorce was inadmissible on the grounds that such evidence should have been presented at the original divorce hearing.

THE DECISION

As in most child custody proceedings, the testimony offered by each litigant is sharply controverted by the opposing party. Witnesses called by a litigant expound and emphasize the virtues of one, while articulating the vices and deficiencies of the other. Thus, it is abundantly clear that credibility is crucial and pivotal in evaluating and according the proper weight to the testimony offered.

It is, perhaps, expedient to set out immediately certain basic and fundamental rules of law that are controlling in child custody proceedings.

In Baker v. Durham, 95 Ark. 355 (1910), the Arkansas Supreme Court observed:

... [A]s between the parent and grandparent, or anyone else, the law prefers the former unless the parent is incompetent or unfit, because of his or her poverty or depravity, to provide the physical comforts and moral training essential to the life and well being of the child. It must be an exceptional case where the evidence shows such lack of financial ability or such delinquencies in character on the part of the father as to imperil the present and future welfare of his child before a court of chancery will deprive him of the duty and privilege of maintaining and educating his child, and of the pleasure of its companionship. See Also: Wofford v. Clark, 82 Ark. 461 (1907).

In the case of Kirby v. Kirby, 189 Ark. 937, 75 S.W. 2d 817 (1934), our Supreme Court stated:

It is the well-settled doctrine in this state that the chancellor, in awarding the custody of an infant child or in modifying such award thereafter, must keep in view primarily the welfare of the child, and should confide its custody to the parent most suitable therefor, the right of each parent to its custody being of equal dignity.

See also: Digby v. Digby, 263 Ark. 813, 567 S.W. 2d 290 (1978); Walker v. Walker, 262 Ark. 648, 559 S.W. 2d 716 (1978).

In Phelps v. Phelps, 209 Ark. 44, 189 S.W. 2d 617 (1945), the Court made the following comment:

... If the welfare of the child so requires, the decree may be modified without a change of circumstances, on the presentation of facts which although existing at the time of the original decree were not then presented or considered. The welfare of the child is the controlling consideration, and whenever it is shown that it is best for the welfare of the child that it be transferred from the custody to which it was awarded, the court will in its discretion modify the decree; otherwise modification is properly denied. The decree should not be modified merely to conform to the wishes of a parent, nor should it be modified for the reward or punishment of a parent, but the rights and wishes of the parents should, if possible, be considered. . . .

In Daily v. Daily, 175 Ark. 161, 298 S.W. 1012 (1927), the Supreme Court held:

. . . [W] hate ver 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. . . ,

The thrust of Donna’s argument for reversal may be briefly summarized as: While initial custody of Keith was awarded to the maternal grandmother, Mrs. Diggs, rather than to either parent — because neither parent, at the time, was capable of taking custody alone — she has now matured, is gainfully employed, is a responsible person and, as a matter of fact, has been the “de facto if not the de jure custodian of Keith since birth.” Thus, it would be to the best interest of the minor child for custody to be awarded to the mother; and that the trial court erred in dismissing her petition for want of equity.

The evidence, however, discloses that within a month after Donna’s divorce from appellee, she began dating Gary Barfield, a 17 year old fellow high school student. Gary testified while he considered Donna as his girlfriend before her divorce was final, he did not date her alone prior to the divorce. Gary admitted that he had lived with Donna in an apartment complex for a short period and that while Donna occupied the apartment, the police, at the request of Donna, broke into the apartment in order to get him to leave whereupon he advised the police of marijuana in a chest of drawers resulting in a possession charge lodged against Donna; that he and Donna were charged with theft of property and while Donna was not, in fact, guilty of the charge, she did enter a plea of guilty believing that she could not establish her innocence.

Moreover, Gary stated that Donna was accused of making harassment telephone calls to his aunt’s residence, where he once resided, and that his aunt had repeatedly requested Donna to cease making such calls; and upon her failure to do so, the aunt complained to and sought assistance from the police in seeking a solution to the problem. As a consequence of Donna’s promise — during a conference at the police station between the principals, including Mrs. Diggs — not to make any further calls, the charges were not pressed against Donna. Gary admitted, during the conference, that he had had sexual relations with Donna at the home of Mrs. Diggs, although Mrs. Diggs had requested him not to visit her home. This admission was made while Keith was present in the police station. However, it is not clear whether Keith was within hearing range at the time. Gary later repudiated the statement. Nevertheless, it is plain that Gary visited the home of Mrs. Diggs frequently and Keith is occasionally in the company of Gary and Donna in Mrs. Diggs’ home as well as outside the home.

In addition, Gary admitted that he was charged with thi offense of destruction of private property after he broke out a window in Mrs. Diggs’ automobile; that he left home because he could not get along with his parents.

It is readily obvious that while Gary is a young man and is very much Donna’s junior in terms of age chronologically, Gary has had quite an involvement with the police, which has, although more or less as a victim of circumstances, involved Donna equally as much.

The following exchange took place between the court and Gary:

THE COURT: She’s asking for custody of the child. Her mother presently has custody. If she obtains custody of the child will you still expect to be going with her and visiting with her?
WITNESS: Yeah.

On the other hand, Mrs. Diggs, the maternal grandmother, argues that a litigant seeking modification of a decree awarding custody of a minor child has the burden of proof of showing a change in conditions in order to justify a modification; that the evidence falls short of showing a change in the conditions of her home in any way that affects adversely the minor child.

First, and perhaps foremost, Mrs. Diggs acknowledged, on cross-examination, that when the initial custody was awarded to her, she was cautioned by the trial court that the order was temporary in scope and future circumstances would perhaps dictate a change.

While Mrs. Diggs argues that there have been no changes in the circumstances of her home warranting the trial court’s action in placing Keith with his father, we do not perceive the trial court’s decree resting exclusively on a finding that there has been a change in circumstances. It is plain that the trial court predicated its ruling essentially on what was for the best interest of the minor child. Nevertheless, we do not agree with Mrs. Diggs’ contention that there are no relevant changes in the circumstances. Briefly, it is clear that Mrs. Diggs was a party to the conference at the Gurdon Police Station during the encounter between Donna, Gary and his aunt; Mrs. Diggs testified that tempers were flaring during the conference and when asked if Keith was present, Mrs. Diggs responded that she gave him money to get a Coke, but didn’t have any idea where he was. Moreover, Mrs. Diggs also testified that Barfield had come to her home in an effort to see Donna numerous times and on one occasion, he appeared intoxicated.

It is undisputed that appellee has remarried; his wife is employed at the Francis Allen School for Exceptional Children and prior to this employment, she was employed at Educare for two years and has had further experience at an institution for retarded children. The present Mrs. Perkins emphasized that the children that she deals with are at a primary level and their ages are six through ten; she further emphasized that she is willing to look after and care for Keith who has a weight problem. The appellee has an apartment which has two bedrooms, thus, affording Keith an opportunity to have his own room, and is contemplating purchasing a home in a suburban area; appellee is a member of the United States Air Force and expects to remain at the air base in Jacksonville indefinitely. Appellee’s wife testified that while she and appellee have been married for one year, she has known appellee for approximately two years and has had the occasion to observe her husband and Keith and that it is her conviction that they have a good relationship. Moreover, she testified that her relationship with Keith is good and that Keith has accepted her. We think it significant to note that the trial court, in rendering his opinion, observed that he was persuaded that Keith needed a father’s image. Further, it is clear that the trial court was impressed with the secure and peaceful family life that exists between appellee and his present wife._

Appellants finally argue that the trial court committed reversible error in ruling that evidence of incidents relating to appellee’s conduct, which occurred prior to the divorce action, was inadmissible on the ground that such evidence should have been presented at the original divorce proceeding. In making this ruling, the trial court emphasized that he was endeavoring to avoid retrying the divorce action. The court stated, however, that he would permit questions relating to prior incidents on cross-examination and if appellee denied that the incidents occurred, appellants would be permitted to introduce their evidence on rebuttal. We are not persuaded that the appellants were prejudiced in any way by the court’s ruling inasmuch as the testimony of alleged incidents — purported erratic behavior on the part of appellee, i.e., appellee purportedly slapped Keith and a neighbor’s child and twisted the arm of the child’s mother, Marilyn Wiggs; — prior to the divorce did get into the record. The court, after carefully considering this evidence and the credibility of the witnesses, disregarded the testimony.

After carefully considering the evidence, we cannot state with certainty that the holding of the trial court is not supported by a preponderance of the evidence. It must be remembered that where the evidence is sharply controverted, as here, the trial judge is in a superior posture to evaluate the testimony of the witnesses and accord the testimony the proper weight and consideration for he has the advantage of observing the demeanor, attitude and temperament of the witnesses while we rely upon the printed record.

Also, it must be remembered that in child custody matters, the court must keep in view primarily the welfare of the minor child and the principles that between parent and grandparent, the law prefers the parent unless the parent is incompetent or unfit; and that custody is not awarded to comfort the emotions of either parent.

Furthermore, we do not perceive the trial court’s decree as an inflexible and permanent custody order, but on the contrary, the court retained jurisdiction “and the right to change this order for good cause. ... If I’m going to be responsible for what is best for this kid, I’m going to exercise my authority if I have to.”

We, therefore, affirm the trial court with direction to enter an injunction enjoining the appellee, Calvin Ronald Perkins, from removing Keith Perkins from the jurisdiction of the court without first petitioning the trial court for an order and a hearing conducted on such request with proper notice afforded to all interested parties.

Affirmed as modified and remanded.

Wright, C.J., Haves and Penix, JJ., dissenting.

Marian F. Penix, Judge,

dissenting. I believe the custody of Keith Perkins should remain with his maternal grandmother, Charlene Diggs, appellant, in Gurdon, Arkansas. Mrs. Diggs’ home has been Keith’s home since his birth. Both his mother and his father voluntarily placed Keith with Mrs. Diggs. From all the evidence it is clear this has been a fine environment for young Keith. He has the steady affection and care of both his mother and his grandmother.

From the record I can find no compelling reason to uproot this child and place him with a stepmother and his father. There is no indication his father will not continue to be transient in his career in the U.S. Air Force. There is every indication Mrs. Diggs and Keith’s mother will remain in Gurdon. The record reflected incidents involving Keith and his father in which the father was excessively, physically rough with his very young son. The record also reflects the father’s poor judgment in taking a five year old child hunting with a shot gun. There was testimony the father considers physical manifestations of his temper and his authority as being the proper manner in which to deal with other people as well as with Keith. The emphasis the father places in machismo is unfortunate for Keith to say the least.

Keith’s mother has also made mistakes. However, it is my feeling her mistakes are not of the nature which directly affect her relationship with Keith. The father’s attitude and mistakes are not the kind from which Keith can escape.

Appeals from chancery court are heard de novo. In reviewing this record I believe the best interests of Keith would be served by leaving his custody with his grandmother Charlene Diggs. However, I believe the father’s visitation rights should be liberalized, especially during non-school periods.

I would reverse the chancellor’s order and continue Keith’s custody with his grandmother, Mrs. Diggs.

Therefore, I respectfully dissent.

Ernie E. Wright, Chief Judge,

dissenting. I respectfully dissent from the decision of the three judges of the Court which affirms, with slight modification, the judgment of the trial court removing custody of Keith Perkins, age six years, from his maternal grandmother, Charlene Diggs. The child had been in Mrs. Diggs’ custody since May 10, 1976 as provided by the divorce decree, and the child’s mother, Donna Lee Perkins, resided in the home with her mother and child. The evidence was undisputed that Mrs. Diggs was a stable and wholesome person who provided a good home for the child.

The record does not, in my view, reflect changes in circumstances since the prior decree that indicate a change in custody to the father would serve the best interest of the son.

I would reverse the decree, leave the custody undisturbed and award extended summer visitation with the father.

M. Steele Hays, Judge,

dissenting. I cannot agree that the evidence in this case justifies an outright change of custody of Keith Perkins as ordered by the Chancellor. Since birth, Keith has been with his grandmother and his mother and there was no compelling basis for a sudden reversal of that arrangement. In view of Keith’s age, six years, and the evidence in its entirety, I believe that increased summer custody in appellee would be desirable, but the change as ordered I consider to be too abrupt. No doubt each home has something beneficial to offer Keith, but I cannot conclude that his best interest is served by a removal from the only home and the only community that he has known for his entire life. I would reverse the change of custody and increase the periods of summer and interim visitation.

      Act 278 of 1979 General Assembly of the State of Arkansas, provides, in part:
      SECTION 1. In an action for divorce the award of custody of the children of the marriage shall be made without regard to the sex of the parent but solely in accordance with the welfare and best interests of the children.
      SECTION 2. All laws and parts of laws in conflict with this Act are hereby repealed.

      Counsel, during oral argument, advised the Court that custody of Keith has been delivered to appellee and that the minor child is now enrolled in school in the Little Rock community.


author: David Newbern, Judge. M. Steele Hays, Judge,

text:
    BIBLER BROTHERS, INC. and MISSION INSURANCE COMPANY v. Johnny INGRAM
    CA 79-54
    587 S.W. 2d 841
    Opinion delivered October 3, 1979
    and released for publication October 24, 1979

      Barber, McCaskill, Amsler, Jones & Hale, for appellants.

      Richard L. Peel, for appellee.
   David Newbern, Judge.

In this case we are to determine whether the lower court erred in finding a lack of substantial evidence to support a Workers’ Compensation Commission award. The Commission assessed the employee’s permanent partial disability at 30%. The employee appealed to the circuit court where the decision of the Commission was reversed. The circuit judge entered an order saying he found the employee’s healing period had not ended and that the employee could be further healed by entering a therapeutic work program which the court had personally investigated and found to be available and suitable. The appellants contend (a) this action by the circuit court was improper because the judge considered evidence not in the record and did something he had no authority to do and (b) the judge erred in finding the Commission’s action was not supported by substantial evidence. We agree the court’s order should be reversed and that of the Commission reinstated.

The employee who is the appellee here sustained a serious injury to his head when a tree fell on him while he was at work on October 3, 1974. He has been treated by several physicians and has been tested by psychologists. Their testimony and that of the appellee, his wife and other lay persons presents a picture of a man who can do most of the physical tasks he could perform before he was injured. The evidence also shows he does not do them as often, as well or with the same energy or motivation as before. There was also testimony of a personality change. One psychologist said in his opinion the appellee was totally disabled. Another said he thought that what the appellee needed most was to get out and do something — like work.

Before the administrative law judge and the Commission, the appellee contended he was totally and permanently disabled. The appellants contended the healing period had ended October 8, 1976, the date of a medical examination of the appellee by a Dr. Watson, and agreed to a finding, also based on Dr. Watson’s report and that of a Dr. Redding, of 10% permanent partial disability to the appellee’s body as a whole.

The order of the Commission granting 30% permanent partial disability to the employee was appealed by him to the circuit court. The only evidence in the record showing the issues in that appeal consists of a brief filed by the employer and the insurance carrier, who are the appellants here, and the court’s order. Before the Commission, the appellee had contended he was totally and permanently disabled. There was no issue raised by the employee-appellee before the Commission whether a healing period had ended October 8,1976. We must assume that was not questioned by the employee before the circuit court either. Yet the court found as a matter of fact that the healing period had not ended. The rest of the court’s conclusions and actions were based on that determination.

The court’s finding is, at least in part, based upon a response by a rehabilitation agency to the court’s personal inquiry whether that agency could undertake a therapeutic (healing) work program for the appellee. In his order, the court said, in part:

The Court has contacted the Rehabilitation Service Office in Russellville and, after providing that office with a brief summary of the facts, has determined that it will undertake a therapeutic work program on Claimant even at this late date in an effort to rehabilitate him back into the work force. It appears to the Court that rehabilitation through work therapy is as much a part of the healing period or of the mechanism for recuperating from the disability which Claimant suffers as medicine, surgery, and other therapy would be for another type of injury.

This foray outside the record was clearly improper. The court went far beyond the provisions of Ark. Stat. Ann. §81-1325(b) (Repl. 1976), which sets forth the limits on judicial review of the Commission’s determinations.

Even had the court not made the results of his personal investigation a part of the basis of his order, however, we could not have supported a determination that there was no substantial evidence the healing period had ended. It is fairly certain that question was not raised by either party. If the court felt obliged to consider that question on his own, the court should have considered only the evidence which was before the Commission. Implicit in the medical reports recommending a finding of 10% permanent partial disability is a medical opinion that the healing had ended, and Dr. Watson’s final report suggested the appellee return to “some working responsibility.” That, in itself, is substantial evidence.

Nor was there a lack of substantial evidence of the percentage of disability assigned by the Commission. Drs. Watson and Redding found 10% disability to the body as a whole. One psychologist assessed the permanent disability at 100%. In his order, the court seemed to contemplate a requirement that there be direct medical testimony showing the precise percentage of disability found by the Commission before he would permit it to stand as supported by substantial evidence. He said:

This Court is of the opinion that there was not sufficient competent evidence in the record to warrant the making of the Order or award. The experts’ opinions fix disability at a conditional 10% or 100% with no expression of any partial disability between these two extremes. The lay testimony is of absolutely no value in trying to arrive at a percentage of permanent partial disability. There is nothing in the record on which to base a 30% award.

It was not improper for the Commission to consider other than medical evidence in making its award. Glass v. Edens, 233 Ark. 786, 346 S.W. 2d 685 (1961). In Wilson & Co. v. Christman, 244 Ark. 132, 424 S.W. 2d 863 (1968), the Arkansas Supreme Court said:

The Commission should form its opinion and base its award on the preponderance of all the competent evidence, including medical, as well as lay testimony, and also including the testimony of the claimant himself. The Commission weighs all of the evidence as a jury would do and we affirm the order or award of the Commission on appeal unless . . . there was not sufficient competent evidence in the record to warrant the making of the order or award. [244 Ark. at 137, 138]

It was thus error for the circuit court to refuse to consider lay testimony in determining whether there had been substantial evidence before the Commission to support its award. Even had there been only the medical testimony, however, we would have disagreed with the court and found substantial evidence to support the award. There is no doubt that claims based on psychological employment disabilities are compen-sable under our Act. Price Lumber Co. v. Adams, 258 Ark. 630, 527 S.W. 2d 932 (1975). In cases involving this inexact area of illness disability, it would be unreasonable to require a claimant to come up with witnesses testifying as to exact percentages of disability in hopes the Commission would choose a figure that had been specifically mentioned by a witness. We are not dealing with a scheduled injury when we consider traumatic neurosis, and our application of the “substantial evidence” standard must be adapted to these circumstances. See, 2 Larson, Workmen’s Compensation Law, § 58.20 (1976). Nothing in our law does or should require precise evidence of the precise amount of disability.

Our decision in Chandler Trailer Convoy v. Henson, 266 Ark. 38, (Ark. App. 1979), holding that a circuit court’s order remanding a workers’ compensation claim to the Commission for the taking of further evidence was not a final order and thus not reviewable is not applicable here. In this case, the Commission order has been reversed and the Commission has no latitude to make further determination of the crucial question whether the healing period has ended. The court substituted its own factual determination and legal conclusion, and that is a final order.

Reversed with orders to reinstate the decision of the Workers’ Compensation Commission.

Judges Hays and Howard dissent.

M. Steele Hays, Judge,

dissenting. I respectfully disagree that there is substantial evidence to support the decision of the Commission with respect to both the healing period and the permanent, partial disability. I concede that the Circuit Court exceeded the outer limits of its power of review as defined in Ark. Stat. Ann. § 81-1325(b) (Repl. 1976) by finding, on its own, that the healing period had not ended. I agree with the majority that the order of the Circuit Court becomes appealable in this instance for the reasons stated in the majority opinion.

There is no question, nor should there be, but that the findings and conclusions of the Commission are not reversible except in strict conformance with Section 25(h) of the Workers’ Compensation Act, amended by Act 252 of 1979, and if its findings are supported by sufficient, competent evidence, the Commission’s decision will be affirmed. Sufficient, competent evidence is frequently, almost uniformly, interpreted as “substantial evidence.” Ivory Handle Company v. Yates, 212 Ark. 1010; Blankenship Logging Company v. Brown, 212 Ark. 876; Merger v. Seismograph Service Corporation, 209 Ark. 168.

It is said that substantial evidence is difficult to define, and clearly that is so. But the presence in the record of substantial evidence to support the Commission’s findings is held to be a matter of law. (See Traveler’s Insurance Company v. Martin, 571 S.W. 2d 416.) Hence, it is an affirmative duty of the appellate court to determine whether there is substantial evidence to support the Commission’s findings. Morris v. Crossett Thurber Company, 219 Ark. 575.

The problem, obviously, lies in arriving at a standard for judging “substantial evidence” so that we are not left with a purely subjective appraisal. A detailed review of the record would serve no useful purpose; it is enough to say that what I view as substantial evidence is absent. The Circuit Court observed that there was nothing in the record on which to base an award of thirty percent, and I concur in that view.

My concern is not so much the degree of disability arrived at by the Administrative Law Judge and the Commission (although I believe the severity of the initial injury to the skull and brain of the claimant and the ensuing psychological consequence would support a significantly larger award) as with the absence of any attempt whatsoever to document and relate the degree of disability to specific factors and data in the record. The end result should be obvious, i.e., appellate review becomes a matter of either blind acceptance of the Commission’s award on the one hand, or something akin to trial de novo on the other, neither of which is consistent with the spirit of the Worker’s Compensation Act. I recognize that fixing the degree of disability in given cases is not susceptible to fine accuracy, but it need not be left, as it tends to be, to random conjecture. Neither side in Worker’s Compensation cases is benefited by too wide a latitude in this area of the law.

I would modify the order of the Circuit Court to remand to the Commission with directions to set out the factual basis from the record on which the healing period, and, so far as feasible, the award of permanent, partial disability were determined.

Judge Howard concurs in this dissent.


author: Ernie E. Wright, Chief Judge.

text:
    Bonita M. SCINTA v. James J. MARKWARD
    CA 79-138
    588 S.W. 2d 456
    Opinion delivered October 10, 1979
    and released for publication October 31, 1979

      Robert R. Cloar, for appellant.

      Gean, Gean & Gean, for appellee.
   Ernie E. Wright, Chief Judge.

Appellant, Mrs. Scinta, and appellee, Mr. Markward, were divorced November 19, 1969 in the State of New York. The decree required appellee to pay appellant $134.00 per month child support for the two minor children of the parties. Sometime after appellee’s removal to Arkansas and failure to make support payments appellant in 1975 initiated a Uniform Reciprocal Support Petition in New York where she and the minor children continued to reside and same was duly filed in the Chancery Court of Sebastian County, Fort Smith District, with a certification of need by the judge of the forwarding court showing need of the children to be $200.00 per month, plus medical and dental expenses. After service of summons on appellee and a hearing on the petition and the cross complaint filed by the appellee asking for custody of the children, the court entered an order dated March 24, 1976 finding appellee had the ability to pay $115.00 per month child support and ordering him to pay same and to maintain group insurance coverage for the children or otherwise be responsible to defray extraordinary medical or dental bills for them. The court further ordered that appellee should have the right to have the children visit with him in Arkansas from June 1 until August 15 of each year and that he would “be relieved of child support payments for such extended visitation periods in the summer months when and if exercised”.

On August 11, 1976 the court entered an order finding appellant in contempt of court for failure to comply with the visitation provisions of the order of March 24, 1976 in the reciprocal support proceeding, reducing the child support to $100.00 per month and providing for disbursement of the child support payments to appellant only on condition she comply with the Arkansas court order with reference to visitation. Later, a motion was filed to vacate the order dated August 11, 1976. At a hearing on June 29, 1977, at which the respective parties were represented by counsel, the court entered an order vacating its order dated August 11, 1976 and prior orders to the extent that they dealt with visitation rights, and directing the child support would remain in the amount of $50.00 per child per month and that accumulated child support payments should be delivered over to appellant.

Thereafter, appellee failed to make child support payments for the period from June 1, 1977 until August 15, 1977. Appellant on September 8, 1977 filed a motion to cite appellee for contempt for such failure. Appellee filed a response contending that the reciprocal support order dated March 24, 1976 relieved appellee of child support for payments for the two and a half month period set out in said order for appellee’s visitation with the children.

The court entered an order dated November 11, 1978 reciting there was a misunderstanding as to the prior orders of the court dated March 24, 1976, August 11, 1976, and June 29, 1977 as to whether the appellee is relieved of child support payments for the months of June, July and one-half of August of each year. The order recited “the court for the purpose of clarification of the above-mentioned orders . . . does direct that its said previous orders do not require the payments of child support by the defendant for the months of June, July and one-half of the month of August of each year”. On appeal from that order, appellee contends the trial court under the Uniform Reciprocal Support Act, Ark. Stat. Ann. §34-2401, el seq. (Repl. 1962) was without jurisdiction to reduce or withhold child support conditioned on visitation rights.

In Kline v. Kline, 260 Ark. 550, 542 S.W.2d 499 (1976), the court held participation in any proceeding under the Uniform Reciprocal Enforcement of Support Act does not confer jurisdiction over any of the parties thereto with reference to parental visitation rights, and that such rights and their enforcement are to be addressed to the court where the parent having custody and the children continue to reside. The court, therefore, properly vacated the portions of all orders establishing visitation rights of the appellee, as such matters were outside of the scope of the jurisdiction of the court under the Act.

The appeal from the order dated November 11,1978, being from the Chancery Court, is reviewed de novo in this court. The record discloses no change in circumstances warranting a reduction in the amount of child support under the very conservative award of $50.00 monthly per child as fixed by the order dated August 11, 1976. None of the orders prior to the order of November 11, 1978 specified that appellee would be unconditionally relieved of support payments from June 1 through August 15 each year. On the contrary, the only prior order that dealt directly with the point, the order of March 24, 1976, recited “respondent is to be relieved of child support payments for such extended visitation periods in the months when and if exercised”. The order dated November 11, 1978 giving rise to this appeal would have the effect of deleting the provisions in the prior court order specifically providing that appellee would be relieved of support payments during summer visitation periods if the visitation was actually exercised. We hold there is no pleading and evidentiary basis for such a change departing from the provisions contained in the prior court orders.

The arranging of child support on a basis avoiding payments during visitation periods not arranged by agreement of the parties or by the order of the court of the state having jurisdiction over visitation rights is improper. The chancellor’s action violated the spirit if not the letter of Kline v. Kline, supra, but regardless of that holding, we could not affirm.

All prior orders of the court in this cause had been entered far longer than ninety days prior to November 11, 1978, and were not subject to modification or vacation except in accordance with Ark. Stat. Ann. §29-506. Ark. Stat. Ann. §22-406.4 clothes the chancery court with plenary power over its judgments for a period of only ninety days after entry. The record does not reflect the establishment of any of the grounds set out in §25-506 for modifying the prior final orders of the court, and there was no compliance with Ark. Stat. Ann. §29-508 which prescribes the required procedure for modifying or vacating a final judgment. The order of November 11, 1978 was a modification of prior final orders rather than a clarification or clerical correction.

The case is reversed and remanded with directions to enter a decree in conformity with this opinion and for determination and enforcement of appellee’s arrears in child support obligations. The decree will award appellant a $300.00 attorney fee to be paid by appellee for legal services in this appeal.


author: James H. Pilkinton, Judge.

text:
    Charles M. RICHARDSON v. Charles S. ROGERS
    CA 79-49
    588 S.W. 2d 465
    Opinion delivered October 10, 1979
    and released for publication October 31, 1979

      John R. Henry, for appellant.

      Raymond R. Abramson, for appellee.
   James H. Pilkinton, Judge.

This is a workers’ compensation case. On April 25, 1976, appellee Charles S. Rogers, a welder, sustained an accidental injury which arose out of and in connection with his work. The nature and amount of the awards made by the Workers’ Compensation Commission are not questioned on appeal. The sole issue before us is whether Charles M. Richardson, individually, is liable for the compensation benefits due claimant.

It is undisputed that Charles M. Richardson controls and operates the CMR Company, and also Fisher Supply Company, Inc.

Charles M. Richardson, individually, CMR Company and Fisher Supply Company are all uninsured for workers’ compensation and have not qualified as self-insured under the provisions of Rule 5 of the Workers’ Compensation Commission.

The Workers’ Compensation Commission made a finding of fact that Charles M. Richardson, individually, and his two business firms are interrelated to the extent that each qualifies as an employer within the meaning of Section 2(a) of the Workers’ Compensation Act [Ark. Stat. Ann. §81-1302(a) (Repl. 1976)] . Each was found to be jointly and severally liable for the awards to claimant; and in accordance with the provisions of Section 25 of the act [Ark. Stat. Ann. §81-1325 (Repl. 1976)] the order of the commission constitutes a judgment against the three, jointly and severally. Mr. Richardson appealed this finding and judgment to the Circuit Court of Poinsett County where the judgment was affirmed. He then appealed to the Arkansas Supreme Court, and the case has been assigned to the Arkansas Court of Appeals under Rule 29(3).

On appeal Mr. Richardson claims the commission erred in finding that an employer-employee relationship existed between him individually and the claimant. He argues that this finding is contrary to the evidence.

In the recent case of Foster v. Johnson, 264 Ark. 894, 576 S.W.2d 187 (1979), the Arkansas Supreme Court stated:

On review we look to see if there is substantial evidence to support the findings of the commission. Reynolds Metal Co. v. Robbins, 231 Ark. 158, 328 S.W.2d 489 (1959). We resolve all inferences against the employer and give the evidence the most liberal construction possible in favor of the claimant. Price v. Servisoft Water, et al., 256 Ark. 702, 510 S.W.2d 293 (1974).

Whether the relation of employer and employee exists is to be determined by the provisions of the statute and the facts and circumstances of each case. 99 C.J.S. Workmen’s Compensation §64.

In the case before us, Charles M. Richardson had sold some tanks to Jonesboro Grease Extraction Company. The purchaser wanted certain materials, including steam coils, pipes and other items installed in the tanks. Business was slow and Richardson sent Red Wheatley, one of his men, to see about getting that particular work. In so doing, Mr. Richardson told Wheatley: “We’re all needing to work some. We’re not making any money like it is”. Wheatley made the arrangements with Jonesboro Grease Extraction Company, reported to Richardson, and the job was started. Charles S. Rogers, the claimant, was then employed as a welder at $3.00 an hour. It is clear from the record that Mr. Richardson arranged the financing, furnished the vehicles and gasoline, and paid the employees. He controlled the work, and drew some money himself when he worked personally on the job and, in addition, drew 20% for furnishing his truck, gas and other equipment.

CMR Company is a firm owned, operated and controlled by Charles M. Richardson. It is not clear from the record whether Fisher Supply Company, Inc., is a division of CMR Company, or CMR is a division of Fisher Supply. In any event, Mr. Richardson controlled both of the firms. He testified:

Q. Alright, are Fisher Supply and CMR the same?
A. Yeah, uh-huh.

And at another point he replied to a question as follows:

A. . . . and I thought the insurance had us all, you know, taken care of and everything because CMR Company and Fisher Supply and Charlie Mack Richardson, I had the idea that it was all just one big happy family.

At still another time in his testimony Mr. Richardson said:

A. We were all working together and everything. We used my automobile and everything else.

Mr. Richardson further testified he usually operated through Fisher Supply Company, Inc., but Fisher “got down to where it wasn’t making any money” and was “busted right now” (referring to the time the job in question was started). He further testified that “CMR was also busted, but I could get a little money”. Mr. Richardson signed a note for $2,-000.00 in order to get the Jonesboro Grease job started. In regards to who furnished the money, Mr. Richardson answered a question in the following manner:

A. Well, we used that note, I guess, to help get the salaries going and everything.

As to who paid the claimant Mr. Richardson testified:

Q. What is your position with CMR Company?
A. I am the owner of CMR Company.
Q. Is there anyone else who owns a part of CMR Company?
A. Not that I know of.

Mr. Richardson was frank in admitting that he commingled funds, and said what little money CMR made was diverted by him to Fisher Supply to pay off debts. It is clear that neither firm had any material assets.

From the above, and other testimony before us, we cannot say there was no reasonable basis for the commission to conclude that Charles M. Richardson, individually, and these two business entities are interrelated to the extent that each qualifies as an employer within the meaning of the Workers’ Compensation Act. Franks v. Amoco Chemical Co., 253 Ark. 120, 484 S.W.2d 689 (1972). The liberal construction rule applies to factual determination of an issue of this type. Purdy v. Livingston, 262 Ark. 575, 559 S.W.2d 24 (1977). We find there is substantial evidence to sustain the decision of the commission, and it is our duty to affirm. [Ark. Stat. Ann. §81 -1325(b) (Repl. 1977)] , Ruby Turner v. Lambert Construction Company, el al, 248 Ark. 333, 524 S.W.2d 465, Purdy v. Livingston, supra.

Mr. Richardson claims he ran this job through CMR Company, and that the employment of claimant was in no way connected with his regular work which was farming. He seems to argue that the employment was casual to him. We find no merit in this contention. Farming was only one of Mr. Richardson’s activities. He had other extensive business interests. The work being done for Jonesboro Grease, in which claimant was engaged, was closely related to the sale of certain tanks to the Jonesboro firm. Mr. Richardson also argues that he should be protected from individual liability on this workers’ compensation claim because of his two business firms. The record indicates that CMR is not a corporation. There was no evidence offered to show that Charles M. Richardson was in any manner acting within the scope of his employment with either CMR Company or Fisher Supply Company, Inc., in the employment of claimant or in the direction of his work. Instead the record shows that Mr. Richardson worked personally on the job, was fully qualified to control it, and was in actual control of claimant and work being performed.

We find there was substantial evidence to support the findings of the Workers’ Compensation Commission, and therefore affirm.

Affirmed.

      For a distinction between actual control and power to control see Sandy v. Salter, 260 Ark. 486 at 489, 541 S.W. 2d 929.


author: James H. Pilkinton, Judge. Marian F. Penix, Judge,

text:
    CONWAY CONVALESCENT CENTER v. Elva MURPHREE
    CA 79-53
    588 S.W. 2d 462
    Opinion delivered October 10, 1979
    and released for publication October 31, 1979

      Thomas M. Bramhall, for appellant.

      Guy Jones, Jr., for appellee.
   James H. Pilkinton, Judge.

This case was appealed to the Arkansas Supreme Court and by that court was assigned to the Arkansas Court of Appeals pursuant to Arkansas Supreme Court Rule 29(3).

The claimant-appellee suffered a back injury when she attempted to lift a patient in the course of her employment as an aide working for appellant-Convalescent Center. The administrative judge denied her claim for total disability compensation under the Arkansas Workers’ Compensation Act. Upon claimant’s appeal to the Workers’ Compensation Commission she was awarded compensation. The Circuit Court affirmed the finding of the Commission and the Convalescent Center lodged this appeal.

The appellant contends the award is not supported by substantial evidence in that all of the medical evidence indicated the claimant’s present problems to be unrelated to her compensable injury.

The claimant is a 5’4” female weighing between 275 and 295 lbs. The evidence shows the claimant to have been obese all of her adult life. In spite of her excessive weight she has been a physically active person. The record reflects a lifetime of strenuous physical activity. The claimant did farm labor, custodial work, lifted heavy trash containers, performed all the duties which accompany raising six children on a farm. In addition to her domestic chores she worked long hours away from her home. Claimant was excessively overweight when the Convalescent Center employed her. She worked one year and eight months and was able to perform the duties expected of her by her employer, the appellant. On April 28, 1977 the claimant injured her back while lifting a patient. Dr. Hall of Clinton was the first doctor examining the claimant. He referred her to an orthopedist, Dr. Runyan, who also referred her to Dr. Adametz, a neurologist. Later the claimant was examined by Dr. Smith of Conway who referred her to another orthopedist, Mr. Mulhollan. All of the doctors agree that claimant did hurt her back on the job. They all agree that she is totally disabled at present. They agree the claimant suffered a posterior longitudinal ligament strain on April 28 which began a “vicious cycle”. The pain from the injury initially kept the claimant immobile. The immobility has caused an increase in her weight. The obesity aggravates her condition, which causes pain, which keeps her immobile. The doctors agree the injury was the precipitating factor — or as Dr. Mulhollan expressed it “was the straw which broke the camel’s back”. The doctors indicate the disability at present is due to the claimant’s obesity and not due to the April 28 injury. The Workers’ Compensation Commission rightly held the back problem and the obesity are now inseparably intertwined in the so-called “vicious cycle”. The individual weakness of obesity cannot be fairly separated from the injury. The employer and its insurance carrier accepted this individual as a workers’ compensation risk at the time of her employment and throughout her employment. Her weakness, obesity, was obvious at the time she was hired.

The claimant contends the back injury aggravated a preexisting condition of degeneration of delicate tissues which had developed because of many years of hard physical labor engaged in by an enormously obese body.

Larson, Workmen’s Compensation Law, §12.20, p. 3-276, 3-307 states:

Pre-existing disease or infirmity of the employee does not disqualify a claim under the ‘arising out of employment’ requirement if the employment aggravated, accelerated, or combined with the disease or infirmity to produce the death or disability for which compensation is sought. This is sometimes expressed by saying that the employer takes the employee as he finds him.

McGregor & Pickett v. Arrington, 206 Ark. 921, 175 S.W.2d 210 (1943); Green v. Lion Oil Co., 215 Ark. 305, 220 S.W.2d 409 (1949); Safeway Stores, Inc. v. Harrison, 231 Ark. 10, 328 S.W.2d 131 (1959). Also at p. 3-312 of Larson “ . . . The preexisting condition may be any kind of weakness.” Shainberg v. Dacus, 233 Ark. 622, 346 S.W.2d 462 (1961).

The claimant’s weakness is her degenerative disc disease with marked degenerative changes and also narrowing of two disc spaces which pre-existing condition continues to be chronic because of her obesity.

When an industrial injury precipitates a disability from a latent prior condition, such as heart disease, cancer, back disease and the like, the entire disability is compensable. McDaniel v. Hilyard Drilling Co., 233 Ark. 142, 343 S.W.2d 416 (1961); Wilson Hargett Constr. Co. v. Holmes, 235 Ark. 698, 361 S.W.2d 634 (1962); Finkbeiner, Inc. v. Flowers, 251 Ark. 241, 471 S.W.2d 772 (1971).

Whether or not employment aggravated, accelerated, or combined with the internal weakness or disease to produce the disability is a question of fact, not law, and a finding of fact on this point by the Commission based on any medical testimony will not be overturned unless the evidence is insufficient to support the finding. Starrott v. Namour, 219 Ark. 463, 242 S.W.2d 963 (1951).

The Commission found that claimant has been temporarily and totally disabled beginning April 29, 1977, through a date yet to be determined for which claimant is entitled to compensation.

The Commission also ordered that: (1) the issue of permanent disability, if any, (2) the end of the healing period, and (3) vocational rehabilitation shall be held in abeyance pending further medical examination and possible treatment or surgery.

The above award and findings are supported by substantial evidence.

Affirmed.

Penix, J., dissents.

Marian F. Penix, Judge,

dissenting. All of the medical testimony indicates claimant’s disability at present is due to the claimant’s obesity and not to the April 28 injury. It is clear that the was grossly overweight prior to the injury. Since the injury her weight has increased by at least 50 lbs. By her own testimony she acknowledged her obesity was from over-eating (T.29) and from not having anything else to do but to eat. (T.30)

Dr. Runyan referred claimant to Dr. Kerry Ozment to evaluate her for a stapling procedure. Dr. Runyan testified the claimant is going to become an “orthopedic disaster” from her weight problem. The stapling procedure is a new surgical device used on the stomach by which patients are assisted in weight reduction.

Claimant’s situation may be compared to a person with a ruptured disc which renders that person totally disabled because the person refuses reasonable surgery which probably would reduce the disability to 10%-15%. There is no substantial evidence the claimant is totally disabled because of the back injury — but rather is totally disabled because she refuses or is unable to lose weight.

The Commission divided 2-1 in making a finding which disregards the opinions of both orthopedic physicians. These medical issues are peculiarly within the realm of scientific knowledge.

A more than generous application of the Workers’ Compensation Law would be for the Commission to determine the feasibility and advisability of intestinal surgery for claimant as doctors have testified that a substantial reduction in weight would reduce her disability and would indeed lengthen her life span. The Workers’ Compensation Law should not be distorted into paying claimant for the remainder of her life as a reward for her refusal to correct her obesity any more than paying for life a claimant who refuses corrective back surgery.

The question whether refusal of treatment should be a bar to compensation turns on a determination whether the refusal is reasonable. Reasonableness in turn resolves itself into a weighing of the probability of the treatment’s successfully reducing the disability by a significant amount, against the risk of the treatment to the claimant. Larson’s Workmens’ Compensation Law, §13.22, p. 3-398.

In an Arizona case the claimant sustained a back injury. Because she was overweight her doctors put her on a diet and stated she would be better off if she lost weight. Claimant failed to follow the prescribed diet, and compensation benefits were suspended due to her failure to follow doctor’s orders. Moctezuma v. Industrial Commission, 19 Ariz. App. 534, 509 P.2d 227 (1973).

Ark. Stat. Ann. §81-1311 provides:

. . . Where an injured person unreasonably refuses to submit to a surgical operation which has been advised by at least two (2) qualified physicians and where such recommended operation does not reasonably involve risk of life or additional serious physical impairment the Commission may, in fixing the amount of compensation, take into consideration such refusal to submit to the advised operation . . .

This case should be remanded to the Commission for its determination whether surgery should be provided for claimant to precipitate a substantial weight loss. If surgery is found to be indicated the Commission could require the insurance carrier to pay for such medical procedure. This would be justified in view of the medical evidence the back injury initially was the precipitating factor leading to the claimant’s period of temporary total disability, even if that no longer is the situation. I do therefore respectfully dissent.


author: George Howard, Jr., Judge.

text:
    Raymond McILLWAIN and Delmar McILLWAIN d/b/a McILLWAIN BROTHERS, A Partnership, v. WELCO RICE MILLING CO. d/b/a ROBERTS RICE MILLS
    CA 79-123
    588 S.W. 2d 459
    Opinion delivered October 10, 1979
    and released for publication October 31, 1979

      Tiner <2? Easterling, by: Charles R. Easterling, for appellants.

      Barrett, Wheatley, Smith <3? Deacon, for appellee.
   George Howard, Jr., Judge.

This appeal presents the following questions:

1. Did the trial court commit error in authorizing appellee to deduct from appellants’ jury award $2,-693.66 as rent due Lawrence Tilley, owner of part of the land on which appellants’ rice crop was produced and who was not a party to the action?
2. Whether appellants are entitled to interest on the S261.035.99, that appellee admitted owing, from the date that appellants filed their lawsuit, November 29, 1977, to August 2, 1978, when appellee, pursuant to court order, delivered this money to appellants although appellants’ recovery was less than what they sued for, but greater than what appellee admitted owing.

The essential facts are: Appellants are rice producers of two varities known as Nato and Nortai. Appellee is a trader and markets this rice almost exclusively with the Kellogg Company.

During the spring of 1977, appellants and appellee entered into an oral agreement whereby appellee would purchase the rice produced by appellants, but agreed that the amount to be paid per bushel would be determined during the harvest season since it was difficult, if not in fact impossible, to determine what the competitive market price would be at that time. Between September 9, 1977, and October 20, 1977, appellants delivered to appellee 99,566.61 bushels of green rice, but after drying the deliveries aggregated 27,-462.28 bushels of Nato and 60,939.73 bushels of Nortai.

On October 20, 1977, appellants were advised that appellee would pay only $4.00 per bushel for both Nato and Nortai rice. Appellants rejected the offer, contending that the amount offered was not competitive and did not mirror the fair market price. On October 28, 1977, appellants demanded a settlement advising appellee that they would not accept anything less than $6.01 per bushel for the Nato variety and $5.91 per bushel for the Nortai variety. Appellee rejected appellants’ offer. Appellants demanded a return of all of the rice delivered, minus reasonable deduction for storage and drying expense. Appellee also rejected this request.

On November 29, 1977, appellants filed their lawsuit seeking judgment for $607,010.00 with interest at the rate of 10% per annum from October 28, 1977, the date appellants made demand for settlement, until paid.

Appellee filed its answer alleging that appellee had offered to pay $4.48 per bushel for Nato rice and $4.20 per bushel for Nortai rice, both constituting grade number 2, minus the cost of drying, advancements made to appellants, combining expense and payments to owners of lands rented by appellants on which the rice was grown; and that appellants should be required to accept the settlement offered.

The matter was scheduled for trial on August 2, 1978, but was continued, at the request of appellee, on condition that appellee pay to appellants the amount that it admitted owing after the deduction of certain indebtedness — drying charges, combining expense, advances made to appellants and rent paid to owners of lands leased by appellants. Appellee delivered to appellants $261,035.99. This sum is based upon appellee’s claim that appellants were entitled to $4.48 per bushel for 27,462.28 dry bushels of Nato rice and $4.20 per bushel for 60,939.73 bushels of Nortai rice.

On September 28, 1978, the matter proceeded to trial. The parties, by way of stipulation, submitted only one issue to the jury: What did appellee owe appellants per bushel for Nato grade number 2 and Nortai grade number 2 rice?

The jury found that appellee should pay $4.48 per bushel for the Nato variety as well as $4.48 per bushel for the Nortai variety. As a consequence, appellants were awarded an additional .28^ per bushel on 60,939.73 bushels of Nortai rice, resulting in an award of $17,063.13.

On November 6, 1978, appellee filed its motion to enter judgment on the jury’s verdict and further requested leave to deduct from the award $2,693.66 as rent due Lawrence Tilley, landlord of appellants’. The trial court entered its judgment on November 28, 1978, authorizing appellee to deduct the rent due Tilley and entered a $14,369.47 judgment for appellants with interest from September 29, 1977, until paid. The trial court denied appellants’ request for interest on the $261,035.99 from the date of their lawsuit to August 2, 1978.

It is plain that as a consequence of the jury award, appellants received .280 more for the 60,939.73 bushels of Nortai, aggregating a total recovery of $17,063.13. After the trial court authorized appellee to pay the rent due Lawrence Tilley, appellants realized a net gain of $14,369.47.

Appellants argue that the trial court in permitting this deduction, in effect, rendered a judgment on behalf of Lawrence Tilley who was not a party to the action. Further, appellants argue that the jury award was based solely upon an increasement of the price for the Nortai rice which was not grown on the land owned by Lawrence Tilley and to permit Tilley to share in the award is, in effect, to permit him to share in the value of something which he had no interest in.

We are not persuaded by appellants’ argument and consequently, we reject appellants’ position here in its entirely.

Ark. Stat. Ann. §51-201 (1971 Repl.), provides:

Every landlord shall have a lien upon the crop grown upon the demised premises in any year for rent that shall accrue for such year, and such lien shall continue for six [6] months after such rent shall become due and payable, and no longer.

Ark. Stat. Ann. §51-205 (1971 Repl.), states:

The purchaser or assignee of the receipt of any ginner, warehouse-holder or cotton factor or other bailee or any cotton, corn or other farm products in store or custody of such ginner, warehouseman, cotton factor, or other bailee shall not be held to be an innocent purchaser of any such produce against the lien of any landlord or laborer. (Emphasis added.)

It is undisputed that appellants delivered an aggregate of 99,566.61 bushels of green rice to appellee, some of which had been produced on lands owned by Tilley. We believe that appellee had sufficient interest and equity in the produce to justify appellee in taking steps to see that the landlord’s rent was paid. While it is not clear from the record just when Tilley’s rent became due, it is plain that Tilley had contacted both appellants and appellee about his rent and, as a consequence, certain promises and acknowledgments were made. Under these circumstances, appellee might have concluded that the six months limitation contained in the statute was not a defense to any action against it by Tilley.

Moreover, all parties acknowledged that certain deductions were to be made from the gross proceeds, including rent to several land owners. By oversight, Lawrence Tilley was not paid.

Finally, we do not perceive the trial court’s order authorizing appellee to deduct Tilley’s rent from the jury award as constituting a judgment. Tilley was not a party to the action and there was no attempt by the trial court to adjudicate any issue that involved Tilley. The action of the trial court simply authorized appellee to pay Tilley.

Appellants also argue that the trial court erred in not allowing interest on $261,035.99 which appellee admitted that it owed appellants and which was delivered to appellants on August 2, 1978, pursuant to a court order. We believe that appellants’ argument here has merit and we, accordingly, reverse the trial court.

It must be remembered that appellants delivered to appellee from September 9, 1977, to October 20, 1977; appellants filed their lawsuit on November 29, 1977. It was not until August 2, 1978, that appellee relinquished funds which it recognized as belonging to appellants. While appellee asserts that appellants were offered funds almost immediately after the dispute developed and that appellants could have received the proceeds by simply asking for them, it is plain that appellee’s offer was not unconditional. Moreover, appellee made no effort to interplead the funds in court. Appellee delivered the proceeds to appellants as a condition precedent for a requested continuance of the case on August 2, 1978.

We are convinced that Loomis v. Loomis, 221 Ark. 743, 255 S.W.2d 671 (1973), is controliing here where the Arkansas Supreme Court stated:

. . . The familiar rule that interest is not allowed on un-liquidated demands does not mean that the defendant must in every instance know before the trial the exact amount he must pay if he loses. The rule applies principally to those cases in which the defendant is not in default for the reason that the extent of his liability can be determined only by litigation, as in a suit for personal injuries or for recovery upon quantum meruit . . .
... [A] defendant’s liability for breach of a contract to pay a definite sum of money may be uncertain, for the default may have saved the plaintiff the expense of full performance on his own part, and that saving may be a matter for the jury to determine. In spite of this uncertainty interest is recoverable from the date of the breach

We hold that under the circumstances existing in this case, appellants are entitled to interest from the date of the filing of their lawsuit to August 2,1978, the date that appellee delivered the funds to appellants at the rate of 6% per annum.

Affirmed in part and reversed in part and remanded for proceedings not inconsistent with this opinion.


author: David Newbern, Judge.

text:
    Mack KELLUM v. Bartus M. GRAY, Sr. and Betty GRAY
    CA 79-124
    590 S.W. 2d 33
    Opinion delivered October 10, 1979
    [Petition for rehearing denied November 28,1979.]
    and released for publication November 28, 1979

      Kenneth E. Suggs, for appellant.

      Mike Wilson of Wilson, Dougherty & Mills, for appellees.
   David Newbern, Judge.

This case was appealed to the Arkansas Supreme Court and assigned to the Court of Appeals pursuant to Arkansas Supreme Court Rule 29(3).

The chancellor awarded rescission of a real estate contract upon finding a breach of the contract by the appellant due to his failure to perform within a reasonable time. We affirm that result.

Mr. and Mrs. Gray, the appellees, agreed to buy, and Mr. Kellum, the appellant, agreed to sell a house and lot for $138,500. The house was in the final construction phase, and the agreement provided Mr. Kellum was to finish the house with carpets, drapes, and other “custom” items selected by the Grays. Shortly after February 27, 1978, the date the agreement was entered, the parties began to argue. Mr. Gray, a long-time real estate dealer, heard some things about Mr. Kellum’s business reputation of which he did not approve, and he found Mr. Kellum argumentative with respect to the completion of the house. On March 13, 1978, the parties had a confrontation. Their descriptions of it differ. Mr. Gray said he offered to rescind the contract and allow Mr. Kellum to retain $5,000 of the $10,000 earnest money the Grays had paid if Mr. Kellum would accept the offer. Mr. Kellum’s version was that the Grays said they were backing out of the deal and demanded $5,000 of their $10,000 be returned. At that meeting, Mr. Kellum asked Mrs. Gray if the Grays had purchased the house next door to the one in question, and she said they had.

The contract specifically provided the $10,000 would become liquidated damages if the buyers defaulted. Kellum says his posture thereafter became that of regarding the $10,-000 as forfeited and the contract terminated because of the Grays’ repudiation. The Grays take the position they were entitled to performance because they had only offered to rescind and their offer was not accepted.

The chancellor, in his findings at the end of the trial and statements in his decree, said several highly inconsistent things. He said the parties had rescinded the contract, time was of the essence in the contract, and Mr. Kellum had failed to perform in a reasonable time. If the contract was rescinded, no performance by Kellum was required. If time was of the essence, then Kellum was required to perform at a specific time, and the “reasonable time” standard would not have applied. There was no evidence supportive of the conclusion that time was of the essence.

Although we find the chancellor’s statements confusing, we are not bound by them on this de novo review, and we can review the record and reach the same result he reached despite them. See, e.g., Gentry v. Allen, 228 Ark. 236, 306 S.W.2d 695 (1957).

Neither side questions the existence of the contract or that Mr. Kellum has not transferred the property to the Grays. The only question is whether he was justified in his refusal to perform. To prove an anticipatory repudiation of a contract, one must show a present, positive and unequivocal refusal to perform. Meinhardt v. Investment Builders Properties Co., 518 P. 2d 1376 (Colo. App. 1974); Rest. Contracts, §318 (1932). On that issue, Kellum had the burden of proof as he would on almost any factual assertion he might have urged as a defense. Armstrong & Co. v. Ben Pearson, Inc., 294 F. Supp. 163 (E.D. Ark. 1967); Coast Pump Associates v. Stephen Tyler Corp., 62 Cal. App. 3d 421, 133 Cal. Rptr. 88 (1976); Haas v. Cohen, 295 N.E. 28 (Ill. App. 1973); Audrey Apartments v. Komegay, 255 So. 2d 792 (La. App. 1971). He presented only his own testimony which was controverted by that of Mr. Gray. In addition, the Grays presented, as exhibits, copies of correspondence between the parties. In a letter of March 21, 1978, Mr. Kellum’s attorney conveyed to the Grays’ attorney an offer to release them from the contract under certain conditions including retention of $5,000 of the $10,000 deposit and retention of the remainder of it to the extent he sustained loss in a subsequent sale of the house. The letter is evidence that Mr. Kellum did not at that date regard the $10,000 as forfeited. On April 14,1978, his attorney wrote a letter saying the “deposit” was forfeited. On April 21, 1978, the Grays responded in a letter demanding a return of $5,000 or performance within 60 days. The complaint was filed July 31, 1978.

In view of the entire record in this case, we cannot find that Mr. Kellum sustained his burden of proving the Grays repudiated their agreement with him in such a manner as to excuse his performance. Even if the record could be regarded as showing an anticipatory repudiation by the Grays, there is no evidence whatever that Mr. Kellum brought suit or materially changed his position before the Grays’ letter of April 21, 1978, informing him of their willingness to perform. Thus clear evidence of repudiation would be meaningless in view of this retraction. Rest. Contracts, §319 (1932).

It is enough to say here that Mr. Kellum has not sustained his burden of proof on the issue of repudiation. He has failed to perform within a reasonable time, and rescission with restitution of the earnest money is an appropriate remedy. Economy Swimming Pool Co. v. Freeling, 236 Ark. 888, 370 S.W.2d 438 (1963). See also, Hogue v. Pellerin Laundry Machinery Sales Co., Inc., 352 F.2d 772 (8th Cir. 1965).

Affirmed.


author: George Howard, Jr., Judge. Marian F. Penix, Judge,

text:
    Vonda LENDERMAN v. Jerry LENDERMAN
    CA 79-144
    588 S.W. 2d 707
    Opinion delivered October 17, 1979
    and released for publication November 7, 1979

      William B. Howard, for appellant.

      Cathey, Goodwin <2? Hamilton, for appellee.
   George Howard, Jr., Judge.

The central issue in this enormously emotional and sharply controverted divorce proceeding is whether the trial judge’s decree awarding custody of the parties’ four-year-old daughter to the father is in the best interest of the child.

The pertinent facts are: Appellant instituted an action for an absolute divorce. She also requested custody of the parties’ minor child. Appellee filed his counterclaim for divorce and custody of the child.

On July 18, 1978, temporary custody of the child was given to the father. The court found it would be in the best interest of the child to do so.

On December 27, the trial court conducted a final hearing which was replete with charges and countercharges of improprieties of language and conduct on the part of each parent.

Appellant testified that during the parties’ five years of marriage, she has been required, although against her will, to permit appellee to indulge in oral sex during their personal and intimate relations.

Relative to the relationship between appellee and the parties’ minor daughter, appellant stated:

A. He wouldn’t never let me have anything hardly to do with my child. And he wouldn’t allow me to sleep with her and he wouldn’t allow me to give her a bath.
Q. Who did give her a bath?
A. He did. And he got in the bathtub with her and he bathed her and he slept with her.
Q. Now, when you say he got in the bathtub with her, describe his condition with reference to whether he was clothed or unclothed when he got in the bathtub with her.
A. He was totally naked.
Q. Now, how frequently did this occur?
A. Every night.
A. Yes, sir. I have seen him a many of times in the living room floor playing with Leigh.
He has kissed her face and kissed her stomach as if she were a grown woman. And he would absolutely get up out of the floor with [an erection] .

On the other hand, appellee testified that appellant has threatened to kill the parties’ child and has stated that she wished the child had died at birth; that appellant “jerk her around . . . holler at her and she did cuss around her.” Appellee also cited an incident where appellant purportedly threw a portable typewriter at appellee and the child.

The trial judge, at the conclusion of the trial, entered his decree, dismissing appellant’s complaint for divorce and awarded appellee an absolute divorce on his counterclaim. The decree, as it relates to custody of the parties’ minor child, provides:

6. There was born of the marriage of the parties one child, being Elizabeth Lee Lenderman, now age 4 years, which child is in the custody of the defendant, Jerry Lenderman. It will be for the best interest of the minor child that her custody remain and be with the defendant, Jerry Lenderman, subject to visitation by the plaintiff . . .
. . . [TJhat the custody of Elizabeth Lee Lenderman should be and it is hereby awarded to the defendant subject to the rights of visitation on the part of the plaintiff as hereinabove set forth; . . .

It is well recognized that chancery cases, including child custody cases, are tried de novo on appeal and the action of the trial court will not be disturbed unless it is against the preponderance of the evidence. Moore v. Smith, 255 Ark. 249, 499 S.W.2d 634. Moreover, when the record is not fully developed and the appellate court cannot determine what the equities are, the appellate court will remand the proceedings to the trial court instead of proceeding to consider the merits and rendering a decree as should have been entered below. Arkansas National Bank v. Cleburne County Bank, 258 Ark. 329, 525 S.W.2d 82; Crease v. Lawrence, 49 Ark. 312, 3 S.W. 196; Picket v. Ferguson, 45 Ark. 177,

The record contains charges about appellee’s alleged sexual proclivities, which were not refuted.

In Matthews v. Lanier, 33 Ark. 91 (1878), the Arkansas Supreme Court held that when the parties to a lawsuit offer testimony as to matters within their knowledge, and material evidence of one party is not contradicted by the other, it must be presumed to be true. See also: Miller v. Jones, Adm’r., 32 Ark. 337 (1877).

The trial judge made no findings regarding the charges. We are unable to say that the court’s decree is supported by a preponderance of the evidence; nor are we in a position to find that custody of the parties’ minor child should be awarded to appellant.

Under these circumstances, we deem it appropriate to remand this proceeding to the trial court so that a hearing may be conducted in order to determine the merit of the charges made by appellant regarding appellee’s alleged sexual propensities so that the court may satisfy himself that it is in the best interest of the parties’ minor child to vest custody with appellee. The proceeding may encompass, but not be limited to, a detailed investigation of appellee’s living accommodations by the State Department of Social Services and consideration of the possibility that neither parent is suitable for custody of their child. Moreover, the court may consider the feasibility of vesting custody with a grandparent or the State Department of Social Services.

In awarding custody of an infant, the court must keep in view primarily the welfare of the child. Perkins v. Perkins, 266 Ark. (Decided October 3, 1979); Digby v. Digby, 263 Ark. 813, 567 S.W.2d 290 (1978); Walker v. Walker, 262 Ark. 647, 559 S.W.2d 716 (1978). The custody decree should not be framed or designed simply to conform to the wishes of a parent, nor should it be used as an instrument to reward or punish a parent.

The public has a vested interest in seeing that custody of a minor child is based on what is, in fact, the best interest of the child. Indeed, a child who is exposed to an environment which enhances his development, both physically as well as psychologically, is not only rewarding to the child, but is equally rewarding to his peers, as a role model, and to society as a whole.

Accordingly, we reverse the trial court and remand for proceedings not inconsistent with this opinion. This, however, does not mean that the trial court should divest the father of the custody of his minor child without affording appellee an opportunity to be heard.

Reversed and remanded.

Penix, J., dissenting.

Marian F. Penix, Judge,

dissenting. The ruling of the chancellor in awarding custody of the child Leigh to her father, the appellee, is supported by a preponderance of the evidence and should be affirmed.

The record is replete with appellant’s accusations against the character of the father. Not one of the accusations is corroborated. In each instance the father’s denial is corroborated. Because a final attempt to malign the father by allegations of perversion was not answered by the father, the appellant says we must accept her testimony for the truth. If there is a presumption of validity it is certainly overcome by the entire pattern of appellant’s testimony. The presumption also is overcome by the actions of the appellant herself. If she did in fact have real fears for the welfare and safety of her child she could have made more than just one visit to the child during a two-month period. The record reflects the appellant is not a timid person. Her bold personality is demonstrated by her displays of temper towards her own child and towards the appellee. It appears from the record had she been truly fearful that harm to Leigh was imminent she would not have been reluctant to report appellee to the proper authorities. The record reflects the appellant is not likely to shrink from a vindictive action towards the appellee if she had the truth on her side.

The learned chancellor is asked to sit in judgment in child custody cases. He hears all the testimony, he observes the demeanor of the witnesses, he weighs all the facts, he views the credibility of the witnesses. From all this he decides which custody situation would be for the best welfare of the child.

There is not only a preponderance of evidence but there is overwhelming evidence to support the decision of the chancellor.

I respectfully dissent.