{
  "id": 1606802,
  "name": "Freddie D. Nagel v. Minnie Doris Nagel",
  "name_abbreviation": "Nagel v. Nagel",
  "decision_date": "1968-11-11",
  "docket_number": "4672",
  "first_page": "598",
  "last_page": "602",
  "citations": [
    {
      "type": "official",
      "cite": "245 Ark. 598"
    },
    {
      "type": "parallel",
      "cite": "433 S.W.2d 371"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [
    {
      "cite": "242 Ark. 292",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        8719128
      ],
      "weight": 2,
      "year": 1967,
      "opinion_index": 0,
      "case_paths": [
        "/ark/242/0292-01"
      ]
    }
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  "last_updated": "2023-07-14T16:29:50.317094+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Byrd, J., not participating."
    ],
    "parties": [
      "Freddie D. Nagel v. Minnie Doris Nagel"
    ],
    "opinions": [
      {
        "text": "Lyle Brown, Justice.\nThis is a controversy over the custody of two small children. This appeal by Freddie D. Nagel, the father, stems from the court\u2019s denial of his petition to set aside a custody order which had previously given the appellee (mother) custody, subject to visitation rights of the father.\nThe parties married in 1960 and lived together until January 1965. Judy was born to the union in September 1963, and Freddie was born in June 1964. In a contested proceeding in early 1965, the father obtained a divorce; the mother was awarded temporary custody of the children; the right of reasonable visitation was vested in the father, along with the privilege of having Judy visit with the father and paternal grandparents each weelc-end; and, provisions were made for child support to be paid the mother. Late in the same year the parties were back in court concerning custody. The mother sought modification of the week-end visitation privilege concerning Judy; the father responded that Minnie Doris Nagel had married one Travis Gibbs; that Gibbs had a drinking problem and principally for that reason the children would not be in a good environment; and that custody should be vested in the father. The trial court, after testimony, declined to modify the previous custody arrangements; however, the court did add a provision which would diminish the chances of the children being exposed to the environment of alcoholic beverages. That part of the modification which is here significant is as follows:\n\u201c. . . ; that she [mother] not allow said wards to remain at any place where alcoholic beverages are being consumed, sold, stored, or kept for human consumption. It is further ordered, that in the event of the violation of this order, this custody order be, and the same is hereby ipso facto vacated and the court will remove the custody of said wards from Minnie Doris Nagel, now Gibbs, and award custody to a qualified custodian.\u201d\nThat order was entered January 25, 1966. The recited prohibition provision formed the basis of a subsequent petition for modification, this time by the father. In June 1966, Freddie D. Nagel alleged that Gibbs was drinking excessively and in the presence of Nagel\u2019s children; that Minnie Doris Nagel Gibbs had violated the order; and, that she had permitted the children to remain in the presence of Gibbs when he was intoxicated. Nagel prayed that he, the father, be given custody of the children.\nSome ten witnesses testified at the hearing. The second husband of Minnie Doris Nagel \u2014 Travis Gibbs \u2014was the principal subject of the testimony; it concerned his drinking habits. The mother was called as a witness by the father. She conceded that since the court order of January 1966, she had on probably five occasions acceded to Travis Gibbs\u2019 request that she pick up a bottle of whisky for him at a retail outlet; and that on two of those occasions, one or both children may have been with her. However, she insisted that she left the liquor in the pick-up truck and insisted that at no time was it taken into the home. Another witness (Mrs. Ramey) for Nagel testified that she had seen Travis Gibbs, subsequent to the court order of January, consume liquor in the Gibbs home and in the presence of the children. However, on cross-examination it developed that the witness never saw the bottle because it was in a paper sack. She conceded she was not sure it was liquor. Another witness testified that a month after the January court order he accosted Gibbs asleep in a truck by the side of the road late at night; that the truck was stranded and Gibbs was intoxicated. Freddie Nagel testified that on one occasion he came upon Gibbs on the highway and Gibbs was intoxicated and belligerent; and that on February 20, 1966, and three times thereafter, Nagel witnessed Gibbs buying liquor.\nIn her own behalf, Doris Nagel Gibbs denied having knowingly violated the court order. She asserted that she did not understand the order forbade her from running errands for her husband; that to her knowledge no liquor had been consumed in her house since the January 1966 court order; that she drinks no intoxicants of any kind; that if Mrs. Ramey saw her husband drink something out of a bottle enclosed in a sack, it probably was his medicine, which is non-alcoholic.\nThat hearing was conducted November 18, 1966. The trial court kept the matter under advisement for more than eleven months, principally in the hope that the parents would develop a more cooperative attitude over their custody obligations. In the interim the court enlisted the aid of the child welfare division of the Department of Welfare, pursuant to Ark. Stat. Ann. \u00a7 22-136 (Repl. 1962). Child Welfare investigated \u201cto ascertain if there was any further evidence in existence to show that he [Gibbs] was causing his wife to be in violation of the order so that the action could be reopened for further testimony.\u201d That report was negative, that is, no additional evidence was found against the mother.\nThe chancellor refused to disturb the custody arrangements contained in his order of January 1966. The basic issue before the chancellor was whether the mother had permitted the children \u201cto remain at any place where alcoholic beverages are being consumed, stored or kept for human consumption.\u201d Specifically, it centered on the unquestioned drinking habits of Travis Gibbs \u2014 not whether Gibbs drank intoxicants in the presence of the children \u2014 but rather, whether the mother allowed these children to remain at a place where they would be exposed to the intoxicants and/or the consumption thereof. We are not unmindful of other allegations made by Nagel; we have examined the abstract and agree with the chancellor that they are without merit ; and that conclusion is not seriously questioned by appellant.\nThe phraseology of the January 1966 order was that of the chancellor. He knows better than any other person precisely what type of activity was included in his order pertaining to intoxicants. The chancellor stated in his findings that he had made \u201ca careful and deliberate evaluation\u201d of the testimony and concluded that the evidence against appellee mother did not establish a violation; at least it did not preponderate to the degree required to sustain the charge. Considering the facts that the chancellor authored the phraseology of the prohibition, heard the witnesses, had the problems of this family before him almost continuously for a period of three years, and satisfied himself that no other evidence existed against the mother \u2014 in view of those combined factors \u2014 we refuse to substitute our judgment for that of the chancellor. Holt v. Taylor, 242 Ark. 292, 413 S.W. 2d 52 (1967). At least we certainly cannot say his findings were against a preponderance of the evidence.\nAppellant here confines his argument to citing the prohibition against intoxicants, directing attention to appellee\u2019s alleged violations, and reasons that it became obligatory on the chancellor to change the custody of the children. With that reasoning we cannot agree. In a case of this nature we should cleave to the paramount concern of the chancellor \u2014 the welfare of the children. The fact that they are of tender years, and being well nutured by a mother who practices abstinence \u2014 these and other factors are certainly to be evaluated.\nAffirmed.\nByrd, J., not participating.",
        "type": "majority",
        "author": "Lyle Brown, Justice."
      }
    ],
    "attorneys": [
      "John F. Gibson for appellant.",
      "William H. Drew for appellee."
    ],
    "corrections": "",
    "head_matter": "Freddie D. Nagel v. Minnie Doris Nagel\n4672\n433 S.W. 2d 371\nOpinion Delivered November 11, 1968\nJohn F. Gibson for appellant.\nWilliam H. Drew for appellee."
  },
  "file_name": "0598-01",
  "first_page_order": 622,
  "last_page_order": 626
}