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holding that claimant was not head of a family where his claim was based on his relationship with his son whose only "residence was on week-ends or during school vacations."
Summary of this case from In re PurvisOpinion
No. 77-165
Opinion delivered February 6, 1978
1. SUPREME COURT RULES — ALLEGED FAILURE OF APPELLANT TO PROPERLY ABSTRACT RECORD IN COMPLIANCE WITH RULE 9(D) — SUPPLY OF DEFICIENCY BY APPELLEE, EFFECT OF. — Appellee's contention that appellant did not fairly and properly abstract the record on appeal, as required by Rule 9(d), Rules of the Supreme Court, will not be considered where appellee supplies the deficiency in its brief. 2. HOMESTEAD — EXEMPTION OF RESIDENT FROM EXECUTION — MUST BE MARRIED OR HEAD OF FAMILY. — With certain exceptions, Ark. Const., Art. 9, 3, exempts from execution a homestead of any resident of this state who is married or the head of a family. 3. HOMESTEAD — CLAIM FOR EXEMPTION — PROOF OF DEPENDENCY OF OFFSPRING REQUIRED TO SUPPORT HEAD OF HOUSEHOLD CLAIM. — Where appellant claimed that he was the head of a family and entitled to a homestead exemption because his adult son lived with him, the question of his entitlement to exemption became a question of dependency of the son. 4. EVIDENCE — HOMESTEAD EXEMPTION, CLAIM OF ENTITLEMENT TO — PREPONDERANCE OF EVIDENCE REQUIRED. — The chancellor's finding that the testimony of appellant and his adult son that they resided in a trailer on a 40-acre tract was insufficient to establish that the tract was appellant's homestead is not against a preponderance of the evidence where other evidence showed that appellant was divorced; that he had his divorce decree amended to give him custody of his adult son in an effort to establish the homestead; that the trailer was a gift to his son by appellant's former wife; that his son was attending college on a full athletic scholarship and was not at the trailer except on weekends or school vacations; and that appellant was under no legal obligation to support his son. 5. APPEAL ERROR — EVIDENCE TO SUPPORT CHANCELLOR'S DECISION — PREPONDERANCE REQUIRED. — On review of a chancellor's decision, the test is whether it is against the preponderance of the evidence.
Appeal from Mississippi Chancery Court, Osceola District, Gene Bradley, Chancellor; affirmed.
Wilson Wilson, by: Ralph Wilson, Jr., for appellant.
Reid, Burge Prevallet, for appellee.
This appeal from the Mississippi County Chancery Court presents two questions: whether the appellant properly abstracted the record as required by our Rule 9(d), and, the appellant's claim of a homestead exemption from a judgment.
The appellee, Planters Production Credit Association, questions the appellant's fair and proper abstract of the record on appeal, as required by our Rule 9(d). We do not consider this objection because the appellee supplied the deficiency in its brief. See Arkansas Appellate Practice: Abstracting the Record, 31 Ark. L. Rev. 359 (1977).
We agree with the chancellor's decision that the appellant failed to prove he was entitled to a homestead exemption on his forty acres.
Adams and his wife were divorced in July, 1975. Adams got exclusive title to the forty acres in question. In 1976, Planters Production Credit obtained a judgment against Adams for some $65,000. In November, 1976, Planters executed on the judgment and levied on Adams' forty acres. Thereafter Adams filed a petition claiming his forty acres as exempt from execution under Article 9, Section 3 of the Arkansas Constitution. The Constitution exempts a homestead "of any resident of this state who is married or the head of a family" from execution. Adams was not married and the question below and on appeal is whether Adams was the head of a family.
Adams claimed he was the head of a family because his grown son lived with him in a trailer on the forty acres. Therefore, it becomes a question of dependency.
Adams quite candidly admitted that he was trying to establish a homestead on the forty acres on the advice of counsel. He had the divorce decree amended so that he would have custody of his son who was over twenty-one years of age. Adams offered testimony, corroborated by his son, showing that the son was a resident at a trailer on the forty acres. However, other evidence was offered that the son was a fulltime student in college, receiving an athletic scholarship for all expenses. Necessarily his "residence" was on week-ends or during school vacations. Mr. Adams testified that he was not able to give his son very much money but did from time to time give him spending money. Apparently Adams lived in the trailer but the trailer was originally purchased by Adams' former wife to be used by the son when he got married. The son was not married at the time of the trial.
The chancellor correctly pointed out that the father was not obligated to support the son by virtue of the amendment of the divorce decree, nor could the chancellor find other evidence to support a finding that Adams was the head of a family. The judge stated:
I have tried every way I can to stretch this as far as I can to establish a homestead for this gentleman but under this set of facts . . . I can't do it.
We agree with this finding and cannot say it is against the preponderance of the evidence. That is the test on review of a chancellor's decision. Sowards v. Sowards, 243 Ark. 821, 422 S.W.2d 693 (1968).
We distinguish this case from our decision in Yadon v. Yadon, 202 Ark. 634, 151 S.W.2d 969 (1941). In that case a child lived with a parent beyond the age of majority. However, there was evidence that the child had remained at the home during minority and continuously thereafter until reaching twenty-five years of age. Also, there was evidence of partial dependency and the existence of "social status of the family."
We cannot say the evidence in this case clearly shows any of these factors which would require us to reverse the chancellor's decision.
Affirmed.
We agree. HARRIS, C.J., and GEORGE ROSE SMITH and HOWARD, JJ.