dissenting. I must respectfully dissent. The trial court based its decision in this cause on our Supreme Court’s holding in Pender v. McKee, 266 Ark. 18, 582 S.W. 2d 929 (1979). Although the decision is instructive regarding certain aspects of the case at bar, it is in no way controlling. I do believe that the trial judge was correct in relying on Pender in his finding that the appellant had failed to significantly support the parties’ minor child for a period of one year. However, I believe that he has misread the Pender decision when deciding that appellant failed to pay the court ordered child support without justifiable cause. In his findings, the trial judge found that the appellant testified that the reason he did not pay child support was that visitation was made so difficult that, to him, visitation appeared to be contingent upon payment. At this point in his findings, the trial judge indicated that he did not feel that this was any justification for nonpayment of support because of the Pender decision. I strongly disagree with this interpretation of the decision in Pender. Some confusion may have arisen because of a statement by the court in Pender to the effect that a father’s duty to support his child cannot be excused on the basis of the conduct of others, unless that conduct prevents him from performing his duty. In support of this statement, the court in Pender cites four of its decisions, all of which arise out of divorce and support actions initiated in chancery court proceedings.
It is true that ordinarily the chancery court has no power to remit accumulated court ordered support payments. Kirkland v. Wright, 247 Ark. 794, 448 S.W. 2d 19 (1969). There are, however, circumstances in which the court is justified in withholding judgment for unpaid child support installments such as when the mother, having custody, deprives the father of temporary custody or visitation rights by failing to comply with the terms of a valid decree governing those rights. In such cases, the chancery court is not required to give judgment for arrearages accruing during the time the mother’s actions have defeated the father’s visitation rights. Bethell v. Bethell, 268 Ark. 409, 597 S.W. 2d 576 (1980); Holley v. Holley, 264 Ark. 35, 568 S.W. 2d 487 (1978); Sharum v. Dodson, 264 Ark. 57, 568 S.W. 2d 503 (1968); Massey v.James, 251 Ark. 217, 471 S.W. 2d 770 (1971); and Antonacci v. Antonacci, 222 Ark. 881, 263 S.W. 2d 484 (1954). The facts in the Massey and Antonacci cases are similar. In Massey, the parties agreed that the mother would have custody of the parties’ son for nine months and that the father would have custody during the three summer months. The agreement also required the father to make child support payments of $60 per month during the periods that the son was with the mother. When the divorce decree was entered, the father was living in Arkansas and the mother was living in California with the child. The decree provided that the father would bear the expense of bringing the child to Arkansas for the summer and returning the child in the fall. Sometime after the divorce, the father, who had remarried, drove to California to pick up his son for the return trip to Arkansas. The mother interposed various obstacles to the change of custody and trip to Arkansas. The court did not require Massey to pay the child support for the summer months and, in so holding, stressed the fact that there was no indication that the son would suffer if the payments were not made.
In the instant case, the parties were divorced in Oklahoma, she was awarded custody and support and later moved to Arkansas. Approximately two years later, she married Dr. Money. At this time, the appellee, now Mrs. Money, informed the appellant that Dr. Money desired to adopt the parties’ son, Gary. The appellant refused. Irrespective of appellant’s refusal, Dr. and Mrs. Money filed an action to adopt Gary. Appellant would not agree and the action was dropped by Dr. Money. This action is at least the third effort, legal or otherwise, that Dr. Money has pursued in an attempt to adopt Gary. Appellant has related that he has had difficulties in obtaining his visits with his son and testified that he was refused visitation if he failed to make a child support payment. Appellant testified at trial that he knew his son was being financially cared for and for a fifty-one week period he refused to send support because of spite due to the problems he encountered in trying to exercise visitation rights with his son. On the other hand, appellant did support his son over a nine year period except for the fifty-one week period previously mentioned. He admittedly was late in his payments from time to time, but Mrs. Money never attempted to seek enforcement of the child support during the fifty-one week period nor at any other time. Rather, she allowed the fifty-one week period to build up in child support arrears with the obvious purpose of filing the adoption proceedings which she has manifested an intent to consummate since her marriage to Dr. Money.
We review de novo the proceedings below and will affirm unless the decision is clearly erroneous according to Rule 52 of the Arkansas Rules of Civil Procedure. From the record, I believe that the appellant was justified to withhold child support under the circumstances described by the evidence below, which is a legal consideration that the trial judge failed to apply. The evidence clearly reflects that appellant encountered visitation problems because of difficulties existing between appellant, Dr. and Mrs. Money. Our courts would not, nor would I, allow a father to avoid his duty to pay child support when he is so obligated. Neither should the mother be permitted to in any way withhold or make difficult the visitation privileges to which a father is entitled. Only when a mother has withheld or made difficult the visitation rights have our courts justified the nonpayment of child support. The facts at bar justified, under our case authority, the appellant to withhold support, and I would, therefore, deny the adoption. Therefore, I would reverse and remand with directions to vacate the trial court’s decree of adoption.
I am authorized to state that Cooper and Cloninger, JJ., join in this dissent.