Armstrong v. Price

• Decision Date: 28 March 1927
• Docket Number: No. 4232.,4232.
• Citation: 292 S.W. 447
• Parties: ARMSTRONG v. PRICE et ux.
• Court: Missouri Court of Appeals

292 S.W. 447

ARMSTRONG v.PRICE et ux.

No. 4232.

Springfield Court of Appeals. Missouri.

March 28, 1927.

Original proceeding by Leona Armstrong for a writ of habeas corpus to determine petitioner's right to the custody of her minor daughter as against Fred Price and wife. Custody awarded to petitioner.

Farrington & Curtis, of Springfield, for petitioner.

Martin & Martin, of Lamar, and Neale & Newman, of Springfield, for respondents.

COX, P. J.

This is an original proceeding by habeas corpus to determine the right to the custody of Mary Lee Newton, now going by the name of Helen Irene Price, an infant child five years of age.Hon. George W. Goad, an attorney of the Springfield bar, was appointed commissioner to take the testimony and report the same to this court with his finding of facts and conclusions thereon.Our commissioner has reported the testimony in full, together with his finding of facts thereon and conclusions of law, and has recommended that the custody of the infant child above named be awarded to the petitioner, who is the mother of said child.

The finding of facts is quite lengthy, and we shall content ourselves with reciting only the most essential facts found by the commissioner, which are substantially as follows: The petitioner is now 22 years old.Her father died when she was about 10 years of age.Soon. after her father's death, she was placed by her mother in the Pythian Home at Springfield, Mo., where she remained until she was 15 years of age.When about 14 years of age her mother died.She received her education at the Pythian Home, which included two years of high school grade.

Petitioner left the Pythian Home when about 15 years of age and lived about six months with an aunt in Osceola, Mo., and then for some time with a sister in Moberly, Mo.She then returned to Springfield and was employed as a house servant.At Springfield, when about 16 years of age, she was seduced and debauched by one Riley Vaughan, who was 32 years of age.As a result of her intimacy with Vaughan, the child now in controversy was born.Just before the child was born, the petitioner was admitted to the Welfare Home at Springfield, a charitable institution, which rendered her assistance.Immediately following the birth of the child, the petitioner was very ill for a considerable time.She was not in condition to care for the child and expressed a desire to have her child placed in a good home until she became able to go to work and care for the child herself.About two weeks after the birth of the child, the police matron of Springfield notified petitioner that respondents would take the child.The petitioner made no objection, and when the child was about two weeks old, the respondents came to Springfield and took possession of this child.Petitioner passively consented thereto.The commissioner states in his finding that the evidence does not disclose whether or not petitioner understood that" respondents were to adopt the child and keep it permanently, but it was so understood by the police matron and the matron of the Welfare Home and the respondents.Petitioner testified that she only consented for respondents to take the child temporarily, while the police matron and the matron of the Welfare Home testified that the petitioner gave her consent that respondents should adopt the child.Respondents did not adopt the child and gave as a reason that they had formerly taken another child which died in a very short time after they took it, and they decided to wait until they felt sure that this child would live, and, if it did, they would later adopt it, but had merely neglected to do so.

After petitioner recovered she remained in Springfield and was employed as a house servant in respetaable families until the time of her marriage, with the exception of about six months when she was ill and lived with her brother in Vendalia, Mo.She was married to her present husband, Elmer Virgil Armstrong, February 1, 1923.Her husband knew at that time that she was the mother of an illegitimate child.It was admitted at the hearing that the general reputation of petitioner for virtue and chastity was bad up to the time of her marriage.The commissioner finds that such reputation was based chiefly on the fact that she was an unmarried mother and that she had been seen a few times in company with two other young women who were of bad reputation.The commissioner further finds that since her marriage the petitioner has borne a good reputation.The commissioner finds that Mr. Armstrong, the husband of petitioner, is a man of good reputation.Before his marriage to petitionerhe was imprisoned for deserting from the army after the Armistice was signed, but since his marriage to petitionerhe has been, and is now, a good citizen and is able to support the petitioner and care for and educate the child and is willing to do so.The respondents are good people living on a farm in Barton county, Mo., and are also able to care for and educate the child.

The commissioner finds that in about a month after the birth of the child the petitioner made inquiry of an officer of the Pythian Home and of the police matron and the matron of the Welfare Home as to the whereabouts of her child.Two of these parties informed her that they did not know, and the other one refused to tell her.Later she employed an attorney to assist her in locating the child, but he failed to secure the desired information.Finally she employed a detective, and he succeeded in locating it.She then made demand for possession of the child and was refused.Litigation followed, and finally this action was brought in this court.

There is no controversy as to the law applicable to the question of the right to the custody of a minor child.Our commissioner has so well stated it that, with some omissions, we quote and adopt it as expressing our views.He states:

"It is the law in this state that in cases where the care and custody of a minor child is involved it is the duty of the court to award the custody to the natural parents, unless it is made manifest to the court that such parent for some reason is unfit or incompetent to take charge of it, or unless the welfare of the child itself for some special or extraordinary reason demands a different disposition of it by the court.Re Matter of Bernice S. Scarritt, 76 Mo. 565 loc. cit. 582, 43 Am. Rep. 768;Weir v. Marley, 99 Mo. 484 loc. cit. 494, 12 S. W. 798, 6 L. R. A. 672;In re Ingenbohs, 173 Mo. App. 261, 158 S. W. 878;State v. Ellison, 271 Mo. 416, 196 S. W. 1140;Madigan v. Madigan(Mo. App.)260 S. W. 485;Edwards v. Edwards, 84 Mo. App. 552.

"Also, it is the law that a mother cannot irrevocably divest herself of the custody of her child by any agreement, understanding, or contract except in the manner prescribed by the law relating to apprenticeship and adoption.Weir v. Marley, 99 Mo. 484, 12 S. W. 798, 6 L. R. A. 672;Matter of Bernice S. Scarritt, 76 Mo. 565, 43 Am. Rep. 768;State v. Ellison, 271 Mo. 416, 196 S. W. 1140;In re Penny, 194 Mo. App. 698, 189 S. W. 1192.

"In the case of Weir v. Marley, 99 Mo. at page 494...