Bartlett v. Bartlett

• Citation: 221 F.2d 508,94 US App. DC 190
• Decision Date: 03 June 1954
• Docket Number: No. 11714.,11714.
• Parties: BARTLETT v. BARTLETT.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

94 US App. DC 190, 221 F.2d 508 (1954)

BARTLETT v. BARTLETT.

No. 11714.

United States Court of Appeals District of Columbia Circuit.

Argued February 12, 1954.

Decided June 3, 1954.

Mr. Jean M. Boardman, with whom Mr. James E. Faust, Washington, D. C., was on the brief, for appellant.

Mr. John Geyer Tausig, Washington, D. C., for appellee.

Before STEPHENS, Chief Judge, and EDGERTON, CLARK, WILBUR K. MILLER, PRETTYMAN, BAZELON, FAHY, WASHINGTON, and DANAHER, Circuit Judges.

BAZELON, Circuit Judge.

Robert Bartlett filed a complaint against his wife, Nicole, for custody of their son, then less than two years old. He alleged that she had deserted him without cause in 1951 and had come to the District of Columbia. She and the child have continued to live in her parents' home in Washington despite his entreaties that she return to their home in New Jersey. Charging that she is selfish, unstable and therefore not a proper person to have custody, he alleged that the home of his parents offers a fine and loving atmosphere from which the child would benefit. Mr. Bartlett made no charge that his wife was unfit for custody by reason of any immoral conduct. A counter-claim for custody and maintenance for herself and the child was filed by Mrs. Bartlett. She offered her husband's "inconsiderate and miserly treatment" as the reason for having left him and stated that she was presently without adequate funds for the support of the child and herself.

After hearing extensive testimony from both parties and their witnesses, the trial court found that Mrs. Bartlett had had "reasonable cause" to leave her husband. It found that he had been miserly in providing for her and the child, and that his inconsiderateness in their marital and social life indicated that he had no love, affection or respect for her. Mrs. Bartlett was also found to be "a devoted mother who has always given the child * * * fine physical care and great love and affection" and, further, her parents' home was deemed to offer "a proper environment for the child." The court awarded custody to the wife on the ground that it was "in the welfare of the child" but also granted Mr. Bartlett the right to visit with the child in Washington and in his parents' home in New Jersey. The decree required Mr. Bartlett to pay one hundred dollars per month for the maintenance of the child, but, because Mrs. Bartlett "is self-supporting," the court concluded "in its discretion" to deny payments for her support.

Mr. Bartlett brought this appeal. His principal contention is that our decision in Towson v. Towson,¹ precludes an award of custody to his wife unless she had "legal cause" to leave him and to refuse to return. By "legal cause" it is clear that Mr. Bartlett means such grounds as would warrant a divorce or separate maintenance decree. For he says, "the gist of the matter is the lack of delictum on the part of the husband and the wrongful living apart from him by the wife."² Upon the assumption that the court meant "legal cause" when it found Mrs. Bartlett had "reasonable cause,"³ he attacks that finding as erroneous. Thus, the effect of what he urges upon us is that, in custody matters, the adversary rights of the parents must be determined because such rights, and not the welfare of the child, must be given paramount consideration.

In Towson, the wife, who had left her husband, sought a limited divorce. Although the trial court denied such relief, it granted the wife's requests for custody of their child and payments by the husband for her support and that of the child. On appeal, this court set aside the relief granted. The opinion explained that, under our statute,⁴ a husband who is willing to provide a suitable home for his wife is not obliged to support her if she lives apart from him without cause.⁵ But its only reference to the problem of custody and maintenance for the child is found in a statement, which was quoted with approval, from the New York case of Davis v. Davis.⁶ That statement is to the effect that, in a wife's unsuccessful action for a limited divorce, the court is not authorized to award custody of the child and maintenance payments for the wife and child.⁷

Significantly, the opinion in Davis pointed out that under the New York statute, the mother might obtain custody of the child in a subsequent habeas corpus proceeding even though custody had been denied upon failure of her separation action.⁸ Thus, if it be assumed that this court, in Towson, accepted the New York view reflected in the Davis case, it may also be assumed that this court denied custody to the mother only because the question had arisen in the wrong form of action — viz., divorce rather than habeas corpus. This analysis of Towson is supported by Stickel v. Stickel,⁹ decided earlier by this court, since that case involved a habeas corpus proceeding wherein we upheld an award of custody to a wife who had left her husband without grounds for a legal separation. Today, of course, it is the substance not the form of the action which governs.

No case in this jurisdiction was cited in Towson to support the view that the wife was barred from obtaining custody unless she had "legal cause" to leave her husband and to refuse to return. Nor could one be found, for in this jurisdiction it had already been settled that in exercising its discretion in the matter of custody, "courts do not act to enforce the adversary rights of either parent, but to protect the interest and general welfare of the children."¹⁰ And this principle has been applied both before and after Towson without regard to whether the issue of custody was "involved in a direct proceeding like this or as an incident of a suit for divorce."¹¹ For example, it was applied in the pre-Towson case of Wells v. Wells.¹² There, we upheld an award of custody to a wife as an incident of a divorce proceeding where, upon cross-bills, an absolute divorce had been granted to the husband. It was again applied, as we have already pointed out, in the pre-Towson habeas corpus case of Stickel v. Stickel.¹³

That the welfare of the child is the primary criterion in custody cases has been reaffirmed many times in this court since Towson was decided.¹⁴ In one of these cases, we said:

"The question for the trial court is the welfare of the children. This consideration overrides all others, even where, unlike the present case, the proceeding is in habeas corpus. The rights of the parents, in all cases, must yield to the interest and welfare of the children. * * *

* * * * * *

"Although the present proceeding is in the name of the children, appellant\'s argument is pitched, largely, upon the adversary rights of the parents; * * *. We may as well recognize that such considerations are very unreal in the case of parents and children. * * * The important consideration is that when a court is confronted with a question of custody, it is required to act as parens patriae. Under such circumstances, children cannot be used as pawns in a game of legal chess to work out conceptions of status and property rights.

* * * * * *

"* * * In an even more recent case in habeas corpus, we said: `For nearly half a century the established rule in this jurisdiction has been that the rights of the parent to the child are secondary to the welfare of the child. Its well-being, as we have said time and again, is the paramount consideration. Hence it is that, in all cases such as this, what is best for the child, rather than the natural right of the parent, is the controlling factor.\'"¹⁵

We hold that Towson must be deemed overruled to the extent that it may be construed to be in conflict with the principle that in the matter of the custody of a child, the paramount consideration is the child's welfare and not the adversary rights of the parents.

The matter of an award of custody is entrusted to the discretion of the trial court and its action may not be disturbed on appeal except for a clear abuse of that discretion.¹⁶ In exercising that discretion in the present case, the trial court relied, inter alia, upon its finding that Mrs. Bartlett had "reasonable cause" to leave her husband. We read this to mean such cause as would support a decree for separate maintenance or divorce in her favor because only such cause is recognized by law. So read, this finding determines the adversary rights of the parents. Hence it is not, under the governing principles discussed above, essential as a basis for an award of custody to Mrs. Bartlett. If, therefore, this finding were supported by the evidence, we could treat it as mere surplusage and thereupon affirm the trial court's award of custody. But a majority of my brethren believes the finding is clearly erroneous. They are unwilling to declare as a matter of law that the circumstances depicted in this record which led Mrs. Bartlett to leave her husband, irritating as they may have been to a person of her disposition, would constitute sufficient grounds for a decree of separate maintenance or divorce in her favor. Since it is not feasible to determine the extent to which the trial court's discretion was influenced by the finding held erroneous, the case must be remanded to the trial court for its reconsideration of the custody issue.

In remanding this case upon this issue, we are not to be understood as directing or even favoring an award other than to the child's mother.¹⁷ We leave the matter of the award to the discretion of the trial court. We merely direct that, in exercising this discretion, the trial court eliminate the finding that Mrs. Bartlett had "reasonable cause" to leave her husband.¹⁸ It is plain, however, that any findings on matters underlying the destruction of their home would be relevant for whatever light they may shed on the comparative fitness of the parties to care properly for the child.

Mr. Bartlett also contends that the trial court had no jurisdiction to order him to pay for the support of his child. He...