Blow v. Lottman, 9313

• Decision Date: 24 August 1953
• Docket Number: No. 9313,9313
• Citation: 59 N.W.2d 825,75 S.D. 127
• Parties: BLOW v. LOTTMAN.
• Court: South Dakota Supreme Court

Page 825

59 N.W.2d 825

75 S.D. 127

BLOW v. LOTTMAN.

No. 9313.

Supreme Court of South Dakota.

Aug. 24, 1953.

Rehearing Denied Sept. 25, 1953.

John E. Burke, William F. Clayton, Sioux Falls, for appellant.

Van Buren & Vogt, Dell Rapids, for respondent.

LEEDOM, Judge.

This action was started by a mother to get custody of her two young daughters from their paternal grandmother. The trial court entered a judgment awarding custody of the girls to the grandmother. The mother has appealed to this court. We reverse the judgment entered below.

Appellant questions the sufficiency of the findings of fact to support the judgment and of the evidence to support the findings. Inasmuch as we reverse the circuit court for failing to make a finding of an ultimate fact essential to a determination of the issues involved, it is not necessary for us to review in detail or to pass on the sufficiency of the evidence to support the findings and judgment entered.

The girls when about 7 and 5 years old were voluntarily placed with the grandmother by their mother soon after the death of their father for temporary care and custody as claimed by the mother. After having the children for about 6 years the grandmother refused to return them to the mother claiming she had abandoned them and that she was not a fit and proper person to have custody.

By nature and under the common law and by virtue of statutory provisions, SDC 14.0303 and 14.0506, a parent has a preferred legal right to custody of his or her own children. But under the common law and modern statutes as well, SDC 14.0307 and 43.03, the state through the courts has a right under proper circumstances to terminate the parental right and deprive the parent of custody. To find the proper delicate balance between this right of the parent and the right of the state is the problem confronting courts in such cases as this where the parent but not the other claimant has a legal right.

In the inevitable conflict shown in the reported decisions between the antiquated rule that gave a father an absolute legal right to custody of his child and the ultra modern rule, not generally followed but representing the opposite extremity in the evolution of the law, that regards a child as a creature of the state and parental control as a power emanating from the state, there is in our opinion this helpful guide well recognized in the body of the law: the parents' right to custody over their own children should never be disturbed except upon a clear showing against the parent of 'gross misconduct or unfitness, or of other extraordinary circumstances affecting the welfare of the child'. 39 Am.Jur., Parent and Child Sec. 16. The decisions of this court have been in harmony with this principle. See Engle v. Yorks, 7 S.D. 254, 64 N.W. 132; Haglund v. Egge, 41 S.D. 433, 171 N.W. 212; and Ex Parte Summers, 43 S.D. 617, 181 N.W. 831. The fitness of this mother is therefore a matter of first consideration and her disqualification as custodian is a prerequisite to an award of custody to any other person; and so we hold that there must be a finding of the trial court on the ultimate fact of unfitness for a proper disposition of the case. In so holding we give effect to a rule prevailing in California, Kansas, Ohio, North Carolina, New Hampshire, and undoubtedly in numerous other jurisdictions. See Stever v. Stever, 6 Cal.2d 166, 56 P.2d 1229; In re Whites' Guardianship, 84 Cal.App.2d 624, 191 P.2d 466; Stout v. Stout, 166 Kan. 459, 201 P.2d 637; Tanner v. Tanner, 78 Ohio App. 178, 62 N.E.2d 654; McEachern v. McEachern, 210 N.C. 98, 185 S.E. 684; and Sheehy v. Sheehy, 88 N.H. 223, 186 A. 1, 107 A.L.R. 635. Since the mother's unfitness is necessarily an issue in the action, on which issue depends this very substantial parental right, a finding of the ultimate fact of her unfitness would be necessary under the general rule of trial procedure recognized by this court in Ellens v. Lind, 65 S.D. 620, 624, 277 N.W. 40, 42; and in Tschetter v. Ray, 28 S.D. 604, 606, 134 N.W. 796, 797.

The trial court in this action made findings that the mother 'spent a great deal of time at a place * * * where beer was sold', 'that she neglected her said children to a considerable extent; and was guilty of misconduct, all as shown by the evidence herein'; and on other evidentiary matters concerning the mother's remarriage following the death of the father of the children and the character and reputation of appellant's second husband; and finally found that 'it would not be for the best interest of said children, and either of them, in regard to their temporal and mental and moral welfare to be given into the custody' of the mother and her husband and on...