Bourn v. Hinsey
| Decision Date | 16 December 1937 |
| Citation | 183 So. 614,134 Fla. 404 |
| Parties | BOURN v. HINSEY et ux. |
| Court | Florida Supreme Court |
On Rehearing Oct. 18, 1938.
Further Rehearing Denied December 3, 1938.
Habeas corpus proceeding by Irene Stewart Bourn against George W Hinsey and wife. To review an adverse judgment, petitioner brings error.
Affirmed on rehearing, with directions.
On Petition for Rehearing.
COUNSEL McCord & Collins, of Tallahassee, for plaintiff in error.
Gregory & Towles, of Quincy, for defendants in error.
This writ of error is from a final judgment in a habeas corpus proceeding, wherein the custody of a girl--now nine years of age--was awarded to the respondents, a paternal aunt of the child and the aunt's husband, rather than to the petitioner, the mother of the child. There is little dispute about the facts.
The parents resided in Mississippi, where the child was born. A few months thereafter the mother became ill with tuberculosis. She soon entered a sanitarium and remained there until she was discharged, as cured, in May, 1935. When the mother entered the sanitarium the child was in the custody of the father, who apparently being unable or unwilling to have the custody of the child, delivered the child to his sister, one of the respondents in this suit. The child has been in the custody of these respondents ever since. There is no doubt but what they have given the child every attention, affection, and care that they could bestow upon her. They have a comfortable home in Quincy, Fla., where the husband is a foreman carpenter for a tobacco corporation, with an annual income of $1,500 and perquisites from the farm of his employer.
The mother of the child is a woman of even more modest means. She owns no home and is now residing with her parents, tenant farmers in Mississippi. Apparently her only means of support at the present time, aside from what her parents are able to do for her, is the sum of $35 per month paid her by her husband, the father of the child, as alimony.
The petitioner brought a suit in Mississippi against the father of the child, for separate maintenance and alimony. Both parties still reside in Mississippi. The court, having found the petitioner, as well as the father of the child, fit to have custody of her, awarded the custody to the mother for nine months in the year and the father for three months in the year. The child was then in Florida.
Two questions are presented to the court: First, is the Florida court required to give full faith and credit to the decree of the chancery court in Mississippi, regardless of any considerations involving the welfare of the child; and, secondly, whether the welfare of the child requires her custody to be awarded to the petitioner or the respondents.
Upon authority of Beekman v. Beekman, 53 Fla. 858, 43 So. 923, it appears that the domicile of the father being in Mississippi, the child was incapable of making a choice of a domicile in Florida, independently of the father's domicile. Hence, the Mississippi court did have jurisdiction over the child, because it had jurisdiction over both parents, who were before the court. The proceedings of the court in Mississippi are admissible in evidence. The provisions of the final decree will be followed by the court here, unless changed conditions or the welfare of the child require a different adjudication. Minick v. Minick, 111 Fla. 469, 149 So. 483.
In this case we have no showing of any changed conditions. There is nothing to indicate that these respondents, who no doubt deserve the undying gratitude of the mother, for their care of the child at a time when she was unable to care for her, should in any was entitle them to have the permanent custody and control of the child. The mother should not be required to pay this debt of gratitude by giving up her child.
The slight difference between the pecuniary advantages of the petitioner and the respondents, while it is worthy of consideration, can in no way induce the court to award the child to those best able financially to provide for the child. The material things of life are important, but far less important than the natural love, affection, and care that a mother can, and that this mother no doubt will, give to her child. The welfare of the child is paramount.
She lost her child through no fault of her own. In so far as she has been able, she has continually kept in touch with the child. She is now able to give the child a home, proper schooling, care, and attention. In all likelihood the child--who now unfortunately hardly knows her mother--at this tender age of nine, might express a preference to be with the respondents. Even though the record is silent upon this subject, the present inclination of the child should not prevail in this case over the considerations which should entitle a mother to have her own child.
This mother should have the custody of her child. She is fit. She is willing. She is able. She has done nothing that should deprive her of the custody of her child. She walked down through the valley of the shadow of death and brought this child into the world. She should have her child.
Therefore, we hold that a mother, who is morally fit and able to care for her own child, in her own style of living, is entitled to have her child, even as against those who have, during almost the child's entire life, raised the child and have given her every love and attention that they were able to give in their style of life, unless the welfare of the child requires a different adjudication as to her custody.
The judgment is reversed, and the cause remanded for the entry of a judgment awarding the custody of the child to the petitioner.
WHITFIELD, J., did not participate because of sickness.
On Petition for Rehearing
Irene Stewart Bourn of Columbia, Mississippi, brought this proceeding in habeas corpus against George W. Hinsey and his wife, Allye Hinsey, of Quincy, Florida, to recover custody of Amy Earline Bourn. The petitioner is the natural mother and the defendants were the foster parents of Amy Earline Bourn, who is ten years old. Final judgment was entered for defendants and petitioner took writ of error. In an opinion filed December 16, 1937, the judgment below was reversed. We are now urged on rehearing to review and set aside this judgment.
Being a controversy to determine the custody of the minor, Amy Earline Bourn, the sole question with which we are confronted is whether or not her best interest requires that we recede from our former judgment and affirm the Chancellor.
The record discloses that George J. and Irene Stewart Bourn were married in November, 1927, and that Amy Earline Bourn was born to this union in October, 1928. Shortly after the birth of the latter, somewhere from six to nine months, it was discovered that Irene Stewart Bourn was afflicted with tuberculosis; she was immediately confined in the State Tuberculosis Sanitarium near Magee, Mississippi, where she remained a patient, except for short intervals until May, 1935, when she was discharged as cured. She brought this proceeding November 25, 1936.
When the petitioner was committed to the Tuberculosis Sanitarium, Amy Earline Bourn was given by her father to George W. and Allye Hinsey to be raised and educated. Allye Hinsey was the sister of George J. Bourn and consequently the paternal aunt of the child. She is now ten years old and has spent all these years in the Hinsey home where it is admitted that she has received excellent moral, religious, educational, and physical attention. During the time the mother was confined in the sanitarium, the Hinseys carried the child to see her mother regularly. Since being discharged, she has been permitted without objection to visit the child in the Hinsey home.
The petitioner denies that she even consented that her child should be turned over to defendants but the evidence and circumstances are to the contrary. It is shown that in 1932 the child was carried by Mr. and Mrs. Hinsey to Mississippi and turned over to its father and mother who kept it about three months and returned it to the Hinseys because they were not in a position to look after her and Mrs. Bourn's people could not take it.
It is shown that petitioner and her husband are separated and have not lived together for a long time, that they have been in litigation and have charged each other with infidelity, that George J. Bourn is a disabled war veteran, that his only income is a total disability pension in the sum of one hundred dollars per month and that his affliction and habits are such as to unfit him to be the custodian of the child.
As to petitioner, it is shown that she lives with her father and mother in Mississippi where they are tenant farmers and do not own any house or land of their own but move from year to year and live from what they make by farming on rented land. It appears that they had a chance to take the child when its mother went to the sanitarium but declined to do so. The petitioner has no income except thirty-five dollars per month alimony paid her by her husband.
The record shows that defendants own a modern home and that George W. Hinsey has for years held a responsible position with a salary of fifteen hundred dollars a year and perquisites, that they are highly respected citizens, have raised the child as if it were their own, in fact have known no difference between it and their own child, have bestowed on it every kindness and affection, that they are giving it religious training, the best of public school advantages, medical and physical treatment and intend to give...
To continue reading
Request your trial
-
Kendrick v. Everheart
...S.Ct. 1208, 31 L.Ed.2d 551 (1972); Behn v. Timmons, 345 So.2d 388 (Fla. 1st DCA 1977). See also Bourn v. Hinsey, 134 Fla. 404, 416, 183 So. 614, 619 (1938) (Buford, J., concurring specially).9 Cf. Brown v. Bray, 300 So.2d 668 (Fla.1974); Engle v. Engle, 323 So.2d 658 (Fla. 3d DCA 1975); Bra......
-
Roosma v. Moots
...the circumstances existing when the decree was rendered." (See cases therein digested and Ex parte Inman, (Cal.) 89 P.2d 421; Bourn v. Hinsey, (Fla.) 183 So. 614; Turnage v. Tyler, (Miss.) 184 So. 52; Hachez v. Hachez, (N. J.) 1 A.2d 845; Evans v. Taylor, (Tex.) 128 S.W.2d 77; Cousineau v. ......
- Wilson v. State
-
Fourths v. Warren
... ... That action ... of the trial court was affirmed by this Court. What the ... Supreme Court of Florida said in Bourn v. Hinsey, ... 134 Fla. 404, 183 So. 614, 617, is helpful on this question ... The Court used this language: "But when the ties of ... blood run ... ...