Brown v. Beachler

• Decision Date: 18 October 1946
• Docket Number: 28197.
• Citation: 68 N.E.2d 915,224 Ind. 477
• Parties: BROWN v. BEACHLER.
• Court: Indiana Supreme Court

68 N.E.2d 915

224 Ind. 477

BROWN v. BEACHLER.

No. 28197.

Supreme Court of Indiana

October 18, 1946

Appeal from Monroe Circuit Court; Q. Austin East Judge.

Floyd L. Young, of Vincennes, and Forrest P. Jones of Bloomington, for appellant.

George Earl Huntington, of Bloomington (Alfred Evens and Leroy Baker, both of Bloomington, of counsel), for appellee.

GILKISON Judge.

This habeas corpus action was brought by appellant to obtain the care and custody of her infant daughter, Wilma Jean Beachler aged seven years.

The facts in the case are substantially as follows: The appellant and Wayne Beachler were married February 5, 1938, and two children were born to them. Wilma Jean, being the older, was seven years old in 1945. They were divorced June 19, 1942 and the father was awarded custody of both children. Appellant married her present husband July 25, 1942. Prior to the divorce, appellant, her husband, Wayne Beachler, and the children spent part of the time at the home of the appellee, a sister of Wayne Beachler and aunt of Wilma Jean. After the divorce in February 1942, Wilma Jean, by the request of her father, Wayne Beachler, began living with appellee, and she has lived there continuously since except from August 11, 1942, to November 8, 1943, when she lived with appellant. Appellant visited Wilma Jean four or five times at appellee's home between February, 1942 and October 25, 1945, the date of the trial, and gave her a Christmas box in 1943. Appellee has cared for and supported the child at her sole personal expense during the time it has lived with her, except she received a government allotment check on June 12, 1944, and has continued to receive such checks regularly since. Part of the time the checks were $62.00 a month and later $50 and appellee sent half the money to the support of the other child. Appellee's evidence showed that Wilma Jean's kness are normal now. She was not normal when appellee first got her; she was starved; she didn't walk until she was nineteen months old. She can run now. The doctor said it was due to the treatment she had had the first two years of her life.

Both appellant and appellee qualified, so far as the opinions of their neighbors show, as proper persons to have the care and custody of the child.

The father, Wayne Beachler, was killed in action in the service of the United States Army near Strausbourg, France, June 29, 1945.

The trial court found for appellee and rendered judgment accordingly. A motion for new trial was denied, and an appeal to this court perfected.

Of course parents if not divorced have the natural right to the custody of their children, and in case either parent dies this right goes to the survivor. § 8-110, Burns' 1933. Even in cases where there is a legal guardian for minors other than a parent, our statute provides 'that the father of such minor (or if there be no father, the mother, if suitable persons respectively) shall have the custody of the person and the control of the education of such minor.' § 8-109, Burns' 1933. These statutory provisions are largely declaratory of the common law. Jones et ux. v. Darnall, 1885, 103 Ind. 569, 2 N.E. 229, 53 Am.Rep. 545; Orr et al. v. State of Indiana, 1919, 70 Ind.App. 242, 255, 123 N.E. 470; Berkshire v. Caley, 1901, 157 Ind. 1, 8, 60 N.E. 696.

However, while these legal rights will always be considered and respected by the courts, they are not absolute rights to be enforced under all conditions. Such rights are secondary and subordinate to the welfare and happiness of the child. Its welfare is the paramount and controlling question to be determined in providing for its custody and control. The law will not allow that either parent can have such an interest in their child as will conflict with its present or future welfare. To that welfare the claim and personal desire of the parents must yield. Berkshire v. Caley, supra; Bryan v. Lyon et al., 1885, 104 Ind. 227, 233, 3 N.E. 880, 54 Am.Rep. 309; Julian v. Julian, 1916, 60 Ind.App. 520, 524, 525, 111 N.E. 196.

The duty of fixing the care and custody of infants when a home is broken by divorce, or otherwise, is one of the most vital that comes before trial courts, and one of the most difficult with which they have to deal. No matter for which party the decision may be given, usually much may be said for the rights of the other. The trial...