Brown v. Jewell
| Decision Date | 04 April 1933 |
| Citation | 165 A. 713 |
| Parties | BROWN v. JEWELL. |
| Court | New Hampshire Supreme Court |
Custody of child cannot be transferred by contract because if legal custodian may intrust the custody to others, his own responsibility may not be delegated, and there must be a reservation of control by which full custody may be resumed as occasion may require.
Transferred from Superior Court, Rockingham County; Scammon, Judge.
Suit by Marion F. Brown against Fred W. Jewell. The injunction sought by the bill was granted, the defendant took exceptions, and the cause was transferred.
Bill dismissed.
Bill in equity, to enjoin interference with the plaintiff's custody of a minor child of the defendant. The child's mother is dead. The plaintiff is an aunt of the child.
Before the bill was filed the parties each petitioned the probate court to be appointed the child's guardian. That court granted the plaintiff's petition and dismissed the defendant's. On appeals the defendant was found to be a suitable person to have the custody. His petition was dismissed, however, for lack of occasion to appoint a guardian. The plaintiff's was dismissed for lack of right to bring it.
The injunction sought by the bill was granted. The defendant took exceptions raising the issues of equity jurisdiction and res adjudicata.
Batchelder & Wheeler (Stephen M. Wheeler, orally), of Exeter, for plaintiff.
Forrest Killam, of Boston, Mass., for defendant.
I. The bill is an original proceeding relating to custody of a minor. While in form it seeks to enjoin the defendant from exercising custody, the right to an injunction admittedly depends upon the plaintiff's maintenance of her assertion that the custody ought to be reposed with her. The bill is not brought to ajd or to give emergency relief in other proceedings. Independent jurisdiction of equity to determine and award custody is therefore essential to support it.
The case of Leclerc v. Leclerc, 85 N. H. 121, 155 A. 249, 251, is decisive against the jurisdiction. Recognizing the parental custody given by the statute (Pub. Laws, c. 290, § 4) as an incident of parental guardianship without judicial appointment, it holds that "the question of permanent custody, involving as it does careful investigation of the fitness of proposed guardians and the best interests of minors, is a matter with which the probate court is well qualified to deal, and the Legislature has clearly indicated that it shall there be decided in the first instance."
The plaintiff's position that the probate petitions did not present certain issues relevant to custody overlooks the extent of the probate court's authority. Any matter which may be properly considered may be brought up in the probate proceeding. The occasion for the appointment of a guardian may be to place the minor's custody suitably as well as to have his property placed in proper charge.
The statute (Pub. Laws, c. 290, § 18) enacting that "every guardian shall have the custody and tuition of the minor," as well as the care and management of his estate, shows the unrestricted area of the probate court's field of investigation in selecting a guardian. In making an appointment the two questions are of occasion for it and "whose appointment would best promote the welfare" of the minor. Hutchins v. Brown, 77 N. H. 105, 106, 88 A. 706, 707. Any view that the court may not inquire and receive evidence in full measure and as widely as in a proceeding in equity tends to defeat a proper appointment.
Under the principle that relief may not be invoked in equity when it may be otherwise or elsewhere obtained, the plea against jurisdiction should have been sustained.
II. This disposal of the jurisdictional issue would normally leave the effect of the orders in the probate appeals undetermined. But inasmuch as it is desirable that the child's legal custody be decided and as the plea of res adjudicata relates to it, it is thought expedient to pass upon it.
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Fellows v. Normandin
...by the appeal, 'heard anew, like an original action.' Strain v. Chandler, 88 N.H. 318, 320, 188 A. 461, 463. See also Brown v. Jewell, 86 N.H. 190, 192, 165 A. 713. Reference to the evidence before the Probate Court presented no issue for decision by the Superior Court. The trial in the lat......
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...72 N.H. 71, 54 A. 702; White v. White, 77 N.H. 26, 86 A. 353. On this issue the field of inquiry is necessarily broad. Brown v. Jewell, 86 N.H. 190, 191, 165 A. 713. Included within this field are the wishes of the child, provided it is sufficiently mature to have any intelligent views or w......
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McLaughlin v. Mullin, 93-612
..."custody, whether given by statute or arising from appointment as guardian, [cannot] be transferred by contract." Brown v. Jewell, 86 N.H. 190, 192-93, 165 A. 713, 714 (1933). The superior court's jurisdiction is established in RSA 491:7 (Supp.1993): "The superior court shall take cognizanc......
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