Campbell v. Campbell

• Decision Date: 27 November 1961
• Docket Number: No. 5332,5332
• Parties: EULA CROOKSHANKS CAMPBELL v. CLAUDE DOUGLAS CAMPBELL. Record
• Court: Virginia Supreme Court

Page 658

122 S.E.2d 658

203 Va. 61

EULA CROOKSHANKS CAMPBELL v. CLAUDE DOUGLAS CAMPBELL.

Record No. 5332.

Supreme Court of Appeals of Virginia

November 27, 1961.

Erwin S. Solomon, for the appellant.

R. B. Stephenson, Jr., for the appellee.

JUDGE: I'ANSON

I'ANSON, J., delivered the opinion of the court.

Claude Douglas Campbell, the appellee herein, was granted a divorce a vinculo matrimonii from Eula Crookshanks Campbell, the appellant, on the grounds of desertion, and custody of their two children, a boy 5 and a girl 2 years of age, subject to the right of the mother to have the children during the summer months, and she is here on an appeal from the decree.

The appellant does not challenge that part of the decree granting the appellee a divorce, but she contends that the court erred in awarding the custody of the children to the appellee.

The question presented is whether the award of the custody to the appellee is in the best interest of the children.

The evidence was heard ore tenus and is before us in narrative form. We will consider only that part which is pertinent to the question presented.

The parties were married in Covington, Virginia, in September, 1954. On the night of August 31, 1959, while they were living in Hampton, Virginia, an argument arose over the lateness of the hour which Martha Campbell, the appellee's nineteen-year-old cousin who lived with them, returned home. The appellant told her husband that if Martha did not move out of the home she would have to leave. The appellee took Martha's side of the argument and did not tell her she had to move. The appellant left the morning after the argument, taking with her their two infant children, and returned to her parents' home in Covington.

The appellant's daughter has remained with her since the date of the separation of the parties, but since April 1960, pursuant to an order of the court, the son has lived with his father.

The evidence presented on behalf of the appellee tends to show that he is a good father and of fine moral character. He is regularly employed by a railroad company in Hampton, where he purchased a home and has lived for the past five years. The children of the parties, while in their father's custody, would be cared for by Mrs. Jean Campbell Gooch, appellee's divorced sister, who would move with her own children from Covington to his home in Hampton.

Approximately three weeks after the separation of the parties the appellant and Mrs. Gooch went out in an automobile with two men in Covington. Mrs. Gooch testified that she saw the man who was with the appellant kiss her, but no other improper act occurred.

There was evidence that the appellant still cared for an old boy friend, but there was nothing to show that she had seen him since her marriage to the appellee.

The evidence presented on behalf of the appellant by five of her neighbors tends to show that she is a good mother, of excellent moral character, and that she attended church regularly with her children. Indeed, one of the appellee's two witnesses testified that the appellant was a good mother and a fine person.

The evidence is undisputed that the home of the appellant's parents, where the children would live with their mother, is a good Christian home with adequate room, suitable in every respect for rearing the children, and the grandparents would be pleased to have them.

The rules to guide the court in determining the problem of custody of children were clearly stated in Mullen v. Mullen, 188 Va. 259, 269, 49 S.E.2d 349, 354, where it was said that 'the welfare of the infant is the primary, paramount, and controlling consideration of the court in all controversies between parents over the custody of their minor children. All other matters are subordinate.'

In determining what is in the best interest of a minor child whose custody is an issue between the parents we must look to and consider the qualifications and fitness of the parents, their adaptability to the task of caring for the child, their ability to control and direct it, the age, sex and health of the child, its temporal and moral well being, as well as the environment and circumstances of its proposed home and the influences likely to be exerted upon the child. Mullen v. Mullen, supra, 188 Va. at p. 270, 49 S.E.2d at p. 354; DeMott v. DeMott, 198 Va. 22, 29, 92 S.E.2d 342, 346; Florance v. Florance, 197 Va. 432, 435, 90 S.E.2d 111, 113.

The mother is the natural costodian of her children of tender years, and if she is a proper person, other things being equal, the law favors awarding her their custody, especially when the children are girls. Brooks v. Brooks, 200 Va. 530, 539, 106 S.E.2d 611, 617-618; DeMott v. DeMott, supra,198 va. at p. 30, 92 s.e.2D AT P. 347; 6 mich. jur., DivorcE and alimonY...