Cook v. Cook, 8419.

• Decision Date: 17 May 1943
• Docket Number: No. 8419.,8419.
• Citation: 135 F.2d 945,77 US App. DC 388
• Parties: COOK v. COOK.
• Court: U.S. Court of Appeals — District of Columbia Circuit

77 US App. DC 388, 135 F.2d 945 (1943)

COOK v. COOK.

No. 8419.

United States Court of Appeals for the District of Columbia.

Argued April 6, 1943.

Decided May 17, 1943.

Mr. P. Bateman Ennis, of Washington, D. C., for appellant.

Mr. Edgar J. Goodrich, of Washington, D. C., with whom Miss Mildred E. Reeves and Mr. Walter J. Brobyn, both of Washington, D. C., were on the brief, for appellee.

Before EDGERTON and ARNOLD, Associate Justices, and EICHER, Chief Justice of the District Court, sitting by designation.

ARNOLD, Associate Justice.

This is an appeal from an order of the District Court in a habeas corpus proceeding which directs appellant, Annette Hord Cook, the mother of three children, 9, 12 and 14 years of age, to deliver them into the custody of appellee, George T. Cook, who is their grandfather.

The mother had originally been granted the custody of the children in 1936 by the Supreme Court of Erie County, New York, as part of a decree giving her an absolute divorce. She had then moved to Washington with the children, sending them back for short periods to visit their father. In 1939 the father refused to return the children and asked the New York court for a modification of the custodial order.

At the hearing before the New York court it appeared that the grandfather was a man of means and able to offer the children many advantages. The mother, who had been given only $5 a week alimony and $15 a week for maintenance of the children, had not been able to maintain them in a home separate from her mother in Washington.

On the basis of this evidence the New York court granted a temporary order giving custody to the grandfather except for holiday seasons.

Thereafter the mother established a separate home to receive the children in Washington. When this was done she applied to the New York court for custody of the children. At this second hearing in March, 1941, it appeared she was earning only $135 a month. The children were in school in Buffalo and wished to remain there. A welfare report showed they were well cared for. On this evidence the New York court continued the temporary custody in the grandfather.

In the summer of 1941 when the children came to Washington the mother refused to return them. She put them in school in Washington, where they have been ever since.

The grandfather took no action in court to regain custody of the children until August, 1942, when he filed the present proceedings. However, the $5 a week alimony and $15 a week support of the children was cut off on the ground that the mother was acting in contempt of the New York order.

At the hearing below it appeared that the mother had established an adequate bome concerning which counsel for appellee stated in his brief: "We do not doubt that conditions in the home of the appellant are pleasant and that the children are well-fed, properly clothed and cared for as stated by counsel, nor do we doubt the love and affection between them and their mother." The mother's earnings had slightly increased since the order of 1941. Over a period of a year the children had become accustomed to Washington schools. They testified that they desired to remain with their mother. There is no claim by the grandfather that the mother is morally disqualified for custody of the children.

To award the grandfather custody under these circumstances will result in taking three young children out of schools in which they are established and have made friends, and sending them away from their mother, who has an adequate home for them, against their wishes. The only apparent reason for doing so is the fact that their grandfather's means will be sufficient to give them greater educational and material advantages.

The record does not show any specific obligation by the grandfather as to future education, beyond the assumption that he intends to be generous.

Whether these indefinite material advantages justify taking the children away from the mother against their wishes is a question upon which this court cannot pass. We can only review the question of whether the trial court properly exercised its discretion with a view to the present welfare of the children.

In awarding custody to the grandfather the trial court made no findings on the question of the present welfare of the children, because it considered itself to be bound by the New York court order of 1941. Its only finding was as follows: "I find no such change in circumstances or conditions to warrant this Court in not giving full faith and credit to the decree of the New York court, which had...