Day, State ex rel., v. Parker, 5306

• Decision Date: 24 October 1950
• Docket Number: No. 5306,5306
• Citation: Day, State ex rel., v. Parker, 230 P.2d 252, 55 N.M. 227, 1950 NMSC 51 (N.M. 1950)
• Parties: STATE ex rel. DAY v. PARKER et ux.
• Court: New Mexico Supreme Court

Page 252

230 P.2d 252

55 N.M. 227

STATE ex rel. DAY v. PARKER et ux.

No. 5306.

Supreme Court of New Mexico.

Oct. 24, 1950.

Rehearing Denied May 3, 1951.

Jose E. Armijo, Las Vegas, for appellant.

H. E. Blattman, Las Vegas, for appellees.

COMPTON, Justice.

The case involves the custody of Rita Beverly Day, minor daughter of appellant. At the time of her birth, April 21, 1945, the appellant was in the armed services of the Government and her mother, Beverly Clay Day, was living with her parents, the appellees. The mother died the following day and after the funeral there was some kind of an agreement between appellant and appellees regarding the custody of the child. Appellant contends that it was agreed appellees only should have the child until he was discharged from the army and was able to provide suitably for her. Appellees, on the other hand, contend that appellant agreed that they should have the child as their own until she arrived at an age when she could choose her own guardian.

Appellant was discharged August 1, 1946, and soon thereafter demanded possession of the child and this being refused, on June 16, 1947, filed suit for custody, alleging that she was unlawfully restrained of her liberty by appellees. Appellees answered, denying any unlawful restraint and alleged that they were detaining the child by virtue of the agreement with appellant. They also alleged that the child was prematurely born, very weak and requires constant attention by someone who is familiar with her case history, and that a change in custody would be injurious to her. After a hearing, the court made the following findings of fact:

'1. That Rita Beverly Day is a minor, born April 21, 1945, to Lamoine J. Day and Rita Clay Day, husband and wife.

'2. That the mother, Rita Clay Day, died April 22, 1945, as a result of childbirth.

'3. That the said Rita Beverly Day was prematurely born, approximately two or three months before the regular expectant period, was very weak, and required great care and attention to enable her to survive.

'4. That the respondents W. C. Parker and Bess Parker are the father and mother, respectively, of the said Rita Clay Day, deceased, with whom said decedent was making her home for some time prior to April 22, 1945.

'5. That the said Rita Clay Day, deceased, was buried April 23, 1945, and on said day, after the funeral, the said Lamoine J. Day and Bess Parker conferred with respect to with whom said child should remain and who should look after and care for her, and as a result of such conference, it was agreed between them that said Rita Beverly Day should remain with W. C. Parker and Bess Parker, her grandparents, who should care for, rear and educate her, and that at such conference it was stated to said Lamoine J. Day that she, Bess Parker, did not fell that she would care to look after said child and then have its father take said child away after they had become attached to her, and that said Lamoine J. Day then agreed that said child should remain with her grandparents, W. C. Parker and Bess Parker, until she was reared and was old enough to decide for herself with whom she wanted to go.

'6. That at the time said Rita Clay Day died, the said Lamoine J. Day was engaged in the Military Service of the United States of America, and was released from such service sometime in August of 1946, and that after being so released, continued to permit the grandparents of Rita Beverly Day, W. C. Parker and Bess Parker, to have the said child and look after her.

'7. That due to its immature birth, the said child's vital organs were very weak, all of which required great care and constant attention, and that Bess Parker has at all times given said child the requisite and necessary attention and care, with the result that said child has become strong and is normal in every respect, except that she is a very nervous child and requires the care of a person who is thoroughly familiar with her case history.

'8. That it would be injurious to said child at this time to change her custody from that of Bess Parker and W. C. Parker, and to place her with anyone else who is not familiar with the child's history and her habit pattern, and that Bess Parker, grandmother of said child, is thoroughly familiar with the habit pattern and case history of said child.'

From the facts thus found the court concluded that it would be for the best interest of the child to remain in the custody of appellees, pending further orders.

Subsequently, on April 12, 1948, appellant filed a petition to modify the judgment theretofore entered, alleging changed circumstances. He alleges that he has since remarried and now has a comfortable home, sufficient means and is otherwise able to provide properly for the child. It is alleged that his wife has a child by a previous marriage and that she is experienced in raising children, is fond of the child, Rita Beverly, and is willing to assume the responsibility of a mother to her. It is also alleged that appellee, Bess Parker, is in ill health, nervous, irritable and emotional and that her condition adversely affects the child. Other allegations are that appellees are trying to alienate the affections of the child, have attempted to adopt her and that they have violated the orders of the court with respect to visitation by appellant.

Upon consideration of the motion the court made the following additional findings:

'9. That since the 31st day of July, 1947, Rita Beverly Day has been in the custody of respondents; that they are fit and proper persons in all respects to have the custody of said child; that they are physically and financially able to support, care for, maintain and educate said child; and that they have a deep affection for her.

'10. That petitioner, Lamoine J. Day, father of Rita Beverly Day, has for years been employed by the Atchison, Topeka and Santa Fe Railway Company, at Melrose, New Mexico, in a position of responsibility in the Signal Department.

'11. That in the month of December, 1948, petitioner Lamoine J. Day remarried and that his wife has a child by a former marriage.

'12. That Lamoine J. Day, petitioner, is a person of good moral character and is as well able, physically and financially to support, care for, maintain and...