Dubois v. Johnson

• Decision Date: 07 June 1884
• Docket Number: 10,306
• Citation: 96 Ind. 6
• Parties: Dubois v. Johnson
• Court: Indiana Supreme Court

96 Ind. 6

Dubois v. Johnson

No. 10,306

Supreme Court of Indiana

June 7, 1884

From the Superior Court of Marion County.

The Judgment reversed, with costs.

F Winter and W. W. Herod, for appellant.

G. K Perrin, R. N. Lamb, S. M. Shepard and A. L. Mason, for appellee.

OPINION

Zollars J.

On the sixth day of October, 1880, appellee was divorced from appellant. She has since intermarried with George W. Dubois.

The allegations of the complaint upon which the divorce was granted were, that appellant was high tempered, used coarse and abusive language toward appellee, neglected to prepare his meals, and finally abandoned him. The complaint showed that the parties had two children, one a boy fifteen years old, and the other a girl nine years old. There were no averments of the fitness or unfitness of either party to have the custody and care of the children, nor was there any special prayer as to such custody. The prayer of the complaint was for a divorce, and for all other proper relief. Following that part of the decree granting a divorce to appellee is the following: "It is further ordered, pursuant to agreement of the parties in open court, that, until the further order of this court herein, the said plaintiff shall have the care and custody of the minor child, William Artemas Johnson, to be supported at his own expense, and that the defendant shall have the care and custody of the minor child, Orra Ann Johnson, to be supported at her own expense, except when with the plaintiff as hereinafter provided: Provided, however, that the custody of Orra Ann Johnson shall be had by the plaintiff, if he so desires, during the summer months of each year; at all other times to be had by the said defendant." It was further provided that each party should have the right to visit the child in the custody of the other.

Under this order and decree, the little girl remained with the mother until June, 1881, when she was sent to spend the summer months with her father. Instead of returning her to the mother at the end of the summer months, appellant, in August, 1881, filed his complaint in room No. 1 of the superior court, in which the divorce was granted, asking that the order and decree should be so modified as to give him the exclusive custody of the child. The complaint charged appellant as being unfit to have the care and custody of the child; that before the divorce she had been guilty of adultery with Dubois and others, and had been guilty of other lewd and indecent conduct; that since the divorce she had lived with Dubois in open and notorious fornication, etc. If appellant was guilty of the various things charged against her, there can be no question about her unfitness to have the care of the little girl. It was averred that, while appellee had been suspicious of appellant's conduct before the divorce, he did not know of it, although he had made efforts to inform himself. It is proper to observe, however, that he is shown to have known, at the time of the trial, of most of the evidence he now seeks to make available.

At the time this complaint was filed, and at the time the case was heard below, appellant had not remarried. The evidence shows, however, that at that time, and for some months prior thereto, there was a marriage engagement between her and Dubois.

Upon a hearing at special term, the court refused to modify the order as asked, but left it as originally made. After a motion for a new trial was overruled, appellee appealed to the general term, where the judgment was reversed and a new trial ordered.

From this judgment at general term appellant prosecutes this appeal. The judgment was reversed upon the ground, principally, that the court at special term erred in excluding testimony of acts of adultery, and other acts of misconduct on the part of appellant previous to the divorce. It was held that these acts should have gone in evidence as explanatory and corroborative of the evidence as to her conduct since the divorce was granted.

We think that under the statute providing for appeals to this court from judgments of the superior court at general term, the several grounds urged in that court for a reversal of the judgment are before us for decision, so far as they are discussed in this court. The controlling question is, did appellee have the right, upon the hearing of this case, to prove acts of adultery, and other acts of misconduct on the part of appellant prior to the decree of divorce, and the order and decree in relation to the custody of the children? The arguments of the respective counsel upon this point are elaborate and able. It would extend this opinion to an undue length to go into an examination of the many cases cited by counsel; from the view we take of the case it would not be profitable to do so.

As we have said, the complaint in the case for divorce did not attack the character of appellant for chastity or morality. No question was there made by any kind of averment as to her fitness to have the care and custody of the little girl.

It is argued, therefore, by counsel for appellee, that nothing was, or could have been, adjudicated in that case as to her fitness or qualification, and that, therefore, he had the right upon the hearing of this case to show her unfitness by proof of her misconduct both prior and subsequent to the divorce.

We are of the opinion that the question of the fitness or unfitness of the parties to have the care and custody of the children was just as fully before the court as if specific averments and charges upon that question had been made in the pleadings.

In cases of divorce, which result in the breaking up of the home, the law commits to the care of the court, in a measure, the safety and welfare of the children.

The statute is as follows: "The court in decreeing a divorce shall make provision for the guardianship, custody, support, and education of the minor children of such marriage." Section 1046, R. S. 1881. Logan v. Logan, 90 Ind. 107; Bush v. Bush, 37 Ind. 164; Musselman v. Musselman, 44 Ind. 106.

This duty is imposed independent of the wishes of the parents, and independent of any issues they may make in the pleadings, as to their fitness or unfitness for such custody.

In such cases, the court has the right, if necessary, to commit the children to the custody of either party, to the exclusion of the other, or to commit them to the custody of strangers. The court not only has the right, but owes the duty, to inform itself as to the character of the parents, and their ability to properly care for, nurture and train the children. And this right and duty it has, and owes, whatever the issues made by the pleadings may be, or whether or not any issues at all upon the subject are made by such pleading.

Whatever, therefore, is competent evidence to enlighten the judgment of the court as to the fitness and qualification of the parties for the care and custody of the children, the court may and should hear in decreeing a divorce.

In determining, therefore, what was before the court upon the subject, in the divorce proceedings, we are not to look alone to the issues made by the pleading, but also to the statute which fixes the duty and power of the court.

Had the court heard evidence and made the order and decree in relation to the custody of the children, as an unconditional and final decree, it must be clear that, as between the parties, it would have been a final adjudication upon the subject of their fitness or unfitness for such custody at that time. Such an adjudication would doubtless, also, have been conclusive upon the court. Of course, the welfare of the children is the prime consideration, and should be so regarded in the hearing of the case, and the making of the decree. But when the case has been heard, and a final decree entered, the doctrine of res adjudicata applies as in any other case. There must be an end to such litigation. If, in this case, appellee has the right to go into the conduct of the appellant prior to the decree awarding the custody of the child, he may do so in any number of subsequent proceedings for a modification of that decree, and thus the court may be called upon to re-try the issues already settled.

It is important to the child that there shall be an end to such litigation. No good can come to it from re-exposures of the faults of its parents. When the fitness of its custodian is once settled, that settlement should be regarded as final up to that time. If, in fact, such custodian is an unfit person, that unfitness will most likely be made manifest by subsequent conduct. In such case the court may change the custody of the child.

In making the order, however, no evidence seems to have been heard by the court, but the order was made upon the agreement of the parties. Whether the court should have acted upon the agreement, we need not here inquire. It did so act, and our opinion is that, by such agreement, each party conceded and agreed to the fitness of the other, at that time, to have the care and custody of the child as ordered by the court; that by such agreement each is as much bound as if the order and decree had been made upon testimony heard by the court, and that the order and decree based upon the agreement was an adjudication upon the question of appellant's fitness at that time to have the custody of the little girl. For...