Ernst v. Flynn

• Decision Date: 08 July 1964
• Docket Number: No. 41,41
• Citation: 129 N.W.2d 430,373 Mich. 337
• Parties: John C. ERNST, Petitioner, v. Martin FLYNN and May Flynn, his wife, Respondents. In the Matter of the Custody of Gerri ERNST, a Minor.
• Court: Michigan Supreme Court

Page 430

129 N.W.2d 430

373 Mich. 337

John C. ERNST, Petitioner, v. Martin FLYNN and May Flynn, his wife, Respondents In the Matter of the Custody of Gerri ERNST, a Minor.

No. 41.

Supreme Court of Michigan.

July 8, 1964.

Addendum July 9, 1964.

Howard H. Campbell, Petoskey, for appellant.

McGinn & Menefee, Cheboygan, for appellee.

Before the entire bench.

BLACK, Justice (for affirmance).

'A child is not a chattel nor subject to ownership as such.' ¹

As 1964 has brought another change of our personnel, a little child may lead the remaining parent-minded--distinguished from child-minded--Brethren from out that legal fog into which they seem to stray when a child custody case arrives here. That child could be little Gerri Ernst. And if Gerri, armed as she is with innocence and supreme legal right, cannot get through to such Brethren as her case comes to decision, then the probate and circuit judges of Michigan--by what they have done and are now doing--ultimately will get across to all of us an indelible fact; a fact which, no matter how long judicial ears are covered and judicial gaze is averted, no member of this Court can ignore much longer.

First: Our probate and circuit judges, confronted as they have been in recent years by 2 irreconcilable lines of cases, ² manifestly and righteously are deciding that they must continue to follow the overwhelming weight of Michigan authority. Witness Judge Falahee in Herbstman; Judge Breakey in Paton; the Washtenaw probate and circuit judges in In re Mathers, 371 Mich. 516, 124 N.W.2d 878; Judge Bowles in Potter v. Potter, 372 Mich. 637, 127 N.W.2d 320; ³ Judge Baum in Kaiser v. Kaiser, 373 Mich. 31, 127 N.W.2d 887, and now Judge Fenlon in this case of Gerri Ernst. All have decided today's issue by ascertaining and then applying the answer to a rightfully controlling question: What is best for the child?

That question and its ascertained answer will continue to govern in our lower courts until this Court, if it ever does so by majority vote, flatly and openly overrules the line of cases commencing with Corrie v. Corrie, 42 Mich. 509, 4 N.W. 213 and ending most recently with Kaiser v. Kaiser, supra. Surely, with the handing down of Potter, and comparison of judicial signatures thereof with cases like Herbstman and Mathers, our circuit and probate judges are entitled to ask of my parent-minded Brethren, again as in I Kings, ch. 18, v 21, 'How long halt ye between two opinions?' , or, as the revised standard version has it, 'How long will you go limping with two different opinions?'

By no means does the foregoing suggest contumacious conduct of subordinate court judges. They simply maintain course by following the nationally sensible weight of law as written rather than the errant results of certain temporary crotchets our reports on recent occasions have disclosed. I, too, refuse to regard such temporal aberations as obligatory and will continue thus until (if it ever happens) flat overruling of the Corrie through Kaiser 'best interests' doctrine takes place. Should that occur, then and only then will I consider it my duty, and that or our probate and circuit judges, to rule in child custody cases that a parent's legal right controls over the best interests of the child whose custody is in issue.

We of this Court know not how many more circuit and probate judges are continuing to follow the Corrie through Kaiser rule. We may estimate well, however, judging from the foregoing. For every like case arriving here on appeal there must be hundreds which, for want of the wherewithal for appeal, have come and are coming to final decision in probate or circuit. That is the critical reason for pertinently certain precedent as well as good precedent, and that is the reason for the steady challenge some one here must register: 'Overrule Corrie and like cases or conform thereto.'

Second: In the case before us Judge Fenlon found, firmly and without reservation, that Gerri's best interests require that she remain in the home of and under the care of her maternal grandparents. That part of the judge's findings is completely ignored in the proposed per curiam opinion for reversal. That opinion seizes instead upon Judge Fenlon's statement (taken out of context from the center of a long paragraph) that 'I certainly can't find from the testimony that Mr. Ernst is an unfit person.' Then follows--in the per curiam opinion--a proposed holding that such parental fitness is decisive of right on the part of Mr. Ernst to custody of Gerri. But what of Gerri's best interests? Why, so far, there is not one word of concern, in that opinion, for such interests. There seems to be much concern, though, for the interests of Gerri's three-time wed father, into whose home the per curiam opinion would thrust Gerri with 4 strange children of 2 separate marriages and a strange stepmother.

The present Mrs. Ernst brought to the Ernst home 2 children of her first marriage, and Mr. Ernst brought to the home 2 children by his first of 3 marriages. There is, too, as admitted by Mr. Ernst on cross-examination, the 'possibility' of more to come, his age and the age of his present (third) wife considered. And then, too, Gerri's social security check seems to be of interest to Mr. Ernst. That check has been regularly deposited, by the grandparents, to Gerri's credit for Gerri's education. There is no commitment by Mr. Ernst, in the record, to continue such deposit.

This is not all. As in Greene v. Walker, supra, Gerri's mother died ultimately as a result of Gerri's birth, Gerri meanwhile remaining with the grandparents. Here, too, as in Greene, the hospitalized mother declared her dying wish with respect to Gerri. One of the floor supervisors of the hospital is testifying:

'A. * * * Rosemary [Gerri's mother] was a friend. I have talked with her many times, both in the hospital and out.

'Q. All right, was she confined to the hospital during her last illness continuously from the time she entered up to date of her death?

'A. Yes, sir; she was.

'Q. How long a period of time was she confined in the hospital?

'A. Gosh, I am not sure. At the time I would say probably 4 or 5 weeks, but I am not sure on that.

'Q. Did sho realize her condition when she was in the hospital?

'A. Yes. She was told her condition before her baby was born, that her life was in danger. She knew that.

'Q. She knew that pregnancy could possibly result in the loss of her own life?

'A. Yes; she was told that.

'Q. Did you have any conversations with her relative to the up-bringing of her child?

'A. Oh, many times. And, there were many others in the hospital that she talked to also, and she said that her one concern was that her husband wouldn't get the child, and she knew he didn't want her, that it would be only out of spite; that his mother wanted her, but she was scared to death that that would happen, and she felt it wasn't good for the child. And that is what she seemed more concerned about than anything else.'

There is more in the record to the merit of the best interests of this child. But there is no occasion for detail thereof since our province, on appeal in the nature of certiorari to review habeas corpus, is not that of a fact weigher and finder. Our task instead is simply that of determining whether there is evidence supportive of the order brought here for review. I turn to such legal point.

That there is such supportive evidence no counsel, and no member of this Court, has undertaken to deny. ⁴ In such circumstances we have no right--no right whatever--to overrule or disregard Judge Fenlon's finding and order upon the best interest question; 'the determination of the judge as to the facts being conclusive.' Attest: Corrie v. Corrie, supra, followed to the point in In re Sneden, 105 Mich. 61, 62 N.W. 1009; Carpenter v. Carpenter, 149 Mich. 138, 112 N.W. 748 and In re Gould, 174 Mich. 663, 140 N.W. 1013. Apparently, though, some of my Brethren have decided that this Court may and should--of insouciant will--consider these habeas corpus cases de novo and decide that the naked right of a 'fit' parent is superior to the child's right to have its best interests judicially ascertained and upheld.

Now if such de novo hearing is to be the 'law,' better that we summon Gerri and all witnesses into our Court for examination, interview and personal appraisal before undertaking judgment afresh and anew; also that we independently investigate and appraise both the present and the proposed home life of little Gerri. Our judgment then might attain a plane equal in value to that the the circuit judge below; the judge who has certified to us that Gerri should stay where she is. Until that at least is done, I propose to stand by the cited rule of review; that this Court, on certiorari bringing up circuit court habeas corpus testing child custody, does not hear or try the certified cause anew, and that its limited function is ascertainment, on due assignment, whether an error of law has been committed. I find no such error here.

Third: In recent Mathers, 371 Mich. 516, 539, 558, 124 N.W.2d 878 this Court divided 3 ways respect to result as well as reasoning. The case arrived here on appeal from jury tried Chapter 12A issues; ⁵ circuit court verdict and judgment of child neglect having been entered against the mother of a fatherless child. On that occasion the prevailing opinion, signed by Justices Smith, Dethmers, Kelly and former Chief Justice Carr with present Chief Justice Kavanagh concurring in the result, deigned no reference to or respect for the rule that the best interests of a custodytorn child are paramount. In that case, dissenting, I collected most authority extant to the point of pre-eminent child welfare, omitting however (in issue having arisen under said Chapter 12A) certain authorities dealing specifically with circuit court habeas corpus for child custody. Such authorities are to be found assembled in...