Ewing, In re

• Decision Date: 26 December 1974
• Docket Number: No. 11410,11410
• Citation: 96 Idaho 424,529 P.2d 1296
• Parties: In the Matter of Charles Joseph EWING and Mary Lisa Ewing, minor children. Parent Terrence H. EWING, Petitioner-Appellant, v. Leroy GORDON, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 1296

529 P.2d 1296

96 Idaho 424

In the Matter of Charles Joseph EWING and Mary Lisa Ewing, minor children.

Parent Terrence H. EWING, Petitioner-Appellant, v. Leroy GORDON, Defendant-Respondent.

No. 11410.

Supreme Court of Idaho.

Dec. 26, 1974.

Winfred B. Moorer, Peterson, Moorer & Porter, Moscow, for petitioner-appellant.

James E. Morgan, Morgan & Morgan, Lewiston, for defendant-respondent.

DONALDSON, Justice.

Appellant Terrence H. Ewing and Gaitha Ewing initially were married February 25, 1961. Divorce followed on two occasions-May 23, 1968, and again, after remarriage, on April 28, 1970. A son, Charles Joseph Ewing, was born of the first marriage, September 5, 1966, and a daughter, Mary Lisa Ewing, was born of the second, January 30, 1969. Both divorces were granted to the wife by default, and the provisions of the second decree awarded her custody of the two children and ordered the appellant to pay child support in the amount of $50 per month per child.

Gaitha Ewing and the respondent Leroy Gordon together lived out of wedlock from April, 1970, until May 15, 1971. The latter date they were married. The family subsequently lived as a unit in their home at Pierce, Idaho. A son, Leroy Gordon II, was born May 9, 1972.

Gaitha (Ewing) Gordon died December 18, 1972. In an attempt to obtain the custody of his two children, the appellant Terrence Ewing filed a writ of habeas corpus January 12, 1973. The trial court denied the writ finding that the appellant had conclusively abandoned each child, and that the best interests and welfare of each child would be served by awarding care, custody and control to the respondent. Visitation rights were granted to the appellant. This appeal is taken from the findings of fact and conclusions of law of the district court.

Appellant's asserted error can be summarized into a basic contention that the findings of the trial court of abandonment and that the best interests of each child required that the children's custody be given to respondent were not supported by the record and as such, custody of the two children should have been awarded to him. We disagree.

The long standing rule in Idaho is that the welfare of the child is of primary consideration in determining custody rights in children. ¹ In the implementation of this rule, this Court has consistently applied the presumption that a natural parent should have custody of his child as opposed to other lineal or collateral relatives or interested parties. ² The facts at bar through Ewing's showing of natural parentage, establish in the appellant a prima facie case for custody. ³ The burden therefore shifts to the respondent to prove that Terrence Ewing has forfeited his rights. ⁴ Such proof requires a showing of clear, satisfactory, or convincing evidence that the parent is patently unfit or has abandoned his child, ⁵ or as in the factual situation at bar, where an adverse party has custody of the child for an appreciable period of time (in excess of three years), the best interests of the child dictate custody being placed with the adverse party if the facts show he is better fitted to raise the child than the natural parent. ⁶

The trial court found that Terrence H. ewing had conclusively abandoned each child. That finding, if supported by substantial, competent evidence, will not be disturbed on appeal. ⁷

The record establishes that from the date of the second divorce, April 28, 1970, until the present, appellant Terrence H. Ewing has made no payments of child support as required by the divorce decree. ⁸ During said period the appellant was financially able to make the required payments, having lived with and worked for relatives in Montana, California and Texas.

From December, 1970, until May, 1972, Gaitha (Ewing) Gordon did not know the whereabouts of the appellant. On the latter date she discovered that he was in Texas and requested that he pay delinquent income taxes (incurred during their marriage and constituting a lien on the home) in the amount of $498. This he did. The respondent, since his marriage to Gaitha (Ewing) Gordon on May 15, 1971, provided for the support of the three children, including the two involved in this matter.

From August, 1970, until December 20, 1972, the appellant did not visit his children in person, by telephone or by mail. On one occasion he did supply Christmas presents via relatives.

The appellant contends that he left town for the good of his children due to the emotional strain involved in their early visits. He states that he did not attempt to communicate with them because he felt he would not be so allowed by his former wife. He states he did not pay child support because the respondent was living in the house. This Court does not feel that the appellant's arguments establish sufficient just cause to disturb the finding of abandonment by the trial court.

In Clark v. Jelenik, 90 Idaho 592, 414 P.2d 892 (1966), this Court dealt with a habeas corpus proceeding by a natural father to obtain the custody of his two minor children. The facts were markedly similar to those presented at bar, and this Court affirmed the trial court's quashing the writ and ordering that custody remain in the stepfather. Based upon a finding of the natural father's ability to pay child support, the Court stated:

'We agree with the trial court that Clark's willful failure to provide the required support for his two minor children and his disinterest in attempting to communicate with them for 18 months is sufficient to show that he abandoned his children.' 90 Idaho at 599, 414 P.2d at 895.

The trial court's conclusion that Ewing abandoned his children is further supported by statute. The Idaho Child Protective Act (I.C. § 16-1601 et seq.) defines abandonment as follows:

"Abandoned' means the failure of the parent to maintain a normal parental relationship with his child, including but not limited to reasonabel support or regular personal contact. Failure to maintain this relationship without just cause for a period of (1) year shall constitute prima-facie evidence of abandonment.' ⁹

The jurisdiction of the trial court to determine child custody under a writ of habeas corpus is of an equitable nature and the court is given great discretion in the matter. ¹⁰ In our opinion, the trial court did not abuse its discretion in finding abandonment by appellant.

The district court also found that the best interests and welfare of each child would be served by awarding care, custody and control to the respondent. As earlier stated in this opinion, abandonment is only one of the factors considered in the welfare of a child. Where an adverse party has had custody of a child for an appreciable period of time, in this case over four years, the custody of the child will be left with that party if the best interests of the child so dictate. ¹¹ Such a finding is proper if the adverse party is shown to be better fitted to raise the child than the natural parent. As such, we reject the appellant's argument that only a mandatory showing of abandonment or patent unfitness will suffice to overcome a natural parent's right.

Application of Altmiller, supra, was a habeas corpus proceeding by a father against a grandmother to secure the custody of his minor daughter. The child had been in the custody of the wife and grandmother in excess of four years, and upon death of the mother, the father sought custody. The father had visited the child on only one occasion, and did not communicate with the child in any other manner. No support payments were made pursuant to the decree of divorce, but unlike the facts before this Court, the excuse of inability to pay was tendered by the appellant. The moral fitness of the natural father was conceded. The trial court refused to find abandonment and granted custody of the child to the father. This Court upheld the lower court's refusal to find abandonment (relying heavily upon inability to pay) but reversed and quashed the writ on grounds that the grandmother was the better fitted party and could better care for and educate the child. In so holding, this Court stated that it must take into consideration,

'(N)ot only the age and sex of the child, but its prior custody and all other facts and circumstances affecting the welfare and best interests of the child.' 76 Idaho at 527, 285 P.2d at 1068.

In Yearsley v. Yearsley, supra, a father petitioned for the modification of a divorce decree to change custody of his minor daughter to himself. This Court held that the district court was correct in leaving custody of the child with people with whom the child had lived happily for seven years. Relying heavily upon the holding in Altmiller, the finding was based upon evidence received in hearing and a report from the Department of Public Assistance.

In the case at bar, the trial court considered psychological examinations of Leroy Gordon, Terrence Ewing and Charles Joseph Ewing conducted by Kent Pilling, Psychologist, and concurred in by William H. Cone, Psychiatrist. The reports found that the welfare and best interests of each child required that custody remain with Leroy Gordon.

We are in agreement with the trial court in its finding of best interests. The record clearly shows that repondent Leroy Gordon has supported the children since the date of his marriage, May 15, 1971, to Gaitha (Ewing) Gordon and that he loves them. The evidence further shows that the two children have a strong affection for respondent Leroy Gordon and for their half-brother Leroy Gordon II. All of this, coupled with the fact the children have been living in his custody as a family unit in excess of three years, dictates that their best interests will be served by leaving them with the respondent. Charles Joseph Ewing and Mary Lisa Ewing are currently living within the security and environment of a good home. These conditions should be allowed to continue and the children must not be forced to leave...