Gilmore v. Kitson
| Citation | 74 N.E. 1083,165 Ind. 402 |
| Decision Date | 30 June 1905 |
| Docket Number | 20,491 |
| Parties | Gilmore v. Kitson et al |
| Court | Supreme Court of Indiana |
Rehearing Denied October 26, 1905.
From Monroe Circuit Court; James B. Wilson, Judge.
Action by Russell H. Gilmore against Flora D. Kitson and another. From a judgment for defendants, plaintiff appeals.
Reversed.
J. E Henley and Elliott, Elliott & Littleton, for appellant.
Duncan & Batman, for appellees.
This is a habeas corpus proceeding instituted by appellant against appellees to obtain the custody of his infant daughter, Ruth A. Gilmore. The writ was duly issued, and a return thereto made by appellees. Appellant's exception to the return was overruled, and a reply filed. The court, upon hearing the evidence, made a general finding in which it is said "that the father, Russell H. Gilmore, is a proper person to have the care and custody of such child, but that the best interest of the child will be conserved by leaving the child in the care of the defendant Flora D. Kitson." It was accordingly adjudged that the custody of the child be awarded to Flora D. Kitson until the further order of the court. Appellant's motion for a new trial was overruled, and an exception properly saved.
The assignments of error, stated in different forms, require us to determine the correctness of this finding and judgment.
Appellees' counsel suggest that the record does not show the filing of the general bill of exceptions, but in this they are in error. The criticisms upon the binding of the transcript and form of the clerk's certificate are not founded upon substantial defects, and will be disregarded.
The controlling facts shown by the evidence, briefly summarized, are as follows: Appellant is thirty-two years of age, and lives in Indianapolis, where he has lived all his lifetime, with the exception of two years. He is a linotype operator, has permanent and steady employment, and earns about $ 100 per month. He was married June 20, 1900, and lived with his wife at his home until eleven months prior to her death, when, on account of failing health, at the request of her sister, his wife went to her sister's home at Bloomington, where she remained until her death, May 5, 1904. Ruth A. Gilmore was born during wedlock on September 25, 1901. Appellee Flora D. Kitson and her mother waited upon appellant's wife during her last illness, except for eight weeks, when they had the assistance of a nurse. Appellant paid the nurse and the doctors, and sent to his wife and child, while at the home of appellees, money, gifts and flowers. Appellant lives with his mother, a widow, and single sister, in a comfortable six-room house situated in a good neighborhood. He smokes cigarettes and cigars, and drinks beer occasionally, but otherwise is of good habits, good moral character, good disposition, industrious, kind and affectionate. His mother and sister are of good character, kind and loving disposition, fond of children, and desirous of caring for the child as a member of the family.
About one month before her death, appellant's wife made a will containing the following provision:
When appellant's wife was very near to death, appellees called in some neighbors, and in their presence, as well as the presence of the family, appellant's wife asked him to promise to give the custody of the child to Mrs. Kitson; but this he very kindly, but firmly, refused to do. During the funeral exercises Mrs. Kitson remained with the child, locked in a rear room of the house, and caused a policeman to be present for the purpose of preventing any effort to take the child from her, and she afterwards refused to allow appellant to take it from her house. After the death of Mrs. Gilmore, Mrs. Kitson was, without appellant's knowledge or consent, appointed guardian of Ruth A. Gilmore by the Monroe Circuit Court, upon a showing that the child had articles of personal property bequeathed to her by her mother, of the value of $ 50. Appellee Flora D. Kitson is a kind and affectionate woman, strongly attached to the child, and her husband is a peaceable and kind man, and earns from $ 250 to $ 400 per month. They live in a comfortable home in Bloomington, and are in every way competent to be entrusted with the care of the child, and have no children of their own. They have radical views with regard to the use of tobacco and intoxicants, and, from studying magazine articles, have become believers in the hygienic theory of treatment of diseases. Appellant's wife was kept in a tent and given no medical treatment during her illness. An estrangement grew up between appellant and appellees by reason of conflicting views with regard to the proper treatment of his wife, and a belief on his part that appellees were seeking to alienate her affections from him.
Both under the common law and the statutes of this State, the natural parents are entitled to the custody of their minor children, except when they are unsuitable persons to be entrusted with their care, control and education. Jones v. Darnall (1885), 103 Ind. 569, 53 Am. Rep. 545, 2 N.E. 229.
The mother can not, by testamentary provisions or otherwise, deprive the father of his right to the custody of their minor child after her death. Moore v. Christian (1879), 56 Miss. 408, 31 Am. Rep. 375; Stapleton v. Poynter (1901), 111 Ky. 264, 62 S.W. 730, 98 Am. Dec. 411, 53 L. R. A. 784; State, ex rel., v. Reuff (1887), 29 W.Va. 751, 2 S.E. 801, 6 Am. St. 676; Taylor v. Jeter (1862), 33 Ga. 195, 199, 81 Am. Dec. 202; In re Neff (1899), 20 Wash. 652, 56 P. 383.
The appointment of the legal guardian was also ineffectual to deprive the father of his right to the custody of the child. Dalton v. State (1842), 6 Blackf. 357; Lee v. Back (1868), 30 Ind. 148; Bryan v. Lyon (1885), 104 Ind. 227, 54 Am. Rep. 309, 3 N.E. 880; Brooke v. Logan (1887), 112 Ind. 183, 2 Am. St. 177, 13 N.E. 669.
This court has frequently said that, in settling disputed claims to the custody of an infant, the interest of the child is the paramount consideration. It is apparent from the record that the assumed force of this rule persuaded the trial court into the conclusion reached. We are not disposed to qualify or criticise that principle, but we can not conceive that it should be invoked or enforced against a parent under no disabilities, unless he has forfeited his right by misconduct, or lost it by voluntary relinquishment or by long acquiescence in the care and custody of his child by another. The assumed welfare of the child does not clothe one person who may enjoy wealth or high social position with a commission to seize and hold the child of another less favored, and usurp parental rights for the sole reason that he may be able to afford such child more of the artificial advantages of life. The most appropriate application of the principle obtains when the child in some proper way becomes a ward of the court. The parents in a suit for divorce or other proceeding may properly confer jurisdiction upon the court and invoke its judgment with regard to the custody of their minor children, and in such a case it can be said without qualification that the interests of such children shall be the paramount consideration. Leibold v. Leibold (1902), 158 Ind. 60, 62 N.E. 627; Joab v. Sheets (1885), 99 Ind. 328; Bullock v. Robertson (1903), 160 Ind. 521, 65 N.E. 5; Johnston v. Johnston (1895), 89 Wis. 416, 62 N.W. 181.
The state, upon its own motion, may, in the interest of a child, make application to a court to deprive a parent of its custody, where such parent has abandoned or forfeited parental rights by reason of moral turpitude, vicious habits, cruel and inhuman treatment, or other conduct forbidden by statute. Van Walters v. Board, etc. (1892), 132 Ind. 567, 18 L. R. A. 431, 32 N.E. 568.
The principle of the welfare of the child may be applied to defeat the claims of a...
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