Gray, Application of
| Decision Date | 14 April 1967 |
| Docket Number | No. 36331,36331 |
| Parties | Application of William R. GRAY for a Writ of Habeas Corpus. William R. GRAY, Appellant, v. Nadine Mae HARTMAN and Clara Sorensen, Appellees. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. In a case tried to the court, either in law or in equity, the presumption obtains that the trial court in arriving at decision considered only such evidence as was competent and relevant, and this court will not reverse a judgment in a case so tried because other evidence was admitted, if there is sufficient competent and relevant evidence in the record to sustain the judgment.
2. After the court's jurisdiction has been invoked by habeas corpus petition seeking custody of a child, the child is a ward of the court and its welfare lies in the hands of the court.
3. The desires of a child of 15 years of age should be given important, though not controlling, consideration in the determination as to whom her custody should be awarded.
4. The natural rights of a parent to the custody of his child are not absolute. They must yield to the best interests of the child where the preferential right has been forfeited.
5. The indifference of a parent for a child's welfare over a long period of time, and the willingness that others should assume the obligations of parents in his stead, with the development of the ties and affections that naturally flow therefrom, is a material element in determining whether a parent hs forfeited or abandoned his natural right to the custody of the child.
Frost, Meyers & Farnham, Frederick J. Stoker, Omaha, for appellant.
White, Lipp, Simon & Powers, Omaha, for appellees.
Heard before WHITE, C.J., SPENCER, BOSLAUGH, BROWER, SMITH and McCOWN, JJ., and HASTINGS, District Judge.
This is a suit in habeas corpus brought by William R. Gray, the father of Susan Marie Gray, against Nadine Mae Hartman, the half sister of the child, to obtain custody of the child. The trial court entered an order dismissing and denying the writ, and remanding custody and possession of the minor child to the half sister, and the father has appealed.
The evidence shows that plaintiff and Mae Hartman were married on August 24, 1948. On August 21, 1950, the child, Susan Marie Gray, was born to this union. In November of 1950, William R. Gray filed a petition for divorce on which a decree of divorce from William R. Gray was granted on March 12, 1951, to Mae Hartman Gray on her cross-petition. The decree awarded custody of the minor child to Mae Hartman, with visitation rights granted to the father, who was ordered to pay child support of $50 per month.
At the time of the marriage, Mae Hartman Gray continued to live at the home of her parents at 3021 Read Street, Omaha, Nebraska, where she remained with Susan and two daughters by a previous marriage, Judy and Nadine, the defendant herein, until Mae's death on May 19, 1965. On March 30, 1965, Nadine made application to modify the original divorce decree to place the minor child's custody in her. On April 5, 1965, plaintiff filed his petition for a writ of habeas corpus, the denial of which by the trial court, on the 25th day of February 1966, is the subject of this appeal.
It is obvious from an examination of the record, that plaintiff's only standing to make his claim is the fact that he is the child's natural father and sole surviving parent. Although Mae Hartman admittedly always resided at 3021 Read Street, plaintiff never claimed that as his residence, stated that he would stay there but 1 or 2 days a month, and that at sometime 9 months or more prior to the filing of the divorce petition, he separated from his wife and moved in with his parents. This would place the date of separation 6 months or more before the minor child was born.
Plaintiff testified that for about the first 5 years of Susan's life, he attempted to exercise his visitation rights, but after being rebuffed on several occasions, 'I got tired of the whole thing * * * I just got sick of the whole thing,' and for the next 10 years or so, never saw the child, or sent her birthday or Christmas cards or gifts, or inquired as to her well-being. This seems incredible in view of the fact that plaintiff on August 16, 1952, married the present Mrs. Gray, and lived in her father's house at 7161 North Thirtieth Street, approximately one block east and a block and a half north of Mae Hartman's house, until July of 1964. It is of interest to note that plaintiff had been previously married to a Betty Finch in 1937, to whom a son, Clifford, was born in 'about 1940,' and whose care and custody was with plaintiff's parents from then on through his marriage to Mae Hartman, and his present marriage. In response to a question as to whether plaintiff ever discussed with his parents that he should take on the responsibility of rearing Clifford, he replied that: 'We discussed it but he was in such good hands I felt it best just to continue on.'
The defendant is a half sister of Susan's, being one of the two children born to Mae Hartman by a previous marriage which ended in the death of the children's father in about 1942. At the time this hearing commenced in April of 1965, she was 25 years old. She was working as a teller at the Omaha National Bank, earning $340 per month, and had been so employed for 7 years. With the exception of the utilities which her grandmother paid out of a small railroad pension, and the $50 monthly child support, Nadine has been the sole support of the family during the last several years.
Since September 16, 1964, Nadine had been engaged to Airman 2nd Class Richard Schwierking, whom she met the previous January, and married in the summer of 1965. Mr. Schwierking has been closely in touch with the family situation during the course of Mae's terminal illness, has developed a close bond with Susan, and he and Nadine have discussed and made what appear to be well-considered plans for Susan's welfare.
Although the minor child gave no formal sworn testimony, she was interviewed in chambers by the trial judge and the attorneys for both parties in each...
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