Haynes v. Fillner

• Decision Date: 11 January 1938
• Docket Number: 7739.
• Parties: HAYNES v. FILLNER.
• Court: Montana Supreme Court

75 P.2d 802

106 Mont. 59

HAYNES v. FILLNER.

No. 7739.

Supreme Court of Montana

January 11, 1938

Rehearing Denied Feb. 2, 1938.

Appeal from District Court, Rosebud County, Sixteenth District; S B. McKennon, Judge.

Action by Wilma F. Haynes against George W. Fillner, to obtain the custody and control of a minor daughter of defendant. Decree for plaintiff, and defendant appeals.

Affirmed.

Stanley E. Felt, of Billings, for appellant.

Brown & Jones, of Billings, and Daniel L. O'Hern, of Miles City for respondent.

ANGSTMAN Justice.

Plaintiff brought this action in October, 1935, to obtain a decree awarding to her the custody and control of Marion Fillner, a minor daughter of defendant, then of the age of seven years.

In general, the complaint alleged that defendant had placed the child in the custody of plaintiff in July, 1932, pursuant to an agreement that plaintiff should have the exclusive control and custody of the child, the mother of the child being then deceased; that pursuant to the agreement plaintiff had ever since then clothed, fed, maintained, and educated the child in her home, and that the best interests of the child would be subserved by permitting her to remain in the custody of plaintiff. Defendant, by answer, put in issue most of the material allegations of the complaint, and likewise asked the court to assume jurisdiction over the person of Marion Fillner as a court of equity and award the custody to him. The trial took place in December, 1936, resulting in a decree awarding the custody to plaintiff, with the right of visitation in defendant at reasonable times.

Defendant has appealed from the judgment. The gist of his contention is that neither the complaint nor the evidence, viewed in the light most favorable to plaintiff, warrants the judgment appealed from. Specifically he contends that the complaint does not make out a cause for awarding the custody of the child to plaintiff, and that the evidence falls short in the same respects as does the complaint. No contention is made that the evidence goes beyond the allegations of the complaint; hence we shall but consider the sufficiency of the evidence to support the judgment. The sufficiency of the evidence automatically determines the sufficiency of the complaint, for the attack upon each is based upon the same ground.

The court made the following findings of fact:

"I. That the wife of the defendant, George W. Fillner, died on or about the 15th day of January, 1929, leaving the defendant and two children, Russell, age about three years, and Marion, age about eleven months, surviving her; that shortly thereafter the defendant arranged with a sister of the deceased wife at Mandan, North Dakota, to care for said children, and that said sister did care for them until on or about the 9th day of December, 1930, at which time both children were brought to Forsyth, Montana, and turned over to the plaintiff under an agreement that the plaintiff was to care for them for a trial period at the compensation of $50 per month, and later the plaintiff and defendant were to make other arrangements if advisable. The court further finds that the defendant was dissatisfied with the care given to the children by the sister at Mandan, and the relations between the sister and the defendant were discordant at the time he took the children from her and brought them to Forsyth, Montana.

II. That in early May, 1931, the defendant took the boy Russell with him to Wisconsin, and later to Mississippi, where he had established relations with another relative, a brother-in-law; that in July, 1931, the defendant returned from Mississippi to Forsyth, Montana, and informed the plaintiff that he wanted to take Marion with him to join Russell and himself in Mississippi, and asked her opinion in relation to taking Marion; that the plaintiff, while having become much attached to Marion and though reluctant to break the attachment, informed the defendant that if the two children could be together with him in a home, she did not wish to obstruct that end, and told him to take Marion; that the defendant thereupon did take Marion to Mississippi, and thereafter, in the spring of 1932, the husband of the plaintiff, F. F. Haynes, wrote to the defendant at Waynesboro, Mississippi, and informed him that the plaintiff was going to Des Moines, Iowa, on a visit and asked about arranging a visit with Marion; that as a result of correspondence between the parties, the defendant wrote said F. F. Haynes that there had been difficulty between the defendant and the brother-in-law, a Mr. Speegs, and his wife, and that Marion could return to Montana, and advised said Haynes in said letter, 'I guess Marion is with you to stay;' and the defendant in the same letter requested Mr. Haynes to try and find a suitable home for the boy Russell; that in a telephone conversation with the plaintiff at Des Moines, Iowa, shortly thereafter, the defendant told Mrs. Haynes, the plaintiff herein that he was turning Marion over to her for keeps; that shortly thereafter the plaintiff went to Springfield, Illinois, and got Marion, and at that time it was definitely understood between plaintiff and defendant that the plaintiff would not again take Marion on a temporary basis, but would take her permanently to rear and educate without expense of any nature to the defendant; that such was the agreement and understanding and became, by the conduct of the parties, an executed oral agreement amply substantiated by the evidence, the terms of which were that the plaintiff received the child Marion from the defendant with the definite understanding and agreement that the plaintiff would take the sole custody and control of the child and that the defendant would relinquish same to her; that under the terms of said agreement, the plaintiff returned the child to her home at Forsyth, Montana, and ever since said time has cared for said child in a fitting and proper manner without any expense whatsoever to the defendant; that after taking said child at Springfield, Illinois, by the plaintiff in July, 1932, and up to the present time, the defendant at no time ever offered in any way to contribute to the support of Marion or at any time ever manifested any attitude other than in support of the said agreement, until about the month of October, 1935, at which time the defendant visited the office of F. F. Haynes and informed him that he had just discovered that Marion had been registered in the school as 'Marion Haynes,' and demanded that said Haynes sign a paper that Marion was only temporarily in the custody of Mrs. Haynes, the plaintiff herein; that from January until May, 1935, the defendant was out of employment in his capacity as a railroad fireman, and during this period of time lived at the Haynes home, and that while there, the school card of Marion was officially made out in the name of 'Marion Haynes,' and that the boy, who had been living in the Haynes home since June of 1934 continuously up to October, 1935, was registered as 'Russell Fillner'; that the defendant had full knowledge at all of those times of the fact that Marion was registered as 'Marion Haynes,' and made no objection or protest of any nature at any time until the visit to the office of said Haynes; that the court further finds that the said child is now registered in the schools as 'Marion Fillner,' and that it is agreeable to the plaintiff that she retain said name.

III. That the defendant returned his boy Russell to Montana in the latter part of June, 1933, and brought him to the Haynes home where he lived with his sister until September, 1933, at which time a brother of the defendant from Casper, Wyoming, came and took said boy to Casper to live and go to school; that said boy did live with them at Casper until June, 1934, at which time the said brother of the defendant informed him that he could not keep the boy longer; that the defendant was then working in the state of Washington as a farm hand and he informed the Haynes family that he would have to get another place for the boy Russell to stay; that the Haynes then informed the defendant in Washington that they would take care of the boy and have him live with him at Forsyth, and they did receive said boy at Billings, Montana, and continued to care for said boy continuously from June, 1934, to October, 1935, and clothed and cared for said boy and educated him; that the father and defendant returned from the state of Washington in the summer of 1934, and stayed at the Haynes home for about two months and a half in the fall of said year; and stayed continuously at the Haynes home from about January 1st, 1935, to June, 1935, when he went to Flathead Lake in Montana, where he worked for said Haynes on a cabin; that the work and labor and cash payments made by the defendant substantially paid for the board and room of the defendant himself and for that of his son during the times they lived in the plaintiff's home. The court expressly finds, however, that the defendant at no time contributed to the support of Marion Fillner in any manner whatsoever after he had delivered said child under the agreement at Springfield, Illinois, to the plaintiff, up to the time of this trial, and never offered in any way to do so, and that the defendant by his conduct at all times since the delivery of said child to the plaintiff at Springfield, has ratified and approved and recognized the agreement entered into with the plaintiff herein.

IV. That the defendant is a single man and does not maintain a home, but rooms and boards, although the court finds that the defendant owns a home which he rents at Forsyth, Montana that the defendant proposes, in the event the child is turned over to him, to send her to Casper,...