Hewitt v. Long

• Decision Date: 31 January 1875
• Citation: 76 Ill. 399,1875 WL 8220
• Parties: MARIA HEWITTv.JESSE LONG.
• Court: Illinois Supreme Court

76 Ill. 399

1875 WL 8220 (Ill.)

MARIA HEWITT

v.JESSE LONG.

Supreme Court of Illinois.

January Term, 1875.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cass county; the Hon. CHARLES TURNER, Judge, presiding.

The facts of the case are fully stated in the opinion of the court, and in the dissenting opinion of Mr. JUSTICE BREESE.

Messrs. DUMMER & BROWN, for the appellant.

Messrs. KETCHAM & GRIDLEY, for the appellee.

Mr. JUSTICE MCALLISTER delivered the opinion of the Court:

This is a controversy between parents, about the custody of a female child, named Alice Long, born October 5, 1858. The parties to the suit were married in Cass county, this State, March 15, 1857, and from thence lived together as husband and wife in that county until the wife, appellant here, became advanced in pregnancy with said child, when, and before her birth, Jesse Long, the husband, appellee here, wilfully and without any reasonable cause deserted and absented himself from appellant, and so continued to do for the space of more than two years, whereupon she filed her bill in the circuit court of Cass county, where she had, mean-while, resided, for a dissolution of the marriage, on the ground of such desertion. Jurisdiction was obtained of the person of appellee by publication, and by his afterwards causing his appearance to be entered by an attorney in fact, and such proceedings were thereupon had in said cause that afterwards, at the September term, 1860, of said court a decree was duly entered therein in appellant's favor and against appellee, dissolving said marriage for the cause aforesaid, and awarding the care and custody of said child to appellant, the mother, also requiring appellee to pay appellant as alimony the sum of $1000, and to the guardian of said child the sum of $2000 for her support and maintenance. These sums, as appears by the decree, were respectively paid at the time of entering it.

At the January term, 1873, of said court, Long presented his application, by petition and notice, for a modification of said decree so as to take the custody of said child from the mother, and bestow it upon him. At the April term next following, the application was granted, and the mother appeals to this court.

We shall not undertake to set out in detail the evidence upon which this modification was made, but only the results of it, as gathered from a careful examination.

It appears that from Long's first desertion of his wife, he has continually absented himself from this State, with the exception of two visits, at which he barely saw Alice, and a third, when he came with two other men with a view to take her with him to Iowa, without the leave of the court, but could not find her. On this last occasion he did not see her at all. By his thus absenting himself from the State, he was almost a total stranger to the child. It appears that at the time of the hearing, Alice was upwards of fourteen years of age, and she testified in court to her desire to stay with her mother, and her aversion to being taken away by her father, who was a stranger to her. As showing reasons for the modification, Long introduced the testimony of various business men and some public officers residing in Jasper county, in the State of Iowa, to the effect that Long was the owner of, and resided upon, a farm situate about six miles from the village of Newton, in that county, the farm comprising some 2000 acres of land, mostly under cultivation, with a good house and other improvements upon it; that he was a cattle raiser, drover, and active business man; that he had a large amount of personal property, and his whole property was variously estimated at a value ranging from $50,000 to $150,000; that he was president of a national bank in Newton, had established a church and a school on his farm. It was shown that in 1867 he married the wife with whom he then lived, but had no children by her; that his house was well furnished, having both a piano and organ in it, upon which his wife played, and that she was a teacher in a Sabbath school. There is no evidence as to the age or experience of this wife, and none in respect to her, coming from any one having more than a general, casual acquaintance with her--none as to who she was, where she was brought up, what was her character before her marriage, or as to any of her personal characteristics. All that can be determined about her from the evidence, is barely that she is a woman who attends church, teaches in a Sabbath school, and plays upon a piano and organ. It is virtually into the society, keeping and control of this unknown woman, a total stranger to this young girl, that the latter is to be forcibly cast by the order appealed from. It is unnecessary to say, that a woman may attend church, may teach in a Sabbath school, and play both piano and organ, and yet be wholly unfit to be the mistress over a girl reared in tenderness and affection, as Alice has been. The father can have no particular affection for this child. The theory of natural affection which tenderly clings to a child whom a parent has never scarcely seen, and upon whom he has bestowed no care, may do for works of the imagination, but will not, in the absence of proof, be presumed in a judicial investigation. There being much to repel, and nothing to warrant, the inference of affection on his part, when we consider his heartless treatment of the mother, his voluntary desertion of the child itself until nearly fourteen years of age, are we not justified in suspecting his motives? May they not be, after all, to annoy the mother, whom he must feel conscious of having injured, or may they not be to place the child in the position of mere drudge to this second wife of whose personal characteristics we know so little? Is Long shown to be such a man as to whom no such motives should be imputed? If he possesses any degree of natural affection, why has he not exhibited it towards this child in earlier years? Without reasonable cause he deliberately deserted the child's mother when she was about to become such, and that mother never received from him one word of explanation, either by letter or message, has never even seen his face from the time of that act until she met him in court, more than fourteen years afterwards, to resist his efforts to tear this child from her very bosom, to forcibly bear away the girl to a foreign State, among strangers, where she may be immured in that country castle, a virtual prisoner, under the dominion of such a father, beyond the ear of the court of which she is ward, beyond the reach of its protecting hand, and beyond a mother's watchful eye, while we have no assurance of a counteracting influence from the second wife. Can a chancellor, under these circumstances, say, upon his conscience, it is just, it is in accordance with humane, equitable principles, to place this child's welfare, physical and moral, in such jeopardy?

But his counsel say he may have had reasonable cause for leaving this child's mother as he did, but he is too manly to disclose it. No speculations of this nature can be indulged. Appellee can not make an issue upon that question. The statute makes wilful desertion, without reasonable cause, for the space of two years, a ground for divorce. Upon that ground the bill in the original cause was filed. The decree finds all the necessary facts, and dissolves the marriage. By this decree he is conclusively estopped from alleging in this proceeding that he had reasonable cause for the desertion.

Again, the witnesses from Jasper county seem none of them to have known him there more than five or six years. Prunty, who was his attorney in fact in the divorce case, says he has known him twenty-five years. There is no witness, not even Long himself, who pretends to testify as to what means he had at the time he deserted appellant, or where, for the eight years preceding his being known in Jasper county, he had been, what he had been doing, or how he acquired his vast property, which he says amounted to from $150,000 to $200,000. There was a presumption against him for his past acts, which it was for him to overcome by proof. In short, it was for him to satisfy the conscience of the court that he was a different man from what he was when he committed the breach of his marital obligations. How has he done this? By showing that somehow, during the late civil war, he acquired a large property; that he was president of a national bank? His wealth would give him that position. By showing he had established a church and school on his farm? His property alone would do that, and the motive might be the gratification of personal vanity. That he kept his contracts with his fellow-men? Self-interest would dictate that. We have given us, to repel the presumption against him that he could not be relied on in the relation of guardian having the custody of this child, literally nothing but the general evidence of business men and public officers of Jasper county, touching his mere outward circumstances and appearances, with the simple fact superadded that in his business transactions he was generally correct. This is but the exhibit which any man may make, no matter how faithless in his domestic relations, who had in early life married a virtuous and respectable girl; lived with her long enough to fully gratify his animal passions, and until she was about to become a mother, then, without reasonable cause, basely desert her; go west; acquire, no matter how, large wealth; marry a lady capable of making a display, by being a leader in the church and Sabbath school, of playing piano and organ; establish a church, a bank and a school, and gain that sort of influential position which wealth, especially in new communities, so readily leads to. If the question were, whether the circuit court of Cass county should permit the property of a ward of that court to be taken out of its jurisdiction and intrusted to the hands of Jesse...