Howard v. Howard

• Decision Date: 20 April 1945
• Citation: 187 S.W.2d 276,300 Ky. 60
• Parties: HOWARD v. HOWARD.
• Court: Kentucky Court of Appeals

187 S.W.2d 276

300 Ky. 60

HOWARD v. HOWARD.

Court of Appeals of Kentucky

April 20, 1945

Appeal from Circuit Court, Harlan County; James S. Forester, Judge.

Proceeding between Ethel Howard and Hamp L. Howard relating to the appointment of a statutory guardian for the step daughters of party first named. From a judgment setting aside a judgment of the county court appointing the party first named as statutory guardian, she appeals.

Reversed.

James Sampson and J. K. Beasley, both of Harlan, for appellant.

J. B Carter and Astor Hogg, both of Harlan, for appellee.

TILFORD Chief Justice.

This is an appeal from a judgment of the Circuit Court setting aside a judgment of the County Court appointing appellant statutory guardian of her three stepdaughters aged respectively 14, 12, and 9 years. The reasons given by the Circuit Judge for reversing the finding of the County Judge that appellant was the proper person to be appointed are that appellant's reputation for morals is 'under attack in this record', and that her property interests are antagonistic to those of the infants. Little more than a summary of the facts will suffice to show our reasons for disagreeing with his conclusion.

E. M (Zeke) Howard, the father of the children, was killed by one Eddie Philpot on the night of December 25, 1943. His first wife, the mother of the children, died in 1936, and in January, 1938, he married appellant who was then 22 years of age and employed at the Indian Rock Cafe in the outskirts of Middlesboro. In December, 1938, he was convicted of buying and selling 'C C C Clothes' and sent to the penitentiary where he remained for eighteen months. During his confinement appellant operated his grocery and liquor store, and converted the $87 which he had left her into a profit of several thousand dollars. This money she used in improving the property, erecting new buildings, and converting the house in which they had lived into an attractive home equipped with running water, new furniture and all necessary conveniences. Thereafter she retired from the liquor business and established a bus line, operating seven or more busses, from which, apparently she has derived a substantial income. But even more remarkable than these accomplishments were the benefits bestowed by her upon the children. Had they been her own flesh and blood, and had her means been unlimited, she could not have done more, if the testimony of the family physician, the minister, the local leader of the Girl Scouts, peace officers, numerous neighbors, and the sister of the deceased mother of the children, is to be believed. Describing the conditions existing Zeke's home at the time of his first wife's death, this last-mentioned witness, who came from her home in Illinois to testify in behalf of appellant, stated that 'it was nothing but a hog pen'. Asked as to the present condition of the home she answered 'I didn't recognize it. It is a home now'. The children attend school and Sunday school. They are members of the B. Y. P. U., the 4-H Club, and of the Girl Scouts whose camp they visit during vacations. They play on the High School Band, have a pony, swimming pool, and bicycles; and their love and gratitude to appellant for her care and devotion was manifest in their testimony. Appellant has no children of her own but that those supplied by fortune awakened in her a fully developed maternal love could not be doubted by anyone who dispassionately reads this record.

Such a reading of the record will also dispose of the charges against appellant's moral character. True, a few witnesses testified that her reputation was bad, but a greater number, more free of partisanship and of better standing, testified that it was good. Those who disparaged it apparently based their conclusions upon the fact that appellant had been employed in a cafe at the time of her marriage; that she had visited Zeke's home after his first wife's death; and that since Zeke's death she had been seen frequently in the company of a State Highway Patrolman. But, according to her testimony and that of the officer himself, her association with him was on trips to Middlesboro in company with her father for the purpose of interviewing witnesses who would testify as to the circumstances under which her husband had been killed, in order that his slayer might be indicted and brought to trial. Norhing is shown that would indicate that either the Indian Rock Cafe or the store which appellant conducted during her husband's confinement in the penitentiary bore an unsavory reputation. Moreover, her employment at the Indian Rock Cafe lasted only a month and a half. She freely admitted that she had visited Zeke's home before their marriage, but denied that her relations with him had been improper.

Zeke died intestate and was survived by his father and mother who, because of their age, declined to seek appointment as the children's guardian. The appellee, Hamp Howard, is Zeke's brother, and his reason for seeking the apoointment, which the County Judge denied, is, in his own language, as follows:

'A. At first I was aiming for Ethel (appellant) to be appointed, and I came to Harlan to see about some deeds, to release a deed, I believe, and in looking it up I found where they had put this deed on record twice, that is, for the property I sold to Zeke, and it was so fresh I knew I made it to Zeke and Ethel's name was not on it, and that on record twice, so I said--(Defendant objects--Objection sustained)

'Q. Tell what you did. A. I decided she was trying to take the children's property.

'Q. Who was the grantee in that deed when it was recorded the second time? A. The second record showed the deed was to E. M. Howard and wife, Ethel Howard, I believe those were the words.'

Appellant denied that she had had her name inserted as a grantee in the deed, and in this she is fully corroborated by the County Court Clerk who testified that Zeke, unaccompanied, came to her office and insisted that his wife's name be added, and that she, the clerk, made the addition.

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