In re Guardianship of Estate & Persons of May

• Decision Date: 01 May 1909
• Parties: In re Guardianship of Estate and Persons of ELLENA MAY and LETHA JOAN CROCHERON, Minors. JOSEPH BABINGTON, Petitioner and Respondent. A. B. CROCHERON, Protestant and Counter-petitioner, Appellant
• Court: Idaho Supreme Court

101 P. 741

16 Idaho 441

In re Guardianship of Estate and Persons of ELLENA MAY and LETHA JOAN CROCHERON, Minors. JOSEPH BABINGTON, Petitioner and Respondent. A. B. CROCHERON, Protestant and Counter-petitioner, Appellant

Supreme Court of Idaho

May 1, 1909

GUARDIANSHIP-CUSTODY OF MINOR CHILDREN-RIGHT OF PARENT.

1. Under the provisions of sec. 5774, the surviving parent, who is competent to transact his own business and not otherwise unsuitable, is entitled to the guardianship of his minor children.

2. Held, under the facts of this case, that it appears the father is competent to transact his own business and that he is not otherwise unsuitable to have the guardianship of his minor children.

3. The case of Andrino v. Yates, 12 Idaho 618, cited with approval.

(Syllabus by the court.)

APPEAL from the District Court of the Third Judicial District for Owyhee County. Hon. Ed. L. Bryan, Judge.

Application to the probate court by the step-grandfather of two minor children for the appointment of himself as guardian of such children, to which application the father of the children enters a protest and applies to be himself appointed. Judgment in favor of the grandfather. Appealed to the district court, where the matter was tried anew and judgment entered in favor of the grandfather, from which judgment the father appeals to this court. Judgment reversed with instructions to enter judgment in favor of the father.

Reversed and remanded with instructions. Costs awarded to appellant.

C. P McCarthy, and T. D. Cahalan, for Appellant.

"The father of the minor, if living, and in case of his decease the mother while she remains unmarried, being themselves respectively competent to transact their own business and not otherwise unsuitable, must be entitled to the guardianship of the minors." (Rev. Codes, sec. 5774.) The word "must" is mandatory, and confers the right upon the father in the most positive terms. (In re Galleher, 2 Cal.App. 364, 84 P. 352; Markwell v. Pereles, 95 Wis. 406, 69 N.W. 798; Ex parte Miller, 109 Cal. 643, 662, 42 P. 428; In re Campbell, 130 Cal. 380, 62 P. 613; Hernandez v. Thomas, 50 Fla. 522, 111 Am. St. 137 39 So. 641, 2 L. R. A., N. S., 203; Ex parte Davidge, 72 S.C 16, 51 S.E. 269; Watts v. Lively (Tex. Civ. App.), 60 S.W. 676; Gilmore v. Kitson, 165 Ind. 402, 74 N.E. 1083.)

"What is for the best interest of the infant is the question upon which all cases turn at last, . . . . and the answer is that the custody of the child is by law with the father unless it is apparent by satisfactory evidence that the best interest of the child demands that he should be deprived of that custody, and upon him who avers is the burden of proof; the presumptions are against it." (Weir v. Marley, 99 Mo. 484, 12 S.W. 798, 6 L. R. A. 672; In re Scarritt, 76 Mo. 565, 43 Am. Rep. 768; State v. Libbey, 44 N.H. 321, 82 Am. Dec. 223; Commonwealth v. Briggs (Mass.), 16 Pick. 204; State v. Richardson, 40 N.H. 272; Rust v. Vanvacter, 9 W.Va. 600.)

The witnesses for the petitioner do not pretend to say what Mr. Crocheron's general reputation was at the time of the trial, in the community in which he then lived. Their testimony related to a period of four or five years prior to the time of the trial. His competency and suitability at the time of his application are the questions to be considered. ( Parker v. Wiggins (Tex. Civ. App.), 86 S.W. 788; Hernandez v. Thomas, 50 Fla. 522, 111 Am. St. 137, 39 So. 641, 2 L. R. A., N. S., 203.)

J. F. Nugent, and C. M. Hays, for Respondent.

In matters of this character the best interest, the welfare, and the happiness of the infant are the all-controlling questions. For three years and eight months appellant, by his own voluntary act, did not see these children; he has become a stranger to them. (Andrino v. Yates, 12 Idaho 618, 87 P. 787; In re Lally, 85 Iowa 49, 51 N.W. 1155, 16 L. R. A. 681; In re Gates, 95 Cal. 461, 30 P. 596; Merritt v. Swinley, 82 Va. 433, 3 Am. St. 115; Richards v. Collins, 45 N.J. Eq. 283, 14 Am. St. 726, 17 A. 831; Green v. Campbell, 35 W.Va. 698, 29 Am. St. 843, 14 S.E. 212; Jones v. Bowman, 13 Wyo. 79, 77 P. 441, 67 L. R. A. 860; Willet v. Warren, 34 Wash. 647, 76 P. 274; In re Campbell, 130 Cal. 380, 62 P. 613.)

"The court upon which it devolves to determine the guardianship will pronounce upon that question in accordance with what appears to be for the best interest of the minor, taking into view not merely her temporal welfare, but the state of her affections, attachments, her training, education and morals." (Foster v. Mott, 3 Bradf. (N. Y.) 412; Badenhoof v. Johnson, 11 Nev. 87; United States v. Savage, 91 F. 490; In re Carter, 77 Kan. 765, 93 P. 584; Kelsey v. Green, 69 Conn. 291, 37 A. 679, 38 L. R. A. 473; 15 Am. & Eng. Ency. Law, 2d ed., 38, 187; 22 Cyc. 519; Schouler, Dom. Rel., 5th ed., sec. 248.)

Where bad character or reputation has once been established, the law presumes it continues, in the absence of proof to the contrary, and there is a legal presumption against any sudden change. (Mynatt v. Hudson, 66 Tex. 66 17 S.W. 396; Snow v. Grace, 29 Ark. 138; State v. Lanier, 79 N.C. 622.)

"The selection of a guardian is, of necessity, largely within the discretion of the court appointing, and it is only where there is a clear abuse of that discretion that this court will interfere." (In re Johnson, 87 Iowa 135, 54 N.W. 69; Goss v. Stone, 63 Mich. 319, 29 N.W. 735; State v. Richardson, 40 N.H. 272; Church on Habeas Corpus, sec. 446.)

SULLIVAN, C. J., STEWART, J. Stewart, Ailshie, and Sullivan, C. J., concurring.

OPINION

SULLIVAN, C. J.

This appeal involves the guardianship of Ellena May and Letha Joan Crocheron, minor daughters of A. B. Crocheron. Said children are about eight and ten years of age, respectively, at the present time. It appears that the mother of these children, Mrs. Millie Crocheron, died about November 9, 1907, in Nampa, Idaho, and thereafter on December 24, 1907, Joseph Babington, the stepfather of the mother, filed his petition in the probate court of Owyhee county praying that he be appointed guardian of said minors. Said petition sets forth the death of the mother and, among other facts, states as follows:

"That A. B. Crocheron, father of said Ellena May and Letha Joan Crocheron, is an unsuitable person to be appointed their guardian, by reason of his indigent condition, and incapacity to properly provide for, and educate them; by reason of his insobriety and lack of integrity; by reason of the fact he abandoned said children in 1903 and has failed and neglected to provide for their support since said time, and by reason of his immorality. That he is without a home, and a nonresident of Owyhee county, where said children reside. That therefore, it is necessary and convenient that a guardian be appointed to the persons and estates of said minors."

On January 4, 1908, A. B. Crocheron, the father of said minor children, presented his petition to said probate court, showing that said minor children had a certain interest in the estate of their deceased mother, and prayed that he be appointed guardian of said minors, and thereafter, on January 13, 1908, filed his objections in said probate court to the appointment of Joseph Babington as guardian of said minors, alleging that he is the father of said minors, and denying that he is an unsuitable person to be appointed guardian of them, and denying all of the material allegations of the petition of Babington which go to show that he is not competent to transact the business of the minors and not otherwise suitable to become the guardian of said minors.

After hearing said matter, the probate court granted the petition of Babington, and appointed him guardian of said minors, and issued letters of guardianship to him. He thereupon took the oath of office as such guardian and was given custody of said minors. From that action of the probate court, the father appealed to the district court. A hearing was there had, a number of witnesses testified, and documentary evidence was introduced on the trial. The court thereafter made findings of fact and conclusions of law, and entered judgment against the appellant and sustained the action of the probate court. A motion for a new trial was thereafter made and overruled by the court. This appeal is from the judgment and the order overruling the motion for a new trial.

Only one error is assigned, and that is the insufficiency of the evidence to justify the finding of facts and conclusions of law, and the decision made by the court.

Under the provisions of sec. 5774 of the Rev. Codes 1909, the father is entitled to the guardianship of his minor children if he is competent to transact his own business and not otherwise unsuitable for that trust. Said section is as follows:

"Either the father or the mother of a minor, being themselves respectively competent to transact their own business, and not otherwise unsuitable, must be entitled to the guardianship of the minor."

The second finding of fact made by the court is as follows:

"That the said A. B. Crocheron is the father of said minors and is not indigent or incapable of properly providing for said minors, or of educating them"; and the third is as follows: "That the said Crocheron is not an immoral man." By the fourth finding, the court found, "That said Crocheron is a man of insobriety and intemperate habits; that he is addicted to the use of intoxicating liquors, and that he is lacking in integrity."

The evidence amply supports said findings 2 and 3, but the evidence does not support the fourth finding of fact, and there is no evidence whatever to show that said Crocheron is lacking in integrity. The fact that a father is lacking in integrity--does not pay his debts--is no...