In re Perry F. Pinney v. Theodore Sulzen

• Decision Date: 10 January 1914
• Docket Number: 18,890,19,000
• Parties: In re PERRY F. PINNEY, Petitioner, v. THEODORE SULZEN, Respondent.; In re PERRY F. PINNEY, Appellant, v. THEODORE SULZEN, Appellee
• Court: Kansas Supreme Court

137 P. 987

91 Kan. 407

In re PERRY F. PINNEY, Petitioner, v. THEODORE SULZEN, Respondent.;

In re PERRY F. PINNEY, Appellant, v. THEODORE SULZEN, Appellee

Nos. 18,890, 19,000

Supreme Court of Kansas

January 10, 1914

Decided January, 1914

No 18,890. Original proceeding in habeas corpus.

No 19,000. Appeal from Douglas district court; CHARLES A. SMART judge. Opinion filed January 10, 1914. Reversed.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. DIVORCE--Custody of Minor Child Awarded to Wife--Death of Wife--Father Entitled to Custody of Child. Where a husband and wife having children are divorced and the court in its decree awards the custody of a child to each of them, and the mother dies while the child awarded to her is in infancy, the father then becomes entitled to the custody of that child, and this right continues in him unless it appears that he is an unfit person to have the control and care of his child.

2. SAME--Welfare of Child Considered--Unfitness of Father Must be Proven. In determining to whom the custody of a child should be awarded its welfare is to be regarded more than the technical legal right of the parent, but where an application made by a father for the custody of his child after the death of its mother is resisted by a third party on the ground that the father is immoral and unfit to have its custody he will not be deprived of such custody unless the objection is sustained by clear and satisfactory proof.

3. SAME. Courts will not disturb the family relation nor take a child from its parent merely because a third person seeking its custody may have larger means and is therefore able to give the child greater comforts, wider education and the promise of a larger inheritance.

4. SAME. In the present case it is held that the testimony does not establish that the father is unfit to be entrusted with the custody and guardianship of his child.

Joseph G. Waters, John C. Waters, Lee Monroe, James A. McClure, C. M. Monroe, all of Topeka, J. S. Amick, of Lawrence, and W. S. Roark, of Junction City, for the petitioner and appellant.

Robert Stone, George T. McDermott, both of Topeka, and James H. Mitchell, of Lawrence, for the respondent and appellee.

Johnston, C. J. Benson, J. dissenting.

OPINION

JOHNSTON, C. J.:

In proceedings in habeas corpus Perry F. Pinney seeks to obtain the custody of his daughter, Helen, who is about seven years of age. He and the mother of Helen were married in Omaha, Neb., in April, 1900. Two children were born to them, Harvey on March 23, 1902, and Helen on September 24, 1906. There was discord in the family relations and a separation occurred shortly after the birth of Helen. In 1908 the petitioner began an action in a court in Iowa to obtain a divorce from his wife, and in November of that year a judgment of divorce was entered but it was granted because of the fault of the petitioner. In the decree it was provided that the petitioner should have the custody of Harvey while the custody of Helen was given to Mrs. Pinney. In the early part of 1910 Mrs. Pinney was married to Fred Moore, and she died on May 14, 1911. Just prior to her mother's death Helen was taken to the home of Sulzen who was married to a sister of Helen's mother. The petitioner had taken out insurance on the life of his wife payable to the children upon her death. When she died he was appointed guardian of the person and property of the children by the probate court of South Dakota, the principal purpose of the proceeding being the collection of the insurance. Under the direction of that court he arranged with the Sulzens to care for and maintain Harvey and Helen for a time at the rate of $ 10 a month and to furnish $ 25 a year to pay for clothing the children. In February, 1913, Mrs. Sulzen died, and after that time the petitioner requested and tried to obtain the custody of Helen. Upon notice served upon the respondent the petitioner applied to the Iowa court which granted the divorce for a modification of the judgment giving him the custody of his daughter, and on March 18, 1913, the decree was amended, the court finding that the welfare of the children demanded that both of them be given into the absolute custody of the petitioner, and it was adjudged that he be given the custody and control of Helen and that Theodore Sulzen, in whose possession she then was, should deliver her to the petitioner. The respondent, Sulzen, refused to surrender the custody of Helen, and on February 18, 1913, a proceeding in habeas corpus to recover her custody was instituted by petitioner in the probate court of Douglas county, where the respondent resided, and the decision being adverse the petitioner appealed to the district court, and the judgment of that court being also against him he brought the case here by appeal. About the same time he began an original proceeding in habeas corpus in this court asking for the custody of his daughter, in which considerable additional testimony has been taken and presented.

The respondent bases his claim to the custody of the child, to whom he is not related, first upon the ground that the mother of Helen, shortly before her death, requested Mrs. Sulzen, now deceased, to take care of Helen, and that she and the respondent together consented to do so, and also on the further ground that the petitioner is an unfit person to have the custody of his child. The respondent owns and resides upon a farm. He married a sister of the mother of Helen when he was about thirty-eight years of age and has no children of his own. He testifies that he loves the child and is willing to make her an heir, but no steps have been taken towards the adoption of Helen or to give her the status of an heir. Since the death of his wife the only woman in charge of his home has been the wife of the tenant who occupies the farm house. Testimony was offered to show that shortly after the death of his wife respondent made an arrangement with a relative, who had a wife and children, to take charge of his place and care for Helen, and witnesses stated that these parties were worthy people and likely to give her proper care. It appears, however, that shortly afterwards they moved away from the farm and another tenant and his wife, strangers to the child, had taken their places. Some testimony was given to the effect that for a part of the time at least Helen had not been given proper care by any one. Although respondent appears to be kind in his disposition and generous in his offer to care for Helen the testimony satisfies us that he is not situated so as to give her the attention and care that a girl of her years should have. If she can not have parental care and attention she should have, at least, the watchful and tender care and nurture that only a woman interested in her welfare can give.

The question remains whether she should be given into the custody of her father. Upon the death of her mother the custody of Helen naturally and legally passed to the petitioner, and it should be given to him unless he is manifestly unfit and incapable of performing his parental obligations to the child. This right was considered in Swarens v. Swarens, 78 Kan. 682, 97 P. 968, where it was said:

"The law regards the father, where, as in this case, the mother is not living, as the rightful custodian of his child as against the claims of all others. This right might, of course, be forfeited by conduct of the father showing him to be manifestly unfit to have the custody and care of his child. Courts, in the interest of minor children, may take them from their parents and place them elsewhere, even in the custody of strangers; but in the exercise of this extraordinary power the rights of the parent must be recognized and protected." (p. 684.)

The case of In re Hollinger, 90 Kan. 77, 132 P. 1181, was one where a divorce was granted the parties and the custody of their only child given to the mother. Afterwards the mother died, and the father then sought to obtain the custody of his child who had been given by the mother to her foster parent. In the opinion it was remarked:

"The right of a parent to the custody of his child will often yield to considerations of its welfare. But special circumstances must exist in order to open the way to an inquiry in that regard. A court may not assume to disturb normal family relations merely upon a belief that it can thereby improve existing conditions. . . . The natural rights of the father were not completely annulled by the order in the divorce proceedings awarding the custody of the child to the mother; they were suspended for the time being, but they were revived in full force by the mother's death." (p. 78.)

While the prima facie right to the custody of the child is in the parent it is not an unconditional right. The well-being of the child is the prime consideration, and courts do not hesitate to take a child...