Jackson v. Jackson

• Decision Date: 06 March 1948
• Docket Number: 36964.
• Citation: 190 P.2d 426,164 Kan. 391
• Parties: JACKSON et al. v. JACKSON.
• Court: Kansas Supreme Court

190 P.2d 426

164 Kan. 391

JACKSON et al. v. JACKSON.

No. 36964.

Supreme Court of Kansas

March 6, 1948

Syllabus by the Court.

In a proceedings in habeas corpus for the custody of a minor boy the record is examined and it is held that the evidence would not sustain a conclusion that the minor's father is not a fit person to have custody of him so as to overcome the father's prima facie right.

Harry K. Allen and L. M. Ascough, both of Topeka, for petitioner.

Ed Rooney, of Topeka, and James S. Lester, of Oskaloosa (Jacob A. Dickinson and David Prager, both of Topeka, on the brief) for respondent.

SMITH, Justice.

This is an original proceeding in habeas corpus. The facts are about as follows:

Mrs McFall alleged that Larry Edgar Jackson was restrained of his liberty by the respondent, Edgar Jackson, and that she was entitled to his custody. She stated in her petition that Larry was born March 6, 1941, and that Edgar Jackson, who confined him at the time the petition was filed, was his father, and his mother, who died when Larry was five months old, was the sister of petitioner; that at the time of the death of Larry's mother respondent gave him into the care and custody of petitioner and relinquished all right to him that she had paid the hospital and doctor bills at the time of the confinement of Larry's mother and during the months following the birth and when his mother died paid all funeral expenses; that after Edgar Jackson, respondent, gave the child to the custody of petitioner he had never at any time assumed any responsibility in regard to his care and upbringing and never made any payment for his expenses; that on a certain day in April, 1947, respondent appeared at the home of petitioner and demanded custody of Larry and upon the refusal of petitioner to give his custody to respondent took him by force and brought him to the home of respondent in Jefferson county.

A writ was issued and the respondent thereafter made a return, in which he alleged that he had Larry under his custody and the authority for such detention was that Larry was born March 6, 1941; that his mother had died August 24, 1941; that respondent was the natural father and surviving parent of Larry; that respondent never at any time had relinquished the claim to him; that he had at various times contributed to his support; that he requested custody of Larry from petitioner and it had been refused; that on January 28, 1947, he went to the home of petitioner in Colorado and obtained custody of Larry and returned to his home near Valley Falls; that Larry remained at his home until about February 24, 1947, when the petitioner and her husband requested that they be permitted to take him to the home of his maternal grandparents for a visit; that this request was granted and her husband took the child to their home in Colorado without the authority of respondent; that when respondent learned that Larry had been returned to Colorado he requested by mail his return to Kansas; that this request was not complied with and on April 28, 1947, respondent went to the home of petitioner in Colorado and when he was refused Larry's custody took custody of him and returned him to his home near Valley Falls; that respondent was able to provide a comfortable home, the necessities of life, educational facilities, companionship of other children and a mother for Larry and he and his wife were proper persons to have his custody; that at the time respondent permitted petitioner to take his custody he did not have proper domestic facilities for caring for a child of tender age and it was proper for him to permit his wife's sister to have such custody until he could provide proper care for him. The respondent denied that he had a violent temper or that he ever struck or abused his first wife and denied he took Larry by force and violence from petitioner and also denied that he neglected him and alleged that he had a natural paternal affection for Larry and was entitled to his permanent custody. Respondent prayed for an order denying the petitioner and for an order awarding the custody of Larry to him.

We appointed a commissioner to take evidence and make findings of fact and conclusions of law. The commissioner made a report as follows:

'1. Nellie McAffee and Edgar Jackson, both residents of Jefferson County, Kansas, were married April 27, 1931.

'2. Larry Edgar Jackson, their first child, was born March 6, 1941. The birth was by a Caesarian operation and the mother never fully recovered.

'3. The mother, Nellie, died in Bethany Hospital, Kansas City, Kansas, August 24, 1941; however, before she died she requested that her baby, Larry Edgar, be raised by her sister, Mrs. Madge McFall. The father, Edgar Jackson, was present at the time and agreed to this arrangement.

'4. The father, Edgar Jackson, after the death of his wife, told Mrs. McFall she could have Larry Edgar and that he would not interfere and also told others it was a God's blessing that he had someone to raise the child.

'5. That at the time of the death of his wife, Edgar Jackson, was an employee of Fred McLeod and in debt $5,000.00.

'6. Mrs. Madge McFall, at the time of her sister's death, resided in Kansas City, Kansas. In 1943, she and her family moved to a ranch 4 or 5 miles from Woodrow, Colorado.

'7. Edgar married his present wife 4 years ago last October and has a stepson whose father is dead, age 9, and a baby girl born about 7 months ago.

'8. Edgar Jackson now owns 380 acres and a half interest in an additional 355 acres and owes $3,000.00. He is not worth in excess of $15,000.00.

'9. The home of Mrs. Madge McFall is a good Christian home and a proper place to raise children. She has given Larry Edgar the proper kind of training and attention during the time he was in her home.

'10. That the father, Edgar Jackson, has contributed very little toward the support of the child, Larry Edgar; however, the McFalls did not request any assistance from him nor did they want any.

'11. That Edgar Jackson has a nice home now and bears a good reputation in the neighborhood in which he resides.

'12. That no adoption proceedings have been instituted by the McFalls.

'13. That the father, Edgar Jackson, in January, 1947, brought the child Larry to Kansas for what Mr. McFall thought was a visit and on February 19, 1947, wrote to Mrs. McFall that he was going to keep the child.

'14. That the McFalls came to Kansas and on or about February 24, 1947, went to the Jackson home for lunch. In the afternoon on the pretext they were taking Larry to visit his grandmother, they took him away with them and took him back to their home in Colorado, without informing his father.

'15. That on the morning of April 28, 1947, Edgar Jackson and his brother arrived at the McFall ranch and forcibly took the child, Larry, and brought him back to the Jackson home in Jefferson County, Kansas. The child now is at the home of the father.

'Conclusions of Law.

'1. Edgar Jackson, the father of Larry Edgar Jackson and the natural guardian, has not surrendered his rights to the custody of said minor child in the manner provided by law and has not legally renounced his rights to the custody of such child.

'2. That the respondent, Edgar Jackson, has not forfeited his rights to the custody of said child because of his personal unfitness.

'3. That the respondent, Edgar Jackson, is financially able to support said minor child in a proper manner.

'4. Under the facts as found, the court has not discretion in the matter of decreeing that Edgar Jackson should have the custody of the said minor child.

'5. That the petition for a Writ of Habeas Corpus be denied.

'6. That the respondent, Edgar Jackson, have the custody of his minor son, Larry Edgar Jackson, and that Edgar Jackson be required to pay all costs herein.

Petitioner filed a motion to set aside these findings and conclusions of law because they were contrary to the evidence and the law. The petitioner points out here first that the findings of fact of the commissioner are advisory only. That it the correct rule. See State ex rel. v. Sage Stores Co., 157 Kan. 404, 141 P.2d 655. He then points out that the commissioner found the child Larry was in the legal care and custody of petitioner and that respondent forcibly took him and brought him back to Kansas. The record does not quite sustain that assertion. It is true the commissioner found that Larry's mother before she died requested that he be raised by her sister, the petitioner. The commissioner also found that respondent, the father, Edgar Jackson, was present at that time and agreed to this arrangement. The findings of the commissioner, however, as to what happened later do not quite bear out the assertion that at the time respondent took Larry into his possession he was lawfully in the custody of petitioner. The record is susceptible to the interpretation that the petitioner and her husband got Larry into their custody by a ruse and surreptitiously took him back to Colorado.

The petitioner argues, however, that by taking Larry into his possession forcibly the respondent did not acquire any right to his custody. To sustain this proposition she cites and relies on a case where we held that one whose cattle are in possession of another does not have the right to take them by force or violence or by a breach of the peace. There is a quotation from Blackstone to the same effect. Indeed counsel for petitioner argues had the attempt been made in Kansas respondent would have been guilty of kidnapping in the second degree, in violation of G. S. 1935, 21-450.

Counsel then refers to some evidence in the record to the effect that a year before the birth of Larry respondent had committed an assault upon Larry's mo...