Jendell v. Dupree

• Citation: 195 P. 861,108 Kan. 460
• Decision Date: 12 February 1921
• Docket Number: 23,208
• Parties: MABEL JENDELL, Appellee, v. J. H. DUPREE and ELLA DUPREE, Appellants
• Court: United States State Supreme Court of Kansas

195 P. 861

108 Kan. 460

MABEL JENDELL, Appellee, v. J. H. DUPREE and ELLA DUPREE, Appellants

No. 23,208

Supreme Court of Kansas

February 12, 1921

Decided January, 1921.

Appeal from Ford district court; LITTLETON M. DAY, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. MINORS--Right of Parents to Have Custody of Their Children. Courts will not take from parents the custody of their children upon a charge of unfitness to maintain and care for them unless the charge is sustained by clear and satisfactory proof.

2. SAME--Mother Entitled to Custody of Her Children. The evidence examined and held to be sufficient to support the finding of the trial court that the petitioner, the mother of the children whose custody is involved, is not an unfit person to be entrusted with their custody and care.

Albert Watkins, and Arthur C. Scates, both of Dodge City, for the appellants.

L. A Madison, and Carl Van Riper, both of Dodge City, for the appellee.

OPINION

JOHNSTON, C. J.:

The custody of two little girls and the fitness of their mother, Mabel Jendell, to rear them are the questions involved in this litigation. The girls are respectively nine and seven years of age, and upon the testimony the district court held that the mother was not an unfit person to have the care of her children and awarded their custody to her. The respondents are the grandparents of the children in whose custody they had been placed for a time, and they appeal from the judgment.

It appears that about eleven years ago the petitioner was married to Lloyd Dupree, the son of the respondents, and to them the two children were born. They lived a somewhat transitory life for some time, moving from place to place the husband worked in a garage as foreman of a motor company, engaged in railroading, conducted a drug store, studied medicine, and located upon a land claim in Colorado and was seized with an illness which caused his death in October, 1918. After the children reached school age they were left with the respondents a part of the time and were sent to school, and during these periods the respondents appear to have furnished them clothing and schoolbooks. At one time when they were in school their father paid the respondents twelve dollars per month for their care during the school year, but at other times they appear to have been cared for by the respondents without compensation. After the death of Dupree the petitioner attended a school of pharmacy, graduated therefrom and is now a registered pharmacist. On May 13, 1919, she was married to Charles Jendell, when they set up a home in Wichita, and the children were kept with them for a time. In September of the following year after a disagreement with his wife, Jendell left home and there is testimony tending to show that it arose over the care of the children. She remarked that he was jealous because of her love for the children. About that time a sister of the petitioner apparently without petitioner's knowledge, wrote a letter to the respondents signing the petitioner's name, suggesting that they take the children, but stating that she, the petitioner, could not think of giving them away permanently. It was stated in substance that her heart was breaking at the thought of parting with them, but that under the circumstances she would let the respondents have the girls and would not take them away unless it was mutually agreed to be for the best. It was remarked that she was practically giving them to the respondents, but upon the basis that sometime when conditions were better they would see that it was right for her to have them again. Jendell, her husband, returned home within a few days after his departure and in a letter to one of the respondents said that the separation was due to a misunderstanding, that he "thought a lot of the little girls and will do anything for them I can. I love Mabel and will try to be happy." A few months later and when the petitioner and her husband had purchased a home, they asked respondents for the return of the children. Their refusal of the request is based on the fact that the children were given into their custody about eight months before, and further, that the petitioner was not a fit person to be entrusted with their custody. There was no adoption of the children by the respondents, no complete surrender of them by their mother, and it cannot be said that they were in the custody of the respondents long enough to create a filial affection or make the bond of attachment between them strong nor yet to weaken the love of the mother for them. She had parted with them when her circumstances were untoward and promptly reclaimed them when the circumstances changed, and she procured a home in which they could be reared. There being no irrevocable agreement of surrender and no enforceable legal right of the respondents as against the best interests of the children, the only question open for determination is the right and fitness of the petitioner to be entrusted with their care and custody. It may be premised that the father having died, the surviving parent is the natural guardian of her children and has the primary and predominant right to their custody. It is, of course, not an absolute right, and if she is an unfit person or the well-being of the children will be better subserved by entrusting...