Johnston v. Lowery

• Decision Date: 10 March 1930
• Docket Number: 203
• Citation: Johnston v. Lowery, 25 S.W.2d 436, 181 Ark. 284 (Ark. 1930)
• Parties: JOHNSTON v. LOWERY
• Court: Arkansas Supreme Court

25 S.W.2d 436

181 Ark. 284

JOHNSTON v. LOWERY

No. 203

Supreme Court of Arkansas

March 10, 1930

Certiorari to Sebastian Circuit Court, Fort Smith District J. Sam Wood, Judge; petition denied.

STATEMENT BY THE COURT.

This is a proceeding by certiorari to review and quash the action of the circuit judge, in awarding the custody of an eleven-year-old girl to respondent, her aunt, instead of to her father, petitioner. The petitioner applied to the circuit court of Sebastian County for a writ of habeas corpus, and on the 10th day of July, 1929, the judge, at chambers, heard the application for the writ and evidence introduced, and found that it was for the best interest of the child that her custody be awarded to the father, and that he be allowed to have her at his home from Monday until Saturday of each week and from Saturday until Monday each week said child shall be permitted to remain with the respondents at their home. The order was a temporary one, to remain in effect until the 29th day of July, 1929, or until further order of the court or judge. On September 11, 1929, the matter was again presented to the judge at chambers, and, by consent of the parties and upon petition and response, the evidence taken on the first hearing and new evidence, the court found that the home of the petitioner's parents, with whom he lived, is a fit home for the child as also the home of respondents is likewise a fit home for the child. That, the petitioner being all unmarried man, if the custody of the child was awarded to him, she would actually be in the care of the petitioner's mother, Mrs. G. L. Johnston, and, if awarded to the respondents, she would be in the actual care of her aunt, Mrs. Clara E. Lowery; that the child, being a girl of tender years, is "at that stage of life, where she is in need of the care and training of a mother, and that the respondent, Mrs. Clara E. Lowery, is best fitted under all the circumstances shown in the evidence in this case to have the custody, care and training of said child, Wanda Lee Johnston; * * * who is now eleven years of age; that she has enjoyed particular care and attention and that she has advanced in school to the junior high school, and that she has emphatically expressed her desire to live with her aunt Mrs. Clara E. Lowery"; found that Mrs. Lowery, from experience and acquaintance with the child from early infancy, close contact with her, blood relationship and affection for the child, and her peculiar adaptation to supply the position of mother for her, is peculiarly fitted for the custody, care and training of the child, and that it is clearly for the best interests of the child that she be awarded to her aunt, Mrs. Clara E. Lowery. The court adjudged the custody of the child to her aunt, Mrs. Lowery, "with the right to the petitioner of visitation with said child at any and all reasonable times, and to take said child to his home under reasonable circumstances and at reasonable times," and retained jurisdiction of the case until further orders in relation thereto.

Appellant petitioner, was married to Miss Pearl Bailey, sister of Mrs. Clara Lowery, respondent, and the mother of Wanda Lee, on August 28, 1917, and they lived together until May, 1924, when they voluntarily separated. She left the home of appellant and took the child with her. There was no divorce sought or granted, and they lived apart until the wife's death on the 27th day of April, 1929. The petitioner permitted the wife to have the custody of the child from the time of their separation until her death, and upon agreement he contributed to the support of the child regularly the specified amounts. He visited the child during the period when allowed and was devoted to her. At the wife's death she left a will undertaking to bequeath the custody of the child to her sister, Mrs. Lowery, and constituting her guardian. She left an estate of about $ 8,000 bequeathed to her sister, Mrs. Lowery, in trust for the child. After the mother's death her sister, respondent, kept Wanda Lee at her home. Petitioner desired the custody of his child to educate her in his own way, and, upon refusal of the aunt to...