Judd v. Van Horn
| Decision Date | 03 May 1954 |
| Citation | 81 S.E.2d 432,195 Va. 988 |
| Parties | RAYMOND SMITH JUDD v. LOUISE K. VAN HORN |
| Court | Virginia Supreme Court |
Kermit V. Rooke, Robert Lewis Young and Bremner & Young, for the appellant.
Thomas C. Gordon, Jr. and McGuire, Eggleston, Bocock & Woods, for the appellee.
In a divorce proceeding in the lower court under the style of Katharine Van Horn Judd versus Raymond Smith Judd, Mrs. Judd was, by decree dated April 26, 1950, granted a divorce and the custody of their infant son, Robert William Judd. On April 9, 1952, after the sudden death of Mrs. Judd, appellant, Raymond Smith Judd, filed a petition in the divorce proceeding praying that he be awarded the custody of his son who was then four years of age. Notice of the filing of the petition was duly served upon appellee, Louise K. Van Horn, the child's maternal grandmother, who, at the time, had temporary custody by virtue of an order entered on June 8, 1951, following the death of the mother on June 1, 1951.
The taking of depositions was concluded on July 19, 1952, and on January 29, 1953, the lower court notified counsel of its decision to deny the prayer of the petition, leaving in effect the order awarding temporary custody of the child to appellee. Upon learning of the indicated decision, on March 3, 1953, counsel for appellant filed a petition to dismiss on the ground that the court had no jurisdiction to determine the custody in the 'concluded divorce proceeding'. The issue thus presented was argued on April 2, 1953, and the court entered the decree overruling the motion to dismiss and awarded custody of the child to Mrs. Van Horn. From these rulings we granted an appeal.
The first assignment of error presents this question for decision: Where one of the parties to a divorce proceeding has died, may a controversy between the surviving parent and a third party over the custody of a child of the marriage be litigated in the divorce proceeding? We think it must be answered affirmatively.
Appellant challenged the jurisdiction of the court on the ground that the Act of the General Assembly, approved April 5, 1950, entitled 'An Act to Provide a State-Wide System of Juvenile and Domestic Relations Courts', etc., Acts of 1950, Chapter 383, page 665 (now § 16-172.1 ff., 1952 Cum. Supp., Code of 1950) provides in § 21 thereof (now § 16-172.23, 1952 Cum. Supp., Code of 1950), that the judge of the Juvenile Court within the boundaries of the county in which he sits shall have exclusive original jurisdiction over proceedings involving the custody of children. Section 24 of the Act above referred to (now § 16-172.26, 1952 Cum. Supp., Code of 1950) also contains inter alia, the following: '* * * (Provided) that when a court of record shall have taken jurisdiction thereof the Juvenile and Domestic Relations Court shall be divested of such jurisdiction. ' In conformity with this proviso, we held in Morris v. Henry, 193 Va. 631, 642, 70 S.E. (2d) 417, 423, that section 20-108, Virginia Code, 1950, and other sections cited, give courts of equity ample authority to deal with matters of custody and support if one or both of the parties to the divorce suit should die. See also Jarrett v. Jarrett, 415 Ill. 126, 112 N.E. (2d) 694. Therefore, this assignment is without merit.
We now consider the second assignment of error which is the decisive point in the case: Is the father of a child of tender years whose custody was awarded to the mother in a divorce suit entitled to the custody of his child upon the death of the mother unless it be affirmatively shown that he is morally unfit or financially incapable of providing a suitable home for the child?
Raymond Smith Judd and Katharine Van Horn were married in Sandston, Henrico County, Virginia, on June 1, 1946. At the time of the marriage the husband was employed in New York City at a salary of $3,500 per year. Their home was located in Nutley, New Jersey, where their son, Robert William Judd, was born on September 24, 1947. Soon thereafter differences arose between the parties, whereupon, on December 29, 1947, Mrs. Judd returned to the home of her parents in Virginia, taking the baby with her.
In January, 1950, Mrs. Judd filed her suit for divorce previously referred to, charging constructive desertion. On March 31, 1950, a settlement was consummated whereby appellant agreed to pay $30 per month for the support of his son, reserving the right to visit him. By decree entered on April 26, 1950, the court below granted the divorce and awarded the custody of the infant to the mother, the issue not being contested in the proceeding.
On June 1, 1951, appellant's divorced wife died suddenly. He immediately wired condolences to her parents and on June 8, 1951, wrote her mother, the appellee, Louise K. Van Horn, that in view of the tragically altered circumstances he would like to come to Sandston to discuss plans for his son's future. On June 12, 1951 Mrs. Van Horn replied by letter as follows:
This letter was appellant's first intimation that Mrs. Van Horn had taken steps to obtain custody of his son. The record discloses that Mrs. Van Horn employed an attorney on the day of her daughter's death for the purpose of obtaining custody of the child. The petition was filed on behalf of Mrs. Van Horn on June 8, 1951, without notice to appellant, and the order was entered on the same date awarding temporary custody to her. The validity of this order need not be considered, it being immaterial to the present controversy.
Pursuant to the appointment, appellant came to Sandston on June 17th and discussed with Mrs. Van Horn the matter of his son's custody. He expressed the desire to take the child to New Jersey as soon as he could establish a home for him. Mrs. Van Horn would not agree to appellant taking the child and he was forced to employ counsel in an effort to gain custody of his son, the proceeding being instituted as aforesaid by the filing of appellant's petition seeking relief.
There was no attempt on the part of appellant to show that Mrs. Van Horn was an unsuitable person to care for the child. Mrs. Van Horn and her husband were shown to be people of excellent character, owning their home and being in comfortable circumstances. They were shown to be presently well capable of caring for and supporting their grandson. It was established that Mrs. Van Horn was approximately sixty three years of age and that her husband was in his sixty seventh year; that he was employed by the Commonwealth of Virginia and would be retired when he became seventy years old.
Robert William Judd had lived in the Van Horn home with his mother and grandparents since the inception of the divorce suit. He had been under his mother's care until her death, at which time he was four years of age, and since Mrs. Judd's death he had been under the care of his maternal grandparents.
Admittedly, there was no blot placed upon the character of appellant in the uncontested divorce suit and no proof has been introduced in this proceeding to show that he is not a suitable person to have the care and custody of his son.
Dr. Sarah Jones, a longtime friend of the Van Horns, testified that she had attended the child occasionally when he needed medical care. Dr. Jones' testimony indicated that the child was a normal, healthy boy. Speaking of the attention given the child by the appellee, Dr. Jones said, 'I think Mrs. Van Horn does as good a job as any mother of a child five years of age * * *. ' She, however, expressed concern over the removal of the child from the home of its grandparents to the home of its father, '* * * even though as you say it be a loving home waiting for him, it would be a shock to the child to be disrupted from his normal every-day life, and I think it takes a great deal of intelligence and training for a home in which he would go to compensate for the love and affection that he has already known and seems to be his natural home.'
Ben V. Van Horn, husband of appellee, testified regarding appellant's character: ...
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