Kennison v. Chokie, 2149

• Decision Date: 12 March 1940
• Docket Number: 2149
• Citation: 55 Wyo. 421,100 P.2d 97
• Parties: KENNISON v. CHOKIE
• Court: Wyoming Supreme Court

100 P.2d 97

55 Wyo. 421

KENNISON v. CHOKIE

No. 2149

Supreme Court of Wyoming

March 12, 1940

APPEAL from the District Court, Sweetwater County; H. R. CHRISTMAS Judge.

Habeas corpus proceeding by Mrs. Ruby Kennison against Mrs. Caroline Chokie to recover the custody of Kenneth LaMar Kennison. From a judgment awarding custody and control of the child to the defendant, plaintiff appeals.

Affirmed.

For the appellant, there was a brief and oral argument by E. V Magagna of Rock Springs, Wyoming, and F. Henri Henriod of Salt Lake City, Utah.

As a matter of right, the mother is entitled to the custody of her minor child. The burden of proof to show that the mother is an unfit or improper person to have the custody of her child is upon defendant in this case. It is unnecessary for the mother to show that she is able to and is a fit and proper person to take care of her minor child. Schiller v Douglas, 285 P. 1021; Norval v. Zinsmaster (Nebr.) 77 N.W. 373; Terry v. Johnson, 103 N.W. 319; Focks v. Munger, 149 P. 300; Winter v. Winter, 166 N.W. 274; Pinney v. Sulzen, 91 Kan. 407. The foregoing is a cross section of the authorities on the subject and we believe they are applicable to the evidence in the case at bar. Respondent was hired to care for the minor child in controversy and is not entitled to question the right of the person who hired her to the custody of her child. The court erred in overruling objections to evidence in regard to the years 1936 and 1937, but even with that testimony admitted, defendant failed to prove that plaintiff was unfit to have the custody of her minor child. The judgment of the lower court should be reversed upon the facts and law applicable to this case.

For the respondent, there was a brief and oral argument by W. A. Muir of Rock Springs.

The evidence shows that the child had never been with the plaintiff, and that plaintiff was unable to care for the child because of her immoral vocation. The evidence also showed that defendant was a fit and proper person to have the care and custody of the minor child, Kenneth LaMar Kennison. The evidence shows that appellant violated Section 20-103, R. S. relating to child abandonment. The welfare of the child was the paramount question in the case. Jones v. Bowman, 13 Wyo. 79; Tytler v. Tytler, 15 Wyo. 319; Harris v. Muir, 24 Wyo. 213; Madson v. Humane Society, 25 Wyo. 338; Stirrett v. Stirrett, 35 Wyo. 206; Curran v. Curran, 51 Wyo. 217. Counsel for appellant suggests that the burden of proof is on defendant to show that plaintiff was a fit and proper person to have the custody of the child, at the time of the hearing; that evidence of her character in 1936 and 1937 is not proof of her character in 1939. The trial court had a right to invoke the rule set forth in Jones on Evidence, 4th Ed. Vol. 1, p. 101, § 58, in view of the fact that appellant did not attempt to explain her conduct during the years 1937, 1938 and 1939. Things once proved to have existed in a particular state are presumed to have continued until the contrary is established by evidence. State of Iowa v. Fray (Iowa) 241 N.W. 663; Fish v. Fish (Me.) 138 A. 477; McGraw v. McGraw (Mass.) 50 N.E. 526; Appeal of Reading Fire Insurance and Trust Company, 57 Amer. Rep. 448; Hempstead v. Association (Kan.) 210 P. 492; 46 C. J. 1228, 1232, 1235, 1239, 1248.

E. V. Magagna in reply.

The case of Jones v. Bowman, 13 Wyo. 79, cited by respondent, involved a minor orphan child. Tytler v. Tytler, 15 Wyo. 319 involved a controversy between a father and a mother. The case of Harris v. Muir, 24 Wyo. 213, cited by respondent, was a controversy between the father and maternal grandparents of the child. Madson v. Humane Society, 25 Wyo. 338 involved the fitness of the parties to a marriage. Stirrett v. Stirrett, 35 Wyo. 206 was a controversy as between the parents, as was Curran v. Curran, 51 Wyo. 217, also cited. The foregoing cases are not applicable to the facts in the case at bar. A careful examination of other authorities cited by respondent will show that they are inapplicable to the evidence in the present case. On the question of abandonment, we submit the following cases: In re Galleher (Cal.) 84 P. 352; Wood v. Shaw (Kan.) 139 P. 1165; In re Baldwin's Guardianship (Ore.) 278 P. 1078; In re Snowball's Estate, 104 P. 44. With respect to the degree of proof required to deprive a parent of the custody of his or her child, we cite Jendell v. Dupree (Kan.) 195 P. 861; Breckenridge v. Breckenridge (Okla.) 229 P. 724; Cooke v. Cooke, 248 P. 83; Haskell v. Haskell, 152 Mass. 16; In re Green, 221 P. 903. The divorce decree awarding the custody of the child to appellant by a Utah court should be given great weight. A decree granting custody must be recognized, unless conditions have so changed as to require its modification. In re Marshall (Calif.) 279 P. 834; Milner v. Gatlee (Ga.) 76 S.E. 860.

BLUME, Justice. RINER, Ch. J., and KIMBALL, J., concur.

OPINION

BLUME, Justice.

This is a proceeding in habeas corpus brought by plaintiff and appellant Mrs. Ruby Kennison against Caroline Chokie, to recover the custody of Kenneth LaMar Kennison, plaintiff's minor son. The defendant answered that the child was entrusted to her keeping by the plaintiff on or about December 1, 1936, and that the plaintiff is not a proper person to have the boy in her custody. The court found that the allegations of the answer are true, denied plaintiff's petition, and awarded custody and control of the minor child to the defendant. From that judgment the plaintiff has appealed.

It appears herein that the defendant is not a relative of the minor child, and it is the contention of plaintiff that she, the mother of the child, is presumed to be a proper person to have him in her custody, and that the contrary has not been shown herein. There is no doubt that "it is a presumption of law that the best interests and welfare of the child will be preserved by placing it in the custody of its natural parents." 46 C. J. 1251. And it has been held that the evidence must be clear and satisfactory to warrant an order or decree depriving a parent of the custody of a child on account of incompetency or unfitness. 46 C. J. 1253. However, the paramount question at all times, when the custody and control of a minor child is in dispute, is the welfare of such child. That has been declared to be the rule by this court a number of times. Jones v. Bowman, 13 Wyo. 79, 77 P. 439; Tytler v. Tytler, 15 Wyo. 319, 89 P. 1; Harris v Muir, 24 Wyo. 213, 157 P. 26; Madson v. Humane Society, 25 Wyo. 338, 169 P. 336; Stirrett v. Stirrett, 35 Wyo. 206, 248 P. 1; Curran v. Curran, 51 Wyo. 217, 65 P.2d 243. The evidence in this case shows that the child was born on March 12, 1932. The plaintiff in this case married one Francis Kennison. The latter brought an action for divorce against her in the State of Utah on the ground of desertion for a period of over one year. A decree was entered on September 20, 1935, granting the husband a divorce from the plaintiff on that ground. The decree awarded the care and custody of Kenneth LaMar Kennison to the plaintiff in this case. Subsequently, and some time during the year 1936, plaintiff came to Rock Springs, in this state, went under the name of Maxine Hunter, became an inmate of a house of ill repute, and was fined in the police court in that city a number of times on account of moral delinquency. She gave the custody of the child to the defendant in this case about December 1, 1936, asking the latter to keep and take care of the child, and give him a good home. She agreed to pay the defendant the sum of $ 20 a month for doing so. She thereafter left Rock Springs,...