Kurtz v. Christensen

• Decision Date: 17 August 1922
• Docket Number: 3722
• Citation: 209 P. 340,61 Utah 1
• Court: Utah Supreme Court
• Parties: KURTZ et ux. v. CHRISTENSEN et ux

209 P. 340

61 Utah 1

KURTZ et ux. v. CHRISTENSEN et ux

No. 3722

Supreme Court of Utah

August 17, 1922

Rehearing denied October 4, 1922.

Appeal from District Court, Third District, Salt Lake County Ephraim Hanson, Judge.

Habeas corpus by John P. Kurtz and wife against Otto W. Christensen and wife. From a judgment for defendants, plaintiffs appeal.

AFFIRMED.

Ray Van Cott, of Salt Lake City, for appellants.

John F Bowman, of Salt Lake City, for respondents.

CORFMAN, C. J. GIDEON, THURMAN, and FRICK, JJ., concur. WEBER, J., dissents.

OPINION

CORFMAN, C. J.

The plaintiffs, on February 15, 1921, filed in the district court of Salt Lake county a petition for a writ of habeas corpus to issue against the defendants, requiring them to produce before that court an infant child, alleged to have been wrongfully and unlawfully taken from the custody and control of its natural mother, the plaintiff Dorothy A. Kurtz. A writ issued, and in due time a return was made, whereupon the district court, on May 21, 1921, after hearing the evidence, ordered that the defendants be discharged of the writ, and that the child be remanded to the care and custody of the defendants.

The plaintiffs appeal. As grounds for a reversal they allege that the trial court's findings are not supported by the evidence, that error was committed in the admission of certain documentary evidence, and that the decree and judgment are against law.

The findings of the trial court are especially assailed, and, for the reason that they substantially, if not in detail, set forth the character and relationship of the respective parties and the facts and circumstances out of which this controversy arose, we here set them forth in full.

"(1) That the plaintiffs and the defendants are residents of Salt Lake City, Salt Lake County, state of Utah, and have been such for several years prior to and immediately next preceding the commencement of this action; that the defendants, Otto W. Christensen and Anna B. Christensen, are husband and wife, and have been such since the 6th day of August, 1907, upon which date they intermarried; that the said Otto W. Christensen was born at Draper, Salt Lake county, state of Utah, and is now 35 years of age, and that the said Anna B. Christensen was born at Gunnison, Sanpete county, Utah, and now is 32 years of age; that Otto W. Christensen and Anna B. Christensen have had no children born to them.

"(2) That the plaintiffs became acquainted first in the latter part of 1915, soon after which an illicit sexual relationship commenced and continued until the latter part of 1917, and that about the 1st of September, 1917, a child was conceived, and about two months later the said J. P. Kurtz, at which time he knew that said child had been conceived, entered the military service of the United States and went to France, from whence he returned to Salt Lake City, Utah, on June 13, 1919, and that he and Dorothy Fox, the other plaintiff in the above-entitled cause, intermarried on July 3, 1920, and are now husband and wife.

"(3) That a female child was born out of wedlock to the plaintiffs on the 5th day of June, 1918, at St. Marks Hospital, Salt Lake City, Utah; that the said Dorothy A. Kurtz, then known as Dorothy Fox or Dorothy Lloyd, was 24 years of age, and was then, and for about 3 years prior thereto had been, and ever since the birth of said child has been, residing in Salt Lake City, state of Utah; that her mother died when she was about 5 years old, shortly after which she left the place of her birth, Avoca, N.Y., and went to Rochester, N.Y., where she resided with her sister until she came West, in about 1915; that she worked as a housemaid and in restaurants as a waitress from the time she came West until her marriage to the plaintiff, John P. Kurtz.

"(4) That before said female child was born to the plaintiff Dorothy Fox, she decided that she would give it away, and requested her attending physician, Dr. Warren Benjamin, to procure or find suitable parents for the child, who would have it adopted; that this decision on the part of the mother continued and persisted after efforts had been made by various parties to dissuade her from giving the child away; that said attending physician, Dr. Benjamin, in accordance with the wish of said plaintiff, Dorothy Fox, communicated said wish to the defendants Otto W. Christensen and Anna B. Christensen, his wife, who were anxious to get a baby to adopt; that on the morning of the birth of said child, the defendant Anna B. Christensen, upon receiving notice from Dr. Benjamin, called at said St. Marks Hospital and received said child and that the said Otto W. Christensen and Anna B. Christensen, his wife, have had said child ever since; that they have nursed it though two very serious cases of pneumonia, a case of influenza, and other serious sickness with the utmost care and tenderness, and that said child has become very deeply attached to said defendants, and said defendants have formed a deep love and attachment for said child, and are educating it in the finest Christian virtues and practices, in a fine Christian home and under splendid environment; that said child knows no parents but the defendants; that the defendants are fit and proper persons to have said child, and are well able, financially and otherwise, to support and educate said child.

"(5) That the mother of said child was in good health at the time of the birth of said child, and during her pregnancy, and was in possession of all of her faculties, and knew and well understood what she was doing when arranging for the giving of said child away for adoption, and that neither she nor the other plaintiff, her husband, have made any effort to obtain said child since its birth until about the middle of January, 1921, a few days preceding the commencement of the above-entitled action, and that they have contributed nothing to or towards the support of said child during any of said time, and if it had been their desire to locate the said child during any of the said time it would have been an easy matter for them to have done so.

"(6) That said plaintiffs have willfully deserted and abandoned said child ever since its birth, and that said child has been solely supported and cared for by and in the custody of the said defendants during all of the said time.

"(7) That the welfare of said child will be best promoted and it is for the best interests of said child that it be remanded to and left in the custody and care of said defendants.

"(8) That except as hereinbefore set forth the petition and reply of plaintiffs are untrue; that all of the allegations of defendants' answer and reply herein, except as hereinbefore expressly set forth, are true.

"(9) That the legality of the restraint of said child has not already been adjudicated upon prior proceedings of the same character as the above, and that no application for a writ of habeas corpus has been before made to, or refused by, any court or judge within the state of Utah or elsewhere, affecting the liberty, custody, or control of said child.

"(10) That on the 29th day of July, 1919, said child was legally adopted by the defendants Otto W. Christensen and Anna B. Christensen, his wife, by the name of Catherine Marie Christensen, by an order of the Third judicial district court of Salt Lake City, Salt Lake county, state of Utah, made and entered on the 29th day of July, 1919."

We have read the somewhat voluminous transcript of the evidence in this case with more than ordinary care, and, after doing so, we conclude that the case was tried upon the theory that the best interest of the child should be controlling, and have no hesitancy in saying that the trial court's findings in that regard, in every instance, are supported by substantial, if not by the overwhelming weight of, evidence. Legal controversies in which the right to the care and custody of a little child are involved seldom fail to engender intense feelings on the part of the participants, more especially where there are foster or adoptive parents on the one side and the natural parents on the other. This case in that regard affords no exception. In these cases the duty of the courts to decide fairly and impartially the paramount question -- the best interests of the child -- is always attended with grave responsibility, and oftentimes is a very difficult matter to determine. After reviewing the record in this case we are satisfied that any extended discussion of the evidence on the part of this court would subserve no good purpose whatsoever. The principles of law controlling are generally understood. The difficulty arises in their application to the facts and circumstances of a given case. Humanity is not the subject of barter and sale. While the courts at times discuss and give some consideration to what is frequently referred to as the equities of the contending parties, nevertheless, in the last analysis, the best interest of the child is always the prime factor in the case, and of necessity overshadows all others.

In this case we are constantly reminded, in the brief and argument of plaintiffs' counsel, that by reason of the fact that the plaintiffs are natural parents the law favors them. It is also contended in plaintiffs' behalf that their social station and their financial ability...