McDonald v. Watkins

• Decision Date: 10 May 1921
• Docket Number: 5 Div. 354
• Citation: 89 So. 306,18 Ala.App. 131
• Parties: McDONALD et ux. v. WATKINS et al.
• Court: Alabama Court of Appeals

89 So. 306

18 Ala.App. 131

McDONALD et ux. v. WATKINS et al.

5 Div. 354

Court of Appeals of Alabama

May 10, 1921

Appeal from Probate Court, Chilton County; L.H. Reynolds, Judge.

Habeas Corpus for the custody of an infant child by the parents T.L. McDonald and Alice McDonald, against the maternal aunt and uncle, H.S. Watkins and Natie Watkins. Judgment awarding the child to the maternal aunt and uncle, and the parents appeal. Reversed and rendered.

Chas F. Douglas, of Anniston, and Grady Reynolds, of Clanton, for appellants.

A.C Smith, of Clanton, for appellees.

BRICKEN P.J.

Appellants are the father and mother of Lillian Alice McDonald, an infant, and H.S. Watkins and Natie Watkins (appellees) are the uncle and aunt of said infant; Mrs. Natie Watkins being the sister of Mrs. Alice McDonald, the mother of the infant whose custody is involved in this proceeding.

The evidence discloses that when the infant, Lillian Alice McDonald, was about eight months old, her mother, Mrs. McDonald, became very ill and it was necessary for her to spend several weeks in an infirmary. During the sickness of the mother, the child was taken by Mrs. Watkins to her home in Sylacauga. After the expiration of four weeks Mrs. Watkins carried the baby back to its home, but the mother was still unable to care for it, and she again carried it back home with her. Appellee Mrs. Watkins contends, and so testified, that she stated to appellants that "the only condition upon which she could carry the child back with her was that she was to keep it always." She also testified, however:

"I did not get Mrs. McDonald's consent to take her. I did not take it on Mr. McDonald's consent, but I took it because it needed somebody to take care of it. Mrs. McDonald did not agree for me to take the child the second time. Mrs. McDonald has been in my home one time since I had the child. She stayed two weeks and two days. She was there the last weeks in September of 1918. She told me at this time she would give me this baby, and that I could keep it all the time."

Mrs. Watkins also testified that--

"Mr. McDonald offered and tried to pay for the expenses of the child and had the bills of money in his hands, but I told him I did not want him to pay the expenses."

Appellants both testify that--

"At no time did they ever consent for Mrs. Watkins to keep the baby, and that she promised to bring her back when they wanted her to; and that two weeks prior to the trial of this matter I went and asked them to let me have my child, and they would not."

From these facts, and from the other facts contained in this record, we are constrained to hold that the court committed error in awarding the custody of the child to appellees, and that under the law she should have been awarded to her father and mother, the petitioners.

There are certain recognized principles which necessarily govern the discretion of the courts in cases of this character. These principles appear to be well stated in the case of Black et al. v. Montgomery, 17 Ala.App. 245, 84 So. 308, where this court said:

"Bearing in mind the oft-pronounced rule in cases of this character that the welfare of the child is the paramount consideration, yet we

...