Mullins v. Becker

• Decision Date: 14 July 1931
• Citation: 113 Conn. 526,155 A. 705
• Court: Connecticut Supreme Court
• Parties: MULLINS v. BECKER ET AL.

155 A. 705

113 Conn. 526

MULLINS v. BECKER ET AL.

Supreme Court of Errors of Connecticut.

July 14, 1931

Appeal from Superior Court, Fairfield County; Edward M. Yeomans Judge.

Habeas corpus by Mary Mullins against Peter Becker and others, to obtain the custody of her daughter, Florence E. Becker. Judgment for the defendants, from which the plaintiff appeals.

No error.

Reviewing court must assume that attitude of parties concerned, at trial, in judgment of trial court, supported trial court's conclusion that it was to best interest of minor child to remain where she was.

Harry B. Dinerstein, Joseph Shapiro, Harry Allison Goldstein, and Charles S. Brody, all of Bridgeport, for appellant.

Hugh J. Lavery, of Bridgeport, for appellees.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY JJ.

HAINES, J.

The daughter, Florence E. Becker, whose custody is sought by the plaintiff in this action, was born April 17, 1921, at which time the plaintiff and the defendant Peter Becker were living together at Bridgeport as husband and wife, and they continued their residence in Bridgeport until January, 1923. On the 17th of that month, the plaintiff informed her husband that she desired to spend a few weeks with her mother in New Jersey. He agreed, and she went to her mother's home taking the child with her. Up to April 30, 1923, she wrote letters to her husband that she would return, but did not and he made several visits there, and on the last-named date remained over night at the home of the plaintiff's mother, in an effort to get the plaintiff to return. She refused, but allowed the father to take the child back to Bridgeport. At that time she was slightly over two years old, and the father went with her to the home of his mother, one of the defendants, with whom he was then living. The child has resided there continuously since that time, supported by the father and cared for and looked after by the grandmother. From the time she was of school age, the child has attended school in Bridgeport, and, at the time this action was heard, was in the fourth grade. She has also attended church and Sunday School for some time. The grandmother is honored and respected by her neighbors and friends, maintains a good home, and is of good moral character. The father, a man of good moral character, lived with his mother until 1929, when he married again and is now employed and lives in Waterbury, but continues to support the child, and they visit frequently. The plaintiff and her husband were divorced in January, 1927, but no order was made regarding the custody of the child, who was then with the father and her paternal grandmother at Bridgeport. The plaintiff was married to her present husband in 1927, and her household in New Jersey now consists of herself, her husband, and her mother. These facts from the finding are not contested, save as to the letters and requests to return, and the permission of the plaintiff to the father to take the child back to Bridgeport with him. As to these facts, there was some conflict of testimony, but ample evidence which the trial court accepted as true to support them, and the requested corrections of the finding in these respects cannot be granted.

The plaintiff contests the finding of the trial court that from May 1, 1923, to March 30, 1930, she made no requests to see the child and contributed nothing to her support; that she has not tried to maintain any contact with her, and has exhibited no interest in her welfare, and that the child is now unacquainted with the plaintiff or any of the plaintiff's family. The evidence is such that we cannot say these facts are not properly supported thereby, and we do not disturb that portion of the finding. None of the facts which the appellant seeks to add to the finding are of sufficient materiality to the real issue in the case to justify the addition. On March 30, 1930, when the plaintiff did call to see the child, the latter did not know her. The trial court concluded that " it is for the best interest of the child to remain where she is." This is the controlling issue of fact in cases involving the custody of minor children. In reaching its conclusion, we cannot overlook the fact that the trial court, with the opportunity to observe all the parties and their demeanor, was in a peculiarly favorable position to judge as to what was best for the child. There is nothing in the subordinate facts which does not accord with the conclusion reached, and we must assume, in addition, that the attitude of the parties concerned, at the trial, also in the judgment of the court, supported this conclusion. Without recourse to the testimony of the child herself in the record, we could reasonably conclude from the finding that her own wish conformed to this view of the court that she should remain where she is.

Under these circumstances, the decision of this question, of what is best for the child, is decisive of the case, since the law of the state, conforming to that of others, holds that the legal custody of the child should generally be determined by that consideration. Perhaps...