Norval v. Zinsmaster

• Decision Date: 08 December 1898
• Citation: 77 N.W. 373,57 Neb. 158
• Parties: NORVAL v. ZINSMASTER ET AL.
• Court: Nebraska Supreme Court

57 Neb. 158

77 N.W. 373

NORVAL

v.ZINSMASTER ET AL.

Supreme Court of Nebraska.

Dec. 8, 1898.

Syllabus by the Court.

1. The statute and the demands of nature commit the custody of young children to their parents, rather than to strangers; and the court may not deprive the parent of such custody, unless it be shown that such parent is unfit to perform the duties imposed by the relation, or has forfeited the right.

2. The right of a parent to the custody of a child is not lost beyond recall by an act of relinquishment performed under circumstances of temporary caprice or discouragement.

3. When a decree of divorce has settled the custody of children in one of the parents, the court should not, in habeas corpus proceedings, in effect give them into the custody of the other, by committing them to the care of strangers, with whom that other makes his home.

Error to district court, Johnson county; Stull, Judge.

Application of Annie J. Norval for a writ of habeas corpus against Jacob Zinsmaster and others. From a judgment refusing the writ, petitioner brings error. Reversed.W. W. Giffen and W. H. Jennings, for plaintiff in error.

Tracy & Wild, for defendants in error.

IRVINE, C.

Annie J. Norval sued out a writ of habeas corpus against Jacob Zinsmaster, alleging the unlawful restraint by him of the applicant's two minor children. The district court, after a trial, awarded the custody of the children to the respondent, their paternal grandfather. From this order the applicant prosecutes error. The assignments of error reduce themselves to a question of the sufficiency of the evidence.

There is little real controversy as to the facts. The children are two girls, aged, respectively, eight and five, the offspring of a marriage between the applicant and George Zinsmaster, son of the respondent. In February, 1897, the applicant was awarded a decree of divorce on the grounds of drunkenness and extreme cruelty, and given the custody of the children. A little more than six months thereafter the applicant intermarried with Walter Norval. The former husband was opposed to this step, and filed an application in the divorce case for a modification of the decree so as to award him the custody of the children. This application does not seem to have been brought to hearing, but, apparently influenced thereby, Mrs. Norval wrote to a son-in-law of respondent, suggesting that the latter take the children. The letter not receiving an immediate response, she addressed the respondent directly as follows: “I thought it best that I should write to you about the girls. We have gotten word that George [the father] is working in an underhanded way to get them, and, rather than have any fuss and go to law about them, I will be willing for them to have their home with you. He can provide for them as much as he likes, but never have control over them to take them away in some other home; and that they can come and see me in vacation; providing they will stay there contented and happy. Now, let me know right away if this is satisfactory, and I will bring them down. They have a good home here, and will always have; but, to save trouble, I would rather let them go there.” The defendant in error, a German, who could not write English, directed his adult maiden daughter to write Mrs. Norval that he would take the children, if she would relinquish all claim upon them. The daughter wrote Mrs. Norval to bring the children to Cook, which seems to be the nearest railway station, but omitted to state the condition. The girls were sent to Cook about October 17, 1897, and were there met by their father, who took them to the home of the elder Zinsmaster. This proceeding was begun February 23, 1898.

No serious attempt is made to prove that either claimant is an unfit person to have the custody of the children. All the proof tends to show that the mother and the grandparents are estimable persons, exhibiting a deep affection for the children, and willing to provide for them to the extent of their respective means. Mrs. Norval resides with her husband in a small house at Avoca, Cass county. Norval is a section hand on a railroad, and derives his income chiefly from his wages as such. The grandparents own a farm of 240 acres near Tecumseh, and reside thereon. At each point good school facilities are convenient. The testimony of strangers as to the situation in either household is enlightened by that of the two little girls themselves, the innocent subject-matter of the controversy. Each testifies, with apparent candor and freedom, and with manifest intelligence, that she has received uniformly kind treatment in each place, and that...