Peese v. Gellerman

• Decision Date: 15 April 1908
• Citation: 110 S.W. 196
• Court: Texas Court of Appeals
• Parties: PEESE v. GELLERMAN et al.<SMALL><SUP>*</SUP></SMALL>

110 S.W. 196

PEESE v. GELLERMAN et al.^*

Court of Civil Appeals of Texas.

April 15, 1908.

Rehearing Denied May 13, 1908.

Appeal from District Court, Gillespie County; Clarence Martin, Judge.

Action by Heinrich Peese against Antonia Gellerman and another. From judgment for defendants, plaintiff appeals. Affirmed.

Moursund & Moursund, for appellant.

FLY, J.

This is a suit for the custody of a child, instituted by appellant, the father of the child, against appellees. A trial was had without a jury, and the custody of the child was given to appellees, the right to visit her being accorded appellant.

Elise Peese, the child in controversy, is the daughter of appellant, and is about eight years of age. Her mother died in a few minutes after her birth, and the child was placed in the hands of her aunt, Antonia Gellerman, and her husband, August Gellerman. They have since that time treated her as one of their children, and a strong mutual attachment exists between them. Appellees are honest, upright, and industrious people, living on a farm which they own. They have supported and cared for the child all its life, and are in a position to support, maintain, and educate her. Appellant had done very little towards the support of the child. There was evidence tending to show that the child was given by appellant to her aunt, Mrs. Antonia Gellerman, and he laid no claim to her, and did not desire her custody until after he had married again. His present wife is about 20 years of age, and has an illegitimate child two or three years old. She lived in the house with appellant and kept house for him for several months prior to their marriage. Several witnesses swore to her bad reputation, and stated that it was in connection with the birth of her child. One witness stated that he had heard talk of her bad conduct since that time.

It was alleged in the petition that a gift of the child was made by her father to her aunt, and the subject of the first assignment of error is the overruling of an exception to that allegation. The proposition is that the parent has no property interest in his child which is subject to be given away, and that he cannot relieve himself of his parental obligations to the child. While the proposition may be a correct one, and while standing alone an attempted gift of a child would be invalid, still the fact of the gift having been made would place the parent in the attitude of invoking the powers of a court of equity in seeking to regain possession of the child. Such being the case, the matter of the gift of the child was properly alleged and properly considered with the other facts in arriving at a conclusion as to where the custody of the child should be placed. Legate v. Legate, 87 Tex. 248, 28 S. W. 281. The force of the opinion cited is parried in a later case by the Supreme Court (State v. Deaton, 93 Tex. 243, 54 S. W. 901), but the allegation can be justified by the language of the last decision. The court said: "When the parent has parted with the possession and control of his or her child and seeks to regain that possession through the courts, it becomes the duty of the court in a proper case to protect the child against the evil results that may flow to it from an improper direction through incompetent or disqualified parents." If the transfer of the custody of the child should be considered in trying the case, it cannot be improper to allege it. If a man has voluntarily surrendered the control of his child for the first seven or eight years of its life and permitted some one else to feed, clothe, and care for it, there is not much room for any sentimental dissertation on the subject of a court sundering the ties existing between the father and child. It is unfortunately the case that these ties are sometimes forgotten and disregarded until the child has reached an age when it may be useful to the parent, and then they are invoked. Such resurrected affection may well be viewed with suspicion, and the parent should be required to show that the interest of the child will be subserved by having its custody returned. If the doctrine of the Missouri case, cited with approval in the case of State v. Deaton, to the effect that when a father sues for the custody of a child no burden would rest upon him, except to prove the relationship, be the true one, still, when it appears that he has voluntarily parted with the custody of his child, contributed little or nothing to its support, and allowed some one else to do what he should have done, it seems that any presumption that might arise as to his peculiar fitness to rear the child would be destroyed, and that he would then be required to establish his superior fitness before he could be awarded its custody. There is no basis for a presumption that the promptings of parental affection will cause a father to tenderly care for his child in the future, when he has failed to so act in the past.

It was alleged in the petition that the wife of appellant was not a woman of good reputation, and that, although she was not married prior to her marriage with appellant, she had given birth to a child, and that she was not a suitable person to care for and advise a girl. We are of opinion that the court did not err in refusing to strike out the allegation. The allegations were pertinent to the question of the interest of the child being subserved by giving her into the custody of her father who had presiding over his household a woman who had lived the life alleged. It may be that the woman had reformed, but the fact remained for consideration that she had made the most grievous error that a woman can make, and that the offspring of that fall from decency and virtue was an inmate of the household into which this young girl was to be transferred. She would be under the tutelage and direction of a woman who had failed to direct her own footsteps in the paths of pure womanhood, and would be thrown into the most intimate association with the child of the weakness and vice of the woman to whom she would be compelled to look for advice and counsel. The facts alleged were proper to be considered in arriving at a correct conclusion as to the custody of the child.

The assignment of error questions the action of the court on an exception to the alternative plea for compensation for caring for the child in case her custody was awarded to appellant. In view of the fact that the custody of the child was awarded to appellees and no judgment for any sum of money was rendered for them, the question as to the cross-action becomes a mere abstraction, and we suppose would not have been insisted upon except on the hypothesis that the case would be remanded for another trial.

The fourth assignment of error questions the sufficiency of the evidence to sustain the judgment of the court, and is answered in the negative by our conclusions of fact.

The judgment is affirmed.

* Writ of error denied by Supreme Court June 10, 1908.

NEILL, J. (dissenting).

I believe that under the law and facts in this case the appellant has the right to take his little daughter home and treat her as a member of his family. I think he has this right, because the God of nature has given it to enable him to discharge the duty he owes as a father to his child. Where a right emanates from such a source, the one to whom it is given, if fit to perform the duty it imposes, cannot be rightfully deprived of it by the courts of any country. The law itself recognizes the right primarily of the parent to the custody of his minor child, and but re-echoes the voice of nature in the duty it imposes. The mother of the child being dead, the presumption is that its father has the right to its custody; and it devolves upon the party claiming adversely to it to show that it has been forfeited by him, that is, it must be proved the father is not a fit person to rear and nurture his own child. This must be shown by facts, and not by ethereal sentiment. State v. Deaton, 93 Tex. 247, 54 S. W. 901. Even if it were proved, which was not, that appellant gave the child to appellees, it would amount to nothing, for the custody of a child is not the subject of gift or barter. A father cannot by mere gift of his child release himself from his obligation to support, nurture, and educate it, or deprive himself of his right to its custody which would prevent him from discharging those duties to his offspring that God has commanded him to perform, and which the law cannot rightfully compel him to disobey. Washaw v. Gimble, 50 Ark. 351, 7 S. W. 389; Chapsky v. Wood, 26 Kan. 650, 40 Am. Rep. 321; In re Scarritt, 76 Mo. 565, 43 Am. Rep. 768; State v. Baldwin, 5 N. J. Eq. 454, 45 Am. Dec. 397; Walrond v. Walrond, 1 Johns. 27; People v. Chegaray, 18 Wend. (N. Y.) 637; People v. Mercein, 8 Paige (N. Y.) 47; Id., 3 Hill (N. Y.) 399, 38 Am. Dec. 644; Mercein v. People, 25 Wend. (N. Y.) 64, 35 Am. Dec. 653; Brooke v. Logan, 112 Ind. 183, 13 N. E 669, 2 Am. St. Rep. 177; Jones v. Darnall, 103 Ind. 569, 2 N. E. 229, 53 Am. Rep. 545; ...