People ex rel. Broxholm v. Parks

• Decision Date: 01 June 1914
• Docket Number: 8163.
• Court: Colorado Supreme Court
• Parties: PEOPLE ex rel. BROXHOLM v. PARKS et al.

141 P. 994

57 Colo. 458

PEOPLE ex rel. BROXHOLM v. PARKS et al.

No. 8163.

Supreme Court of Colorado

June 1, 1914

Rehearing Denied July 8, 1914.

Error to District Court, Mesa County; Chas. Cavender, Judge.

Habeas corpus by the People, on the relation of Alice Pauline Broxholm, against Rose Parks and another for the custody of a child. There was a judgment denying relief, and relator brings error. Affirmed.

The subject-matter of controversy is the custody of a little girl, Winifred, now about seven years of age. The mother instituted habeas corpus proceedings below against Mr. and Mrs. Parks to secure the custody of the child, and, from a judgment adverse to her, has brought the case here for review on error.

Winifred was born out of lawful wedlock May 7, 1907, in London England. The mother not being able to care for her gave her to a Mrs. Pearse when she was eight months old. This arrangement was effected through a solicitor representing the mother, and was evidenced by an indenture, by the terms of which Mrs. Pearse adopted the child, and agreed to maintain educate, and clothe the infant in all respects as if the infant were her natural child, and the mother covenanted that she would not at any time thereafter, in any way, directly or indirectly, seek or claim to recover possession or control of her child, and would not interfere with the adopting party's sole and absolute guardianship and control of the infant. The husband of Mrs. Pearse was a wealthy man and had a fine home in the vicinity of London. Mrs. Pearse took the babe to Paris and returned to England a few weeks later. She was in ill health, and traveled extensively, taking the baby and a nurse with her. For a time in 1908 they were in Colorado. In February, 1909, Mrs. Pearse returned to England with the child. Mrs. Parks, then Rose McCary, the sister of Mrs. Pearse, and who lived at Grand Junction, visited Mrs Pearse in England in August of that year. In November following they returned to Grand Junction with the child, and took up their residence in a house belonging to Miss McCary where Mrs. Pearse died January 1, 1911. During this period Mrs. Pearse was very ill most of the time, and Miss McCary had entire charge of the child. There is some conflict in the testimony on that subject, but the trial court found as we have stated, and we adopt that finding.

Miss McCary was married to Mr. Parks in October, 1910. Mrs. Pearse left a will in which she expressed a desire that Mrs Wadsworth, another sister, also residing at Grand Junction, should have the care and custody of the child; but, as she was not able to assume this responsibility, the child remained with Mrs. Parks. Mr. and Mrs. Parks stand well, having excellent reputations in every respect. Mr. Parks is a substantial citizen, in comfortable circumstances financially. Winifred is well cared for by the respondents, and it is their intention to give her such education and advantages as will render her happy, and as they would bestow upon the little girl if she were their own. They have no children, and have reached that age when it is not probable they will have any. Mr. Parks is in the cattle business, resides on hir ranch in the summer, where he has a comfortable house well furnished, and lives in Grand Junction during the winter months. There is not a word of testimony that respondents are not fit persons to have the custody of the little girl. On the contrary, the testimony establishes that they are. Several other members of Mrs. Parks' family reside in Grand Junction or that vicinity and are excellent people.

Shortly after the death of Mrs. Pearse, Mr. Pearse wanted to take the little girl back to England and demanded her custody. The respondents refused to give her up, and later endeavored to have the mother give her to them, which she refused. Mr. Pearse returned to England, called on Mrs. Broxholm, informed her of the situation, and secured from her a document by which she intrusted the custody of the child to Mr. Pearse on terms similar to those in the document given Mrs. Pearse. Mr. Pearse returned to Grand Junction and instituted proceedings in the district court of Mesa county to obtain the custody of the child, which were not successful.

Some time before the death of Mrs. Pearse, the mother married Mr Broxholm, a London solicitor, who has a comfortable home and is prosperous. Two children were born of this marriage. There...