Peters v. Campbell, 2869

• Citation: 80 Wyo. 492,345 P.2d 234
• Decision Date: 20 October 1959
• Docket Number: No. 2869,2869
• Parties: Joseph PETERS and Lila Peters, Appellants (Defendants below), v. James CAMPBELL, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 234

345 P.2d 234

80 Wyo. 492

Joseph PETERS and Lila Peters, Appellants (Defendants below), v. James CAMPBELL, Appellee (Plaintiff below).

No. 2869.

Supreme Court of Wyoming.

Oct. 20, 1959.

Robert S. Lowe, Rawlins, for appellant.

Brimmer & Brimmer, Clarence A. Brimmer, Rawlins, for appellee.

Before BLUME, C. J., and PARKER and HARNSBERGER, JJ.

Mr. Chief Justice BLUME delivered the opinion of the court.

On May 5, 1956, plaintiff, James Campbell, filed in the District Court of Carbon County, Wyoming, his petition for a writ of habeas corpus alleging that he is the father of an infant, Celeste Campbell, born to his wife on December 29, 1955, in Rapid City, South Dakota, and that the defendants, Joseph Peters and Lila Peters, unlawfully retained the possession of that child. On May 12, 1956, the court issued a writ of habeas corpus directing that the child be produced in court on May 25, 1956. On March 20, 1957, defendants filed their answer to the petition for a writ of habeas corpus, denying that the plaintiff was the father of the child in question and admitting that it is in their custody at Rawlins, Wyoming. They alleged that plaintiff and his wife abandoned the child and are not proper persons to have the care and custody of it; that defendants have paid out a considerable amount of money for the care and maintenance of the child; and that the writ of habeas corpus is sued out for the benefit of both plaintiff and his wife and that the latter, accordingly, should be made a party herein. Plaintiff, in his reply, denied all affirmative allegations.

In the meantime the defendants asked that plaintiff and his wife submit themselves to a blood test in order that their blood might be compared with the blood of the child Celeste. An order to that effect was made and the blood test was taken by Dr. Donald L. Becker of Casper. Wyoming, who also took a test of the blood of the child Celeste. The result of that test was, according to the testimony of Dr. Becker, that the plaintiff, James Campbell, was not excluded from being the father of the child Celeste.

The trial of this matter was had commencing on May 23, 1957. The trial court found that the plaintiff, James Campbell, was the father of the child, Celeste Campbell; that the plaintiff has never relinquished or abandoned the child and did not intend to abandon his parental duties; and that plaintiff and his wife, Bette, are fit and proper persons to have the care and custody of the child, and by an amendment of the judgment found that it is to the best interest of the child that plaintiff and his wife have such care and custody. The court accordingly directed that the minor child be immediately delivered to the custody and care of the plaintiff, James Campbell. From that judgment the defendants have appealed.

On March 27, 1958, the court made an order staying execution of its judgment during the pendency of the proceedings in this court.

It may be mentioned herein that on June 16, 1956, the defendants herein filed in the District Court of Carbon County, Wyoming, a petition for the adoption of the minor child Celeste but no final order has been made therein.

The parties will be mentioned herein as they were in the court below.

The facts herein are as follows: The plaintiff, James Campbell, and his wife, Bette Campbell, were married on August 6, 1951. They had one child born in 1952 and another child born in 1954. Plaintiff is connected with the Air Force of the United States and is a staff sergeant and has been awarded a medal for distinguished service. Being connected with the Air Force required him to be absent from his usual home a good deal of the time and that fact caused some friction between him and his wife. Bette, who also had previously been connected with the Air Force, wanted to go to college while the plaintiff was away from home and she went to college in Kansas City, Missouri, in the months of March and April 1955. At that time she met Ray Cardona, who was of Spanish descent, and, according to her testimony, she was intimate with him during the latter part of April and the early part of May 1955. She definitely discovered that she was pregnant in the latter part of June 1955 and, having had intercourse with Cardona later than the time that she had cohabited with her husband, she concluded that any child that she would have would be the child of Ray Cardona and that it would be best that any child by Cardona should be adopted by some outside persons. To accomplish that fact she called upon the Reverend L. R. Buckman to find some suitable people who would undertake the care and custody of the child. She thought that the child would be born about February 1, the period of gestation being on the average 280 days. The child was born on December 29, 1955. On December 30, 1955, Bette Campbell signed a written relinquishment to the child and consented to the adoption of the child by others without any notice to her. The following statement appears, dated December 31, 1955:

'To Whom It May Concern:

'Permission is hereby granted to release the person of baby girl born to Mrs. James R. Campbell on December 29, 1955, to the custody of Lester Buckman.

'Signed: Bette H. Campbell

'Signed: Bette H. Campbell

'[signed] James R. Campbell'

Mr. Buckman took charge of the child and delivered it to the defendants herein on January 6, 1956. According to the testimony of plaintiff and his wife, they figured that in view of the fact that the child was born on December 29, 1955, it was born prematurely if considered as the child of Ray Cardona, but they discovered sometime in January 1956, through the Welfare Department, that the child was not born prematurely but weighed seven pounds and seven ounces and that it was accordingly a normal child. They concluded that the father of the child was James Campbell, the plaintiff herein, who, according to their testimony, was with his wife in Kansas City, Missouri, for the period of four days during the latter part of March 1955, so that the child was born within the period of gestation of approximately 280 days figured from the time that plaintiff and his wife cohabited as above mentioned. Plaintiff then called upon the Reverend Buckman to deliver the child to him and when he did not do so plaintiff brought an action against him in the Circuit Court of South Dakota for a writ of habeas corpus to obtain the custody and care of the child. A hearing was had in that connection on March 23, 1956. The court found that James Campbell was the father of the child but inasmuch as the child had been delivered to the defendants in this case by the Reverend Buckman, the writ of habeas corpus was discharged. After that, on May 5, 1956, the present action was brought as already mentioned. During the trial Bette Campbell revoked her relinquishment to the child and her consent to its adoption.

Counsel for the defendants advances three propositions, namely, the following: Proposition 1: In the best interests of subject child she should be left in the home and custody of appellants; Proposition 2: Appellee has no interest in subject child by virtue of the fact that it was fathered by another, namely, Ray Cardona, and no consent of the waiver must be obtained from appellee even though the child was conceived and born during wedlock, the evidence being sufficiently clear that the child was in fact illegitimate; Proposition 3: If subject child be deemed a legitimate child of appellee for any reason whatsoever, then appellee has lost all rights with respect to and in this child by virtue of abandonment.

1. In connection with Proposition 1 it is said that the father of the child does not have an absolute right to the care and custody of the child and that a court may award such custody to another if it is for the best interests of the child to do so. It is not necessary herein to question that statement of the law. In the case at bar the trial court found that it was for the best interests of the child that the care and custody of the child be returned to the plaintiff, James Campbell, the father of the child. There are no particular facts in the case which show that the judgment of the trial court in connection with this matter should be reversed.

2. We shall next consider Proposition 3 in which it is contended that the plaintiff and his wife abandoned the child and have therefore lost all rights to the care and custody thereof. The trial court on this proposition made the following statement:

'In this connection the evidence shows that for sometime before and after the birth of the minor child in question, his wife gave him the impression that he was not the father of the child. She convinced him that it would be better for all concerned to have someone adopt the child. He continued to feel that way until sometime in January, 1956, when he found out from a Welfare Worker that the child was a normal baby and weighed over seven pounds. He immediately went to see Rev. L. R. Buckman about the return of the child. In February of the same year he consulted with a Mr. Clapp, who was the attorney who represented the Peters in obtaining the relinquishment and consent to adoption from Mrs. Campbell. He was informed by Mr. Clapp that he could do nothing about getting the child back. He then consulted with another attorney by the name of Gunderson. Shortly afterwards a Habeas Corpus proceeding for the return of said minor child was started by the Plaintiff in the Circuit Court of the Seventh Judicial Circuit Court of South Dakota. After a hearing on March 23rd, 1956, the South Dakota Court found that James Campbell was the father of said minor child; that the Rev. L. R. Buckman had surrendered said child to Joseph Peters and Lila Peters; that said child was in the State of Wyoming and that the Rev. Buckman had no control over said child at the time of the hearing. Accordingly, the Writ and the Rev. Buckman were discharged.

'Then in ...