Petition of Kauch

• Decision Date: 08 December 1970
• Citation: 264 N.E.2d 371,358 Mass. 327
• Parties: Petition of Robert KAUCH et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 371

264 N.E.2d 371

358 Mass. 327

Petition of Robert KAUCH et al.

Supreme Judicial Court of Massachusetts, Plymouth.

Argued Oct. 7, 1970.

Decided Dec. 8, 1970.

Stuart DeBard, Boston, for Robert Kauch.

Walter J. Skinner, Boston, for Elizabeth Saunders Warren.

Before SPALDING, CUTTER, KIRK, SPIEGEL and REARDON, JJ.

KIRK, Justice.

The case is before us on appeals of Robert Kauch (the father) from a final decree in the Probate Court, which dismissed his petition for the guardianship and the custody of his two minor children, Robert Kauch, Jr. and Brian S. Kauch, and from that part of another final decree which awarded custody of the children to Elizabeth Saunders Warren, the sister of the father's deceased wife. There is no appeal from that part of the latter final decree which appoints a Boston bank, also a petitioner, as the guardian of the property of the minors, all parties having assented thereto. ¹

The judge filed a report of the material facts. The evidence is not reported. The facts found by the probate judge must be accepted as true. Richards v. Forrest, 278 Mass. 547, 551--552, 180 N.E. 508. The sole question is 'whether the findings of the judge 'should in law require a decree different from that which was entered in the * * * (court below). " Cosgrove v. Cosgrove, 351 Mass. 64, 66, 217 N.E.2d 754, 756.

We summarize the facts. Robert Kauch, the father, was married to Mariellen Saunders on September 1, 1951. The boys, Robert, Jr. and Brian were born respectively in 1954 and 1958. The wife was an alcoholic. During the five or six years before the couple was separated in January, 1965, the wife rarely prepared meals. She had an independent income and received money from her parents. She was divorced from her husband in March, 1965, by decree of a Florida court, was granted custody of the boys and moved to Massachusetts where, because she was often inebriated, the boys received little attention, living in a house which to put it mildly 'was untidy and unclean.' Living with their mother the boys had to bear a burden that they might better have been spared. Mrs. Kauch died unexpectedly in May, 1968, leaving an estate then valued at $125,000.

The father, who has only a limited income, has since the separation, lived with his widowed mother in Virginia. He has faithfully made payments for the support of his children as ordered by the divorce decree. He sent gifts to the boys in March, 1965, saw them for two days in July, 1965, and sent gifts at Christmas. In 1966 he wrote to them and sent gifts on their birthdays in March, spent one week with them at Easter, spent two days in July and saw them for a visit at Christmas. In 1967 he wrote to them and sent gifts on their birthdays in March, saw them sometime in July and had them for three days during the Christmas holidays.

The judge concluded that the infrequency of contact which the father had with his sons during the three years they had lived with their mother 'demonstrated a passiveness and lack of concern' for them 'when they needed and could have used a more concerned and understanding father.' He stated, nevertheless, that the father 'is a man of good character and with a sincere love and concern for the boys * * *.'

The judge was lavish in his praise for the type of home life which the maternal aunt and her husband would afford to the boys at their residence in West Barrington, Rhode Island.

He found that the boys' personal needs would be more than adequately provided for out of the income from their mother's estate whether they lived with their maternal aunt in Rhode Island or with their father in Virginia. Although the boys expressed love for their father they preferred to make their home with the maternal aunt and her husband in Rhode Island. For these reasons and because the judge believed it to be 'in their best interest and welfare,' he awarded custody to the maternal aunt.

These findings as matter of law do not support the decree that was entered. On the contrary, the findings "* * * in law require a decree different from that which was entered * * *." Cosgrove v. Cosgrove, 351 Mass. 64, 66, 217 N.E.2d 754, 756. There must be a reversal.

Under G.L. c. 201, § 5, as amended through St.1961, c. 171, the parents of a minor child are entitled to his custody, even though a guardian is appointed, unless the Probate Court finds the parents 'unfit to have such custody.' The burden of proving unfitness is upon those challenging the parents. Hirshson v. Gormley, 323 Mass. 504, 507, 82 N.E.2d 811. The word 'unfit,' in general, means 'unsuitable, incompetent, or not adapted for a particular use or service.' Richards v. Forrest, 278 Mass. 547, 552, 180 N.E. 508, 510. Nearly all the relevant cases have considered the best interests of the child in determining whether the parents are unfit. Stone v. Duffy, 219 Mass. 178, 183, 106 N.E. 595; Richards v. Forrest, supra, 278 Mass. [358 Mass. 330] at 554, 180 N.E. 508; Barry v. Sparks, 306 Mass. 80, 84, 27 N.E.2d 728; Cassen v. Cassen, 315 Mass. 35, 37, 51 N.E.2d 976; Stinson v. Meegan, 319 Mass. 682, 684, 67 N.E.2d 465; Wilkins v. Wilkins, 324 Mass. 261, 262, 85 N.E.2d 768.

Special mention must be made of Ridgeway v. Cels, 350 Mass. 274, 214 N.E.2d 31. The probate judge had awarded custody of two minor children to their maternal...