Rallihan v. Motschmann

• Decision Date: 08 February 1918
• Citation: 179 Ky. 180,200 S.W. 358
• Parties: RALLIHAN ET AL. v. MOTSCHMANN.
• Court: Kentucky Court of Appeals

200 S.W. 358

179 Ky. 180

RALLIHAN ET AL. v. MOTSCHMANN.

Court of Appeals of Kentucky.

February 8, 1918

Appeal from Circuit Court, Jefferson County, Chancery Branch, Second Division.

Suit by John Rallihan and another to enjoin Robert J. Motschmann from taking his infant daughter, Mary Motschmann, into his custody and from the county. Decree for defendant, and plaintiffs appeal. Affirmed.

Bennett H. Young, Hardin H. Herr, and Marion W. Ripy, all of Louisville, for appellants.

Richard P. Dietzman and Wm. P. McDonough, both of Louisville, for appellee.

HURT J.

This action involves the custody, control, and education of Mary Motschmann, an infant now 13 years of age, and the daughter of the appellee, Robert J. Motschmann, and a granddaughter of the appellants, John Rallihan and Mary Rallihan, who are husband and wife. The appellee and Mary J. Rallihan, a daughter of the appellants, were married on November 29 1902, in the city of Louisville, where both were born and reared, and where the appellants yet live. Mary Regina Moschmann was the only child of the marriage, having been born on May 4, 1904. After their marriage the appellee and his wife resided with his mother for one year, and then with the appellants, the parents of the wife, for one year; then with another for six or seven months; then with his mother for another year; then with the appellants for about two years--during all of which time there is no complaint that he did not support and maintain his wife and child. After this time he and his wife began housekeeping, and continued until they unfortunately became estranged, and separated in the month of May, 1910. Following the separation the wife instituted a suit for divorce against her husband, but before a judgment was rendered an arrangement was effected between them, and the suit was dismissed. The record does not disclose the grounds relied upon by the wife in seeking the divorce, nor the terms of the reconciliation, but it seems that they agreed to become reconciled to each other, although it does not appear that they ever thereafter actually lived as husband and wife. About the 1st of August, 1911, they came to an arrangement with each other by which it was agreed that the appellee would leave the city of Louisville and seek his fortune in one of the Eastern states, and as soon as he should secure employment sufficiently remunerative to enable him to provide a home for his wife and child, that he would send for them to come to him, which they would do, and thereafter he and his wife and child would reside together. Appellee went to Buffalo, N. Y., and after a time to Boston and then to Providence, R. I., about the beginning of the year 1913, and has since made his home at that place. Shortly after leaving Louisville he sent the necessary money to his wife to enable her and the child to come to him, accompanied with the request for her to do so, but for some reason unexplained she declined to go. Thereafter he requested her to come on two other occasions, upon one of which he sent the necessary funds to pay for tickets for his wife and child to come to where he was, but they never went. After the separation of appellee and his wife she and the child resided with her parents. It seems that for a time after leaving Louisville the appellee gave his wife some assistance in the way of sums of money and clothing, but afterwards he ceased to contribute anything to the support of his wife, probably after her declination to go and live with him, but he continued to furnish assistance to his child; to what extent does not definitely appear. He regularly paid her tuition at school; sent her presents of various kinds upon holidays and upon other occasions, and also sent her sums of money in small amounts from time to time and clothing; took an interest in her progress at school, and after she became 10 or 11 years of age wrote her a number of letters, and, as she says, sent her money whenever she would request it.

In the early part of the year 1916 the appellee instituted a suit in the proper court in the state of Rhode Island to secure a divorce from his wife. She resisted the application, and in the month of April, 1916, a judgment was rendered in the action, which appears to have been the result of an understanding between the parties, though the judgment of the court fails to show an agreement of any kind. The judgment divorced the appellee from his wife, but gave the custody of the child to the wife, and also directed the appellee to pay to his wife $3 per week for the support of the child until she should become 18 years of age, but gave him the privilege of having the custody and association of the child for as much as 60 days in each year, between June 15th and September 15th in the state of Kentucky, but provided that he should not take her out of the state. While in his custody he was to support the child entirely. The ground recited in the judgment for the granting of the divorce was willful desertion, and it seems that under the laws of that state when a decree granting a divorce is rendered, it does not become effective until 6 months have expired, and while the first decree was rendered in April, the one which became final was rendered on October 25, 1916. Thereafter, on October 29th, the appellee married a second time. His first wife, who had been in delicate health for 2 or 3 years, died on November 22, 1916. After her death the appellee, though he discharged the costs of her burial, ceased to pay the $3 per week for the benefit of the child, and thereafter opened negotiations with the appellants to secure her custody, which they denied him. Since the separation of the appellee and the child's mother the child had lived with her mother at the home of appellants, and after the death of her mother had continued so to live. Her grandparents had during that time treated her with great tenderness and affection, and had bestowed upon her all the care and attention necessary and suitable to a person of her age, sex, and station in life. There is no reason to doubt that, if permitted to have custody of her, they would continue the same kind treatment and care for her and maintain her to the extent of their ability, as they have heretofore done.

In the month of May, 1917, the appellee, having failed otherwise to secure the custody of his child, sought, by means of a writ of habeas corpus which he caused to be issued against the appellants, to obtain custody of his child, and after a hearing before one of the judges of the circuit court in Louisville, it was ordered that she should be delivered to him. This was done, but while he was awaiting a train to return to his home she was taken from him by an officer, under process from the juvenile court, which seems to have been set in motion by a maternal aunt of the child. He a second time had resort to a writ of habeas corpus, but this time against the board of children's guardians, and after another hearing the custody of the child was awarded to him a second time. In the meantime one of the appellants, John Rallihan, had procured his appointment by the county court as statutory guardian of the child. It should also be stated that the child's mother, shortly before her death, executed a paper in the nature of a last will and testament, by which she undertook to give the child to her mother, the appellant Mary Rallihan, and her brothers. After the result of the second writ of habeas corpus the appellants instituted this action in equity, by which they sought to enjoin the appellee from taking the child into his possession and from removing her from Jefferson county, and from interfering with her in any manner whatever. The appellee answered, and, the issues having been joined, a number of depositions and affidavits were taken and filed as evidence, and the remainder of the evidence was given orally by the witnesses in the presence of the court. The oral evidence was, however, written by the stenographic reporter of the court, to whom the case was referred, under an agreement of counsel, to take all of the evidence to be taken in Jefferson county, and to reduce the same to writing and file it with the court as a part of the record of the case. The court, upon final judgment, held that the appellee was entitled to the care, control and custody of the child, and directed that appellants' petition be dismissed, and from that judgment this appeal has been prosecuted.

(a) The only complaint made by appellants of any error made by the trial court in the admission and exclusion of testimony offered is that affidavits made by Alice Hendrickson Margaret Blotscher, Charles Blotscher, and Mary Rallihan, and offered as evidence by appellants upon the final hearing of the case, were excluded; the court upon objection refusing to permit the affidavits to be filed or to consider them as evidence. Mary Rallihan is one of the appellants, and she testified orally before the court, both in chief and in rebuttal, and her evidence appears in the report of the stenographic reporter, but there does not appear any affidavit purporting to be made by her in the record. The bill of exceptions contains the statement that the affidavit of Mary Rallihan was not an affidavit, but that statements which she was expected to make, in addition to those made by her which were shown, were an avowal. A detached paper, having no connection with her testimony, as reported by the official stenographic reporter, and purporting to be an avowal of certain statements she would make, appears in the volume containing the testimony reduced to writing by the reporter and heard by the court, but it is not in that portion of it which is certified by the reporter and attested by the judge of the court. There is...