Smith v. Smith

• Decision Date: 06 May 1949
• Citation: 220 S.W.2d 627,188 Tenn. 430
• Parties: SMITH v. SMITH.
• Court: Tennessee Supreme Court

220 S.W.2d 627

188 Tenn. 430

SMITH v. SMITH.

Supreme Court of Tennessee.

May 6, 1949

Appeal from Juvenile and Domestic Relations Court, Knox County; Hu B. Webster, Judge.

Suit for divorce between Kathaleen Atchley Smith and Emerson T Smith, wherein Kathaleen Atchley Smith filed a petition for custody of three children of the parties, wherein Emerson T Smith filed a cross-petition for custody of the children, and wherein Max H. Young and wife filed an intervening action requesting exclusive custody of one of the three children. From a decree of the Court of Appeals affirming the decree of the trial judge awarding one of the children to the intervening petitioners, Kathaleen Atchley Smith and Emerson T. Smith appeal.

Cause remanded to Court of Appeals to review the record de novo.

Cecil D. Meek, Knoxville, for appellant.

Goddard & Gamble, Maryville, for appellee.

BURNETT Justice.

This suit involves the custody of a four year old boy. In 1946 the parties, the caption of this lawsuit, were divorced. Subsequently both parties remarried. In January 1948, the mother who had since her divorce from Smith, remarried, filed a petition in the original divorce suit in which she sought exclusive custody of her three children. The father answered this petition and filed a cross petition in which she prayed for the custody of the three children of the parties. Max H Young and wife, (no relation to the parties) filed an intervening petition in the cause in which they requested the exclusive custody of the middle child--the only one of the three children involved in this litigation.

The trial judge awarded the oldest and the youngest child (both boys) to the mother and awarded the middle child to the intervening petitioners, Youngs. There was no appeal from the decree awarding the oldest and youngest son to the mother. This petition involves alone the awarding of the middle son to the intervening petitioners.

The record amply supports the finding of fact made by the Court of Appeals who affirmed the finding of the trial judge. The findings of fact as made by the Court of Appeals is as follows:

'Briefly stated, the facts are: The father and mother of this child did not assume the responsibilities and obligations of husband and wife and parents seriously. Their marriage ended in a liquor drinking party in which they participated. They failed to provide for their children in a substantial way. The mother was not in the best of health when they separated nor when the divorce was granted. The children were unwanted, it seems, by everyone. Their mother did not want them. Their father did not want them. Their grandparents did not want them. No member of either family wanted them. They were, to a great extent, forced upon their paternal grandparents. The home of these paternal grandparents was wholly unsuited as a place for these children to live. Their existence consisted of a series of efforts on the part of everyone to put them off on the other person. They were shuttled back and forth from one to another with no stability nor permanency about their location. The parents engaged in the shameful practice of discussing, in the presence of these little boys, that nobody wanted them; and that they had nowhere to go. They were shown to be normal, healthy, fine children. It is difficult to conceive of the mental pain and torture that they suffered when they heard these discussions.

'Their mother was neglectful in her attitude towards them. She went five months without seeing them at a time when she was able physically and financially to see them. Her present home surrounding do not present a very bright future for her children. The home is worth $4500.00 with a debt against it of $3800.00. Her present husband makes $200.00 a month. That amount is the family income. It seems to be a fair conclusion that with this income they must support four people (exclusive of James Patrick), make payments on their home, and pay all necessary expenses of maintaining it. Her husband frankly stated that he was expecting help from her former husband. It stated that if such help were not received he would have a 'tough' time supporting his wife and three stepchildren. It seems that he and his wife are making an honest effort to maintain a good, resectable home. She established a good reputation by the testimony of her neighbors.

'Support for the children from their father seems well-nigh impossible. He has overhead expenses which take all of his salary except $15.00 a month. These expenses will increase for he is expecting another child immediately which will require the ordinary expenses in such cases.

'James Patrick Smith went into the home of the intervening petitioners under unusual circumstances. His father had advertised for a home for the children in the fall of 1946. He was about two years old at that time. Mr. and Mrs. Max Young were a young married couple who had no children. They had been married six or eight years. Neither of them had ever been married previously. They wanted a child in their home for the Thanksgiving and Christmas holidays, so they answered the advertisement and arrangements were made with the father of the child for them to take James Patrick. At that time they had no idea of keeping him permanently.

'In the early part of 1947, after the holidays, the child had no place to go; so he continued to stay in the home of Mr. and Mrs. Young. The record shows the reputation and character of this young couple are above reproach in every way. They do not drink liquor and never have. They have been active in Church and Sunday School work all their lives. James Patrick is taken to Sunday School by them every Sunday. They love him and he loves them. He is thoroughly adjusted to Mr. and Mrs. Young and their home, and they are adjusted to him. Mrs. Young does not work, but devotes all her time to her home and this child.

'They have an excellent small home with no mortgage against it, and the home is well furnished. It is their desire to keep James Patrick, who is about four years old now, care for him, educate him, love him and treat him as their own child and adopt him if possible, thus giving him a legal claim upon them. Mr. Young holds a responsible position at a salary of $216.00 a month.

'Thus we see that James Patrick Smith, although he has been only two to four years old while living with Mr. and Mrs. Young, has done for himself, by his own personality, what his father and mother would not or could not do for him: he has won for himself a substantial, lovely home where he can be permanently, comfortably, and securely located with good, highly respected, Christian people who will love and care for him; and we do not intend to take that home away from him under the facts here appearing. We are primarily concerned with the welfare of James Patrick and not with the satisfaction of the natural desire of his mother to have his exclusive custody committed to her.

'The trial judge was definitely of the opinion that the welfare of James Patrick Smith demanded that his custody be awarded to the intervening petitioners. We cannot hold that the evidence preponderates aganist that conclusion.'

The Court of Appeals further says: 'The issue in this Court is limited to one question: Does the evidence preponderate against the decree of the trial court to the effect that the exclusive custody of James Patrick Smith was awarded to the intervening petitioners?'

The petition here raises the obvious question, that is, that since the two courts below have concurred in finding that the mother is a suitable person to have the custody of her oldest and youngest child that therefore the court should have as a matter of law granted custody also to the mother of the middle child. That since these courts have concluded that the mother is a suitable person to have custody of her other two children then that it necessarily follows that she is a suitable person to have custody of this middle child and that, therefore, as a matter of law the court erred in taking this middle child from her and placing it's custody in the Young's--unrelated parties.

Under the principles of the common law, the father...