State ex rel. Lipscomb v. Joplin
| Decision Date | 16 March 1948 |
| Docket Number | 10034. |
| Citation | 47 S.E.2d 221,131 W.Va. 302 |
| Parties | STATE et rel. LIPSCOMB v. JOPLIN et al. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
1. A petition in a proceeding in habeas corpus, involving the custody of an infant, is addressed to the sound discretion of the court in which it is filed.
2. In a contest involving the custody of an infant the welfare of the child is the polar star by which the discretion of the court will be guided.
3. In a proceeding involving the custody of an infant the right of a parent to the custody of his child being founded in nature and wisdom and declared by statute will be respected unless transferred or abandoned; but the court is in no case bound to deliver the child into the custody of any claimant and may permit it to remain in such custody as its welfare at the time appears to require.
4. 'When a parent has transferred to another the custody of his infant child by fair agreement, which has been acted on by such other person to the manifest interest and welfare of the child, the parent will not be permitted to reclaim the custody of the child, unless he can show that a change of custody will materially promote his child's welfare moral and physical.' Cunningham v. Barnes, 37 W.Va 746, Pt. 3, syl., 17 S.E. 308, 38 Am.St.Rep. 57.
5. An order of the court in a habeas corpus proceeding involving the custody of an infant is not an unalterable final judgment but will continue only until the child may have the right to nominate its own guardian or until a material change of circumstances requires a change of custody.
Atkinson & Alderson, of Charleston, for petitioner.
Dennis R. Knapp, of Nitro, for respondents.
In this original proceeding in habeas corpus instituted by the State at the relation of Cynthia Ellen Lipscomb, the relator seeks to recover the possession of her four months old daughter Barbara Ann, from the respondents, Ruth Joplin and Denver Joplin, a married couple, into whose custody she delivered the child on November 3, 1947, when it was twenty days old. Upon the petition a writ was awarded on February 2, 1948, returnable before this Court on February 10, 1948. In obedience to the writ the respondents appeared on the day to which it was returnable, produced the child in court, and filed their motion to quash the writ. At the same time they filed their return. To the return the relator filed a replication and a demurrer. On her motion, and without objection by the respondents, the proceeding was continued until February 24, 1948, to enable the respective parties to introduce evidence in the form of depositions. At that time the case was submitted for decision upon the original and amended pleadings, the depositions filed in behalf of the respective parties, and the written briefs of counsel.
The relator, Cynthia Ellen Lipscomb, the mother of the child, is the wife of Eric Lipscomb. She is thirty seven years of age, is a resident of Kanawha County, West Virginia, and has never had any other children. Until she entered a Charleston hospital on October 14, 1947, where, on that day, she gave birth to the child, she had lived with her husband since their marriage in 1934. While she was at the hospital, where she says he visited her on occasions when he was drinking, a dispute arose between them concerning the paternity of the child. She states that he is its father but she admits that he told her at the hospital that he was not the father of the child and in his testimony, which was given in behalf of the respondents, he emphatically denies that the baby is his child. On October 21, 1947, at his direction, she went with the child, which was then one week old, to the home of her husband's married sister, a Mrs. Naylor, in Quick, Kanawha County, about two miles from her former home at Elkview in that county. She stayed with Mrs. Naylor whom her husband paid to care for her and the baby until she went, on the Sunday before Thanksgiving, 1947, to reside with her brother and his wife, who live comfortably and are financially well to do, at Quick, in Kanawha County, and since that time she has made her home with them at that place.
The relator and her husband have been separated and have not lived together since she entered the hospital on October 14, 1947. After their separation, he instituted a suit for divorce against her which is pending in the Circuit Court of Kanawha County and in which, on February 3, 1948, an order was entered, to which he consented, by which he is required to pay her the sum of $15.00 per week for her support. She has no home of her own but says, and her brother with whom she is now making her home and his wife corroborate her, that she and the child have permission to make their home with him and that he will assist her in rearing and caring for it properly. She owns an undivided one-eleventh interest, estimated to be worth from $5,000.00 to $8,000.00, in land containing about one hundred acres in Kanawha County which she inherited from her father, and from which she receives, in the form of oil and gas delay rentals, income of approximately $30.00 per month. Other than this rental and the payments of $15.00 per week which her husband is required to pay by court order, she has no income.
While the relator was staying at Mrs. Naylor's home in Quick, the respondents Ruth Joplin and Denver Joplin, strangers to her but acquaintances of Mrs. Naylor, learned from Ruth Joplin's father, who came there daily and who worked nearby, of the presence of the baby in the Naylor home. Ruth Joplin, the wife of Denver Joplin, having been informed that she could not have children of her own, was desirous of adopting a child, and also having heard that the relator intended to place the baby in some institution, came to the Naylor home to see the child and talk to the relator about taking it to her home. She saw the child on November 2, 1947, and on the following day the relator permitted her to have the custody of the child which she took to her home in Poca, Putnam County.
After the relator permitted Ruth Joplin to take the child on November 3, 1947, she did not inquire about it or call on the Joplins until December 30, 1947, at which time she came to the Joplin home at night and demanded that they return the child to her custody. Her demand was refused and this proceeding resulted.
With respect to the character of the custody of the child, whether it was intended to be temporary or permanent, at the time the relator permitted Ruth Joplin to take the baby on November 3, 1947, the evidence is conflicting. The relator insists that she permitted Ruth Joplin to have temporary custody of the child, to continue only until she was able to care for it. She does not, however, undertake to say how long the temporary custody was to last or to determine when she would be able to look after the baby. She denies statements, attributed to her and testified to by a number of witnesses, that she hated the child, that she did not want to keep it, that her husband was not its father, and that another man, whom she named and said she hated, was its father. When asked on cross-examination if a designated man other than her husband, or her husband, was the father of the child, she evaded or refused to answer the questions. She admits that she had planned to place the child temporarily in some institution in Charleston in which it would be given care. She attempts to explain her action in permitting a man and a woman who were strangers to her to have the possession of her child by attributing it to worry caused by her unhappy domestic situation and her physical illness at the time. She was not then, however, under the care of any physician, and a number of witnesses who observed her condition testified that she appeared to be in normal health.
Ruth Joplin testifies positively that the relator gave her the child on November 3, 1947, to keep permanently and assured her that she would never try to take it from her. She also says that she told the relator, at the time she obtained the child, that she would not take it unless she could keep it and that the relator permitted her to take the child with the understanding that she was to have it permanently. She is corroborated on that point by the testimony of the other persons who were present at the time she received the child on November 3, 1947.
Ten days afterwards, on November 13, 1947, Ruth Joplin visited the relator while she was still living at Mrs. Naylor's, and requested her to sign a written consent to the adoption of the child by the Joplins. This the relator declined to do. She testifies that she refused her consent because she had permitted Ruth Joplin to have the child only temporarily. Ruth Joplin's version of the matter is different. She testified that the relator refused her consent to the adoption of the child for the stated reason that she might need the child in court but that she told her again that, though she then refused her consent, she would never bother her by trying to get possession of the child. The relator's husband, though denying his paternity of the child, testifies that he is willing that it remain with the respondents and that it would be for the best interest of the child for them to have it.
After the child was taken from the hospital and while it was at Mrs. Naylor's with its mother, it received very little attention from her and no medical care, and its health was not of the best. Since it has been in the custody of the respondents it has had medical attention and it now enjoys normal health for a child of its age. The respondent, Ruth Joplin, has given the child constant care and attention, and she and her husband are fond of it and desire to keep and...
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