State ex rel. Van Loh v. Prosser, 9780

• Decision Date: 23 September 1959
• Docket Number: No. 9780,9780
• Citation: 78 S.D. 35,98 N.W.2d 329
• Parties: STATE of South Dakota ex rel. Ben and Christine VAN LOH, Plaintiffs and Appellants, v. Ellen M. PROSSER, Defendant and Respondent.
• Court: South Dakota Supreme Court

Page 329

98 N.W.2d 329

78 S.D. 35

STATE of South Dakota ex rel. Ben and Christine VAN LOH Plaintiffs and Appellants, v. Ellen M. PROSSER, Defendant and Respondent.

No. 9780.

Supreme Court of South Dakota.

Sept. 23, 1959.

T. R. Johnson, Frank Vust, Sioux Falls, for plaintiffs and appellants.

Claude A. Hamilton, Thomas J. Barron, Sioux, Falls, for defendant and respondent.

ROBERTS, Judge.

This is an appeal from a decree in a habeas corpus proceedings instituted in the Circuit Court of Minnehaha County by appellants Ben and Christine Van Loh to obtain custody of their grandson living with respondent Ellen M. Prosser, the paternal grandmother. The court decided that the child remain in the custody of the respondent and vacated the writ.

Verlyn Luvern Thorpe and his wife Darlene were residents of Inglewood, California. They were the parents of Steven Luvern who was born July 4, 1952. The parents when enroute from California to South Dakota to visit relatives were fatally injured on May 30, 1958, in a motor vehicle accident in Niobrara County, Wyoming. The child was seriously injured and received medical and hospital care for six weeks in a hospital in Lusk, Wyoming.

Respondent left for Lusk on the day of the accident and had the bodies brought to South Dakota for burial. After the funeral she returned and remained for four weeks with the grandson while hospitalized. Respondent was appointed by the District Court of Niobrara County, Wyoming, guardian of the person and estate of her grandson and removal of the child after his release from the hospital to the home of the respondent in Sioux Falls was specifically authorized. A resident of Wyoming upon application of the respondent was appointed by the same court administrator of the estates of the deceased parents. The administrator is asserting claims against the estate of the driver of the other vehicle involved in the collision for wrongful death of the parents and for injuries to the minor child. The grandparents had discussed the matter of a guardianship and the Van Lohs indicated their consent to the appointment of respondent, but later changed their minds or thought that the guardianship was only temporary. On July 15, 1958, respondent returned to Sioux Falls bringing Steven with her. About ten days thereafter, respondent taking the grandson with her left for Lusk, Wyoming, to attend to guardianship matters and then went to Inglewood, California, to wind up the affairs of the deceased parents.

Testimony for the appellants concerning the wishes of the deceased parents was given by Audrey Kalsbeek. Mrs. Thorpe and Mrs. Kalsbeek were employed in the purchasing department of an aircraft company in Los Angeles. There was conversation between them as to the purchase of a bicycle for Steven and the danger of riding on city streets. Mrs. Kalsbeek testified: 'She decided not to and she said if I could only live back home close to my mother so Stevie and Doreen could live together, she said, he could have a bicycle and ride all over the acres because, she said they've got a big farm'. Doreen is the seven year old daughter of the appellants. The witness further testified: 'Both Verlyn and Darlene said they wanted him raised on the farm close to Doreen, so they could be raised as brother and sister'.

The court found that respondent is a fit and proper person to have custody of the child, that she stands in the position of a trustee of a fund to be applied to his support and that the interests and welfare of the child will be promoted by leaving his custody with the respondent who by her prompt action helped the child through his physical and mental suffering and acted for his best interests in protecting and conserving his property rights.

Appellants contend that they are entitled to the custody of their grandson by reason of the fact that his parents had indicated a preference. The provisions of SDC 14.0506 upon which appellants rely read as follows: 'Of two persons equally entitled to the custody in other respects, preference is to be given as follows: (1) To a parent; (2) To one who was indicated by the wishes of a deceased parent; (3) To one who already stands in the position of a trustee of a fund to be applied to the child's support; (4) To a relative.'

The legislature has prescribed certain guides under which the courts should act in determining the custody of minor children. Among them are those prescribed by SDC 14.0505 providing that the court is to be guided 'By what appears to be the best interests of the child in respect to its temporal and its mental and moral welfare'. See Tompkins v. Lutheran Welfare Society of South Dakota, 74 S.D. 286, 52 N.W.2d 99; Application of Habeck, 75 S.D. 535, 69 N.W.2d 353. The wishes of a parent should be considered, but it does not follow that they outweigh what the court considers the best interests of the minor. In re Aviles' Guardianship, 133 Cal.App.2d 277, 284 P.2d 176. The provisions of SDC 14.0506(2), however, are not here applicable. We agree with the following views expressed in the trial court's memorandum opinion: 'At the time of these conversations as recalled by the witness, Mrs. Kalsbeek, Mrs. Thorpe could have had no thought that she and her husband would be killed. It seems apparent that the witness interpreted the conversations in light of after events. Mrs. Thorpe's statement as remembered by the witness cannot be interpreted as a plan to give custody of their son to the grandparents on the farm. There was no reference to or contemplation of the death of both parents. The statements as remembered and related by the witness when considered under the circumstances made do not indicate any preference as to custody of the child.'

The court states as a conclusion of law from the facts found that the statements made by the deceased parents when considered under the circumstances were not made in contemplation of death and did not indicate a preference as to the custody of the child within the meaning of the statute. Appellants contend that since there is no finding of fact upon the issue of preference the conclusion of law is unsupported. SDC 33.1403 requires that the facts found and the conclusions of law shall be separately stated. However, the designation of a finding of fact as a conclusion of law is not determinative of its true nature. Slimmer v. Meade County Bank, 38 S.D. 311, 161 N.W. 325. This court has held that a fact found by the court although expressed as a conclusion of law will be treated on appeal as a finding of fact. Dodson v. Crocker, 20 S.D. 312, 105 N.W. 929; States ex rel. Parsons v. Kaufman, 50 S.D. 645, 211 N.W. 691; Cohrt v. Sun Insurance Officer, 74 S.D. 153, 49...