Stout v. Massie

• Decision Date: 01 July 1955
• Docket Number: No. 10687,10687
• Court: West Virginia Supreme Court
• Parties: Betty STOUT, v. R. D. MASSIE et al.

Page 51

88 S.E.2d 51

140 W.Va. 731

Betty STOUT, v. R. D. MASSIE et al.

No. 10687.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 18, 1955.

Decided March 22, 1955.

Dissenting Opinion July 1, 1955.

Syllabus by the Court.

1. A decree of a trial chancellor awarding custody of an infant to persons other than its natural parent will not be disturbed on appeal in the absence of a showing that the chancellor's discretion has been abused.

2. In a suit to determine the custody of an infant, the welfare of such infant is the controlling principle and a finding by the trial chancellor that its welfare will be promoted by allowing the custody to remain in the hands of the present custodians will not be reversed in the absence of proof showing that a change of custody is required.

D. Boone Dawson, Charleston, Wilbert H. Haynes, Fayetteville, for appellant.

R. J. Thrift, Jr., Fayetteville, for appellees.

LOVINS, President.

This appeal was prosecuted to this Court by Betty Stout, hereinafter designated as plaintiff, from a decree of the Circuit Court of Fayette County, West Virginia, whereby the Court held null and void an adoption proceeding concerning the infant daughter of plaintiff by R. D. Massie and Iris Massie, herein designated as defendants, and decreed that the custody of the infant remain with said defendants. The reason for giving the custody of the infant to the defendants is that the plaintiff, by her acquiescence and conduct, had transferred the custody of her infant daughter to the defendants.

On April 21, 1952, the Circuit Court of Fayette County entered a decree providing for the adoption of the infant by defendants. On February 25, 1953, plaintiff, by next friend, instituted this suit in the Circuit Court of Fayette County whereby she prayed that the former decree of adoption of Barbara Ann Williams be set aside. In support of her prayer, plaintiff alleges that she gave birth to the infant on September 4, 1950, out of wedlock, when she was approximately sixteen years of age, and while living with her parents at Pemberton, Raleigh County, West Virginia; that when the infant was approximately six months of age, the father of plaintiff having forced her to leave his home with her infant daughter, plaintiff went to the residence of the defendants, Iris Massie and R. D. Massie, her sister and brother-in-law respectively, who then and presently reside in the vicinity of Gatewood, Fayette County, West Virginia; that she lived with the defendants for at least one year and then went to Cincinnati, Ohio, in October, 1951, to seek employment; that she left her infant daughter with the defendants with the understanding that she would return for the child when she was in a position to care for it; that she corresponded regularly with defendants; that in April, 1952, plaintiff married Herbert Stout who has a home and is well qualified to rear plaintiff's child; that a fraud had been perpetrated on the Court as well as plaintiff and her child in the adoption proceedings; that no notice of the adoption proceedings was ever served on plaintiff although defendants knew where she could be located at all times. Plaintiff denied that she had abandoned her infant daughter, that she had failed to contribute to the support of said child or that she had conducted herself in any way that would warrant the adoption of her child by the defendants.

The defendants' answer admitted the existence of the decree of April 21st, 1952, by which they adopted plaintiff's infant daughter. But, they allege that sometime prior to the 21st day of April, 1952, when their petition for adoption was filed, an order was entered filing this petition and inhibiting and restraining plaintiff from interfering with the care, custody and control of said infant child until full hearing could be had on the merits; that a copy of this order was seen by plaintiff and her husband; that defendants went to Cincinnati, Ohio, in July, 1952, at which time they made known to plaintiff their plans to adopt her infant daughter and that no objections were made; that the reason plaintiff went to Cincinnati was because she was then unmarried and pregnant with child; that defendants have been residents of Fayette County for _____ years, are permanently situated and own their home; that defendant, R. D. Massie is steadily employed as a miner, earning approximately $350 a month; that defendants attempted to assist plaintiff in any way that was possible but had no intention of perpetrating a fraud on the plaintiff or in any way misleading the Court. They prayed that the petition filed on behalf of plaintiff be dismissed.

On March 27, 1953, plaintiff filed a Replication to the Answer of defendants, alleging in effect that the Answer was uncertain, untrue and insufficient and further that the proceedings had on the 21st day of April, 1952, were void and of no effect for the following reasons: (1) That no notice was served upon plaintiff of any hearing to be had in connection with the adoption of Barbara Ann Williams, her daughter; that she at no time saw or had read to her any order in connection with the said adoption proceeding; (2) At no time was there any guardian ad litem, or next friend appointed for the said infant at the hearing of the proposed adoption; (3) that there was no notice published in any newspaper regarding the adoption or the attempt to adopt; that plaintiff had no knowledge of the adoption of her infant daughter until late in the autumn of 1952; that she immediately secured the services of an attorney who after investigation, discovered the decree of adoption, dated April 21, 1952, had been rendered; that she immediately employed counsel to represent her for the purpose of having the adoption decree set aside. Plaintiff denies that she was pregnant at the time she left defendants' home to go to Cincinnati, Ohio.

Certain facts alleged in the petition, answer and replication are in dispute. Plaintiff alleged and so testified that she was forced to leave the home of defendants for the reason that defendant R. D. Massie, her brother-in-law, attempted to have improper relations with her. The mother of plaintiff and defendant, Iris Massie, testified that plaintiff left the home of defendants without just cause and because of an argument over the child. Defendant, R. D. Massie, denied the accusations of plaintiff.

The mother and a sister of plaintiff testified that they were informed by the plaintiff that she was pregnant at the time she went to Cincinnati, and that she had a miscarriage of a six month male child. This testimony is denied by plaintiff.

The record is clear that plaintiff has seen her child only four times during the two years she has been in Cincinnati; that she had never at any time contributed to the support of her daughter; that defendants have provided adequately in every way and have had the sole care and responsibility of the child since she was six months of age; that the plaintiff who is now nineteen years of age has married a man, 28 years old, who is a native of Cincinnati, Ohio; has a respectable standing in the community. He is employed as a dairy worker and has been employed by the same person for nine years with a salary of approximately $76.00 per week. Plaintiff and her husband presently reside in a three and one-half room apartment in a respectable neighborhood in the City of Cincinnati.

Litigation relative to the custody of an infant is cognizable by a court of law in habeas corpus proceedings. Pugh v. Pugh, 133 W.Va. 501, 510, 56 S.E.2d 901, 15 A.L.R.2d 424; Green v. Campbell, 35 W.Va. 698, 14 S.E. 212; Rust v. Vanvacter, 9 W.Va. 600. But such proceedings have been treated by this Court according to the principles of equity.

The instant proceeding was commenced for the purpose of setting aside a former decree of adoption, as well as determining the custody of the infant child of the plaintiff.

The record herein shows that a writ of error was granted to the decree of the trial court. We think it is erroneous to designate the appellate process as a writ of error and we now designate such process an an appeal.

We find nothing in any statute specifically indicating that a court of equity has jurisdiction of this proceeding. But an examination of text books and decided cases in other jurisdictions clearly shows that the jurisdiction and power of the court of equity are of ancient origin. In Hoggs, Equity Principles, First Edition, § 226, the following is stated: "The powers of a court of chancery in England to act as the guardian of infants, and to exercise a general supervision over all matters pertaining to their persons and estates, passed to and is now generally exercised by courts of chancery in this country without dispute. In the exercise of this jurisdiction, the court may permanently fix the status of infants, even in disregard of the legal rights of parents, when the welfare of the infants requires it." 3 Story's Equity Jurisprudence, 14th Edition, § 1752. See Hogg's Equity Procedure, Miller, 3rd Edition, § 788; Richards v. East Tennessee V. & G. Ry. Co., 106 Ga. 614, 33 S.E. 193, 197, 45 L.R.A. 712. In the Richards case, the principle is stated in the following language: 'The jurisdiction of courts of equity over the persons and propoerty of infants dates from a very early period in the history of these courts. In its inception, this jurisdiction belonged to the king of England, the same constituting a part of his powers, as parens patriae, to protect his subjects, and was transferred by him to the court of chancery. This jurisdiction is broad, comprehensive, and plenary. In all suits or legal proceedings, of whatever nature, in which the personal or property rights of a minor are involved, the protective powers of a court of chancery may be invoked whenever it becomes necessary to fully protect such rights.' See Annotation, 14 A.L.R. 295, 308; 43 C.J.S., Infants, § 5; 27 Am.Jur., Infa...