Walton v. Coffman

• Decision Date: 14 May 1946
• Docket Number: 6883
• Citation: Walton v. Coffman, 110 Utah 1, 169 P.2d 97 (Utah 1946)
• Court: Utah Supreme Court
• Parties: WALTON v. COFFMAN et ux

169 P.2d 97

110 Utah 1

WALTON v. COFFMAN et ux

No. 6883

Supreme Court of Utah

May 14, 1946

Appeal from District Court, Third District, Salt Lake County; Albert H. Ellett, Judge.

Reversed with directions.

Howard F. Coray and Edward W. Clyde, both of Salt Lake City, for defendants and appellants.

C Vernon Langlois, of Salt Lake City, for plaintiff and respondent.

Wade Justice. McDonough and Wolfe, JJ., concur. Larson, Chief Justice (dissenting). Pratt, J., not participating.

OPINION

Wade, Justice.

Plaintiff Virginia Walton, brought this action for a writ of habeas corpus to recover custody of her two minor children from the defendants, the Coffmans, who are her father and mother. On March 4, 1934, immediately after her eighteen birthday, Virginia married Ray Williams, and Marilyn Williams was born to them in September of that year. About May 30, 1935, Williams deserted Virginia and she and her baby went to live with her parents; at that time she was pregnant and Robert Lee Williams was born on October 3, 1935. Marilyn and Robert, hereinafter called Bobby, are the children involved in this action.

Virginia obtained a divorce from Williams, after Bobby's birth, in the fall of 1935. She went to work as an elevator girl at $ 40 per month on Thanksgiving day of that year and while she worked her mother took care of her children. She continued to hold this job, at least part of the time, until she married Vincent P. Walton on May 8, 1939. She has three children from that marriage. Prior to that marriage in June 1937 she married Joe Wheat, and shortly thereafter she moved to an apartment away from her parent's home but the two children involved herein, continued to live with her parents until sometime in March of 1938, when her husband Wheat was employed in St. George, Utah, at which time she took the children and went to that city. Bobby remained with her for only about a week when he was returned to the home of her parents, but Marilyn remained and lived with Virginia until she left Wheat and returned to live with her parents about Labor day in 1938. Only about a month of that time was spent at St. George -- the rest of the time Virginia occupied the apartment in Salt Lake City. About November 9, 1938, Virginia obtained a divorce from Wheat. No children were born from that marriage.

Shortly after her marriage to Walton on May 8, 1939, Virginia quit her job and they moved into a home owned by his parents on Kensington Avenue which is only a short distance from the home of her parents. They lived in that home for about 22 months, until March or April of 1941. During that time and all the time since until shortly before this action was brought, Marilyn has lived with Virginia. There is a sharp conflict in the evidence as to how much of the time Bobby lived with his mother and how much he lived with his grandparents during the time the Waltons lived on Kensington Avenue; each side claims that during that time he slept nights and kept his clothes with them, but each conceded that some of the time he slept at the home of the other party, and that he was back and forth a great deal from one home to the other. We are of the opinion that during that time Virginia purported to have him living with her but that his grandparents always had a bed and a change of clothing for him at their place and that he slept nearly half of the time at their home. After the Waltons moved from the Kensington Avenue home Bobby went to live with his grandparents and has made his home with them up to the time of the events out of which this action arose.

Sometime in October of 1944, the Coffmans went to Virginia's home and found Marilyn alone with the younger children; they waited there a while until Virginia returned. She was in an automobile with two men and was so under the influence of intoxicating liquor that she had to be helped into the house, where she set fire to a bed in lighting a cigarette. The Coffmans attempted to get her husband's mother to take care of her and the children, and failing in that they took her and all her children to their home. A quarrel ensued over her manner of living, and Virginia by telephone located a friend who was a state highway patrolman, who took her and the younger children away, but she left Marilyn and Bobby with her parents. Later her husband demanded that the grandparents surrender the children to her which they failed to do. Thereafter she contacted the children as they were on their way from school and attempted to take them forceably. The children ran from her and Marilyn succeeded in getting away but she caught Bobby and took him with her.

Thereafter a proceeding was commenced in the juvenile court in the interest of these children, involving their custody, and later on June 14, 1945, Virginia commenced this action in the district court and obtained a writ of habeas corpus to obtain the custody of these two children. Thereupon it was stipulated that Bobby would be returned to the grandparents and the action in the juvenile court would be dismissed without prejudice. This stipulation being complied with the matter was tried in the District Court.

The defendants contend that the question of what is for the best interest and welfare of these children is controlling in this case. They further contend that the evidence is conclusive that Virginia and her husband both habitually become intoxicated; that Virginia visits beer halls, both with and without her husband, and associates with men other than her husband. They argue that from these facts and the further fact that these children have been raised in the home of the defendants, Bobby practically all of his life and Marilyn up to the time her mother married Mr. Walton, it will be for the best interest and welfare of these children that they be placed in the custody of the defendants.

Virginia admits that she and her husband drink intoxicating liquor but claim that they never became intoxicated; she admits that while she was married to Wheat she went out with her present husband, and that since she married her present husband she has been out with Wheat and that for a time she considered divorcing her present husband and remarrying Wheat. She admits that on one occasion she went to a beer hall without her husband and took one of her smaller children along, and there drank beer and while there she met a man whom she had never seen before or since, that this man drove her and the baby with him to an auto tourist camp where he rented and paid for a cabin for them for the night and registered them as husband and wife. She, however, claims that the man never entered the cabin while she was there but left the camp immediately after registering, and that she and the baby occupied the cabin that night alone. She produced some corroborating testimony to that effect. She contends that nothing really wrong has ever happened between her and other men, and that her drinking and going to beer halls has not in any way interfered with her care of her children.

On the other hand she contends that it is not for the best welfare of the children to be placed in the custody of her parents. That while her mother is a devout and religious woman who has taken excellent care of her children while they have been in her home and is a person of high moral standards, still she is a person of very strong will who insists on the other members of her family following her wishes even against their own will, to such an extent that the others do not openly oppose her but secretly live lives contrary to her wishes; that her father has secretly drunk intoxicating liquors and has three times been discharged from his job as a conductor with the railroad as a result thereof, and that after one of those discharges he took a cure for that habit at a sanitarium in Denver; that her own marriage troubles have been largely brought about because she was afraid to take her mother into her confidence or openly oppose her mother's wishes; that her younger sister has had some marital difficulties for the same reason; and that her younger brother while attending high school, secretly married a girl who bore him a child, and when her mother learned of this she caused an annulment suit to be commenced and when that failed, she kept at him until she was finally able to break up the marriage. For these reasons she urges that it will be for the best interest and welfare of the children for them to be placed in her custody.

Virginia further contends that in cases of this kind, while the welfare of the children is the primary consideration, there is a presumption that the children's welfare will be best subserved under the care, custody and control of their natural parents and that therefore the courts will not deprive such parents of the custody of their children unless it is made to appear that such parents have in some manner surrendered such right of custody or that such parents are morally unfit to have the custody of their children or are unable to support them. She urges that she has not surrendered the right to the custody of these children to the defendants; that Marilyn has never lived in her grandparent's home except during the time that she herself was living with her parents; and that while Bobby has lived with her parents most of the time, his stay with them was only temporary and that she has never agreed to or intended to surrender him to them permanently. She further urges that the evidence does not justify a finding that she is morally unfit to have the custody of her children or that she is unable to support them.

We do not find that Virginia is morally unfit to have the custody of these children or that she is unable to support them. This does not mean that she is as fit...