Whiteman v. Robinson

• Decision Date: 25 October 1960
• Docket Number: No. 12043,12043
• Citation: 116 S.E.2d 691,145 W.Va. 685
• Parties: James WHITEMAN v. John A. ROBINSON and Nancy Robinson.
• Court: West Virginia Supreme Court

Page 691

116 S.E.2d 691

145 W.Va. 685

James WHITEMAN v. John A. ROBINSON and Nancy Robinson.

No. 12043.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 27, 1960.

Decided Oct. 25, 1960.

Syllabus by the Court.

A parent has the natural right to the custody of his or her infant child and, unless the parent is an unfit person because of misconduct, neglect, immorality, abandonment or other dereliction of duty, or has waived such right, or by agreement or otherwise has transferred, relinquished or surrendered such custody, the right of the parent to the custody of his or her infant child will be recognized and enforced by the courts.

Franklin W. Kern, Charleston, for plaintiff in error.

Kingdon & Kingdon, Arthur R. Kingdon, Mullens, for defendants in error.

HAYMOND, Judge.

The petitioner, James Whiteman, the father of Julia Kathryn Whiteman, an infant, instituted this habeas corpus proceeding in the Circuit Court of Wyoming County, in May 1959, to regain the custody of his daughter, then about three and one-half years of age, from the defendants, John A. Robinson and Nancy Robinson, who have refused to permit the petitioner to have the custody of his child.

The proceeding was heard in the circuit court upon the petition for the writ, the writ issued upon the petition, the answer of the defendants, the replication of the petitioner, the evidence heard by the court, and the depositions filed in behalf of the respective parties. By its final judgment rendered October 19, 1959, the circuit court discharged the writ and refused to award the custody of Julia Kathryn Whiteman to the petitioner on the ground that he had failed to prove that a change of custody from the defendants to the petitioner would promote the welfare of the child. To that judgment this Court granted this writ of error and supersedeas upon the application of the petitioner.

On September 27, 1960, this proceeding was submitted for decision upon the motion of the petitioner to reversed the judgment of the circuit court and upon the written briefs and the oral arguments in behalf of the respective parties.

The petitioner and Betty Ruth Robinson, a sister of the defendant John A. Robinson, were married in June 1949. After their marriage they resided in Hawaii for a period of about five years. Four children were born of the marriage, three of them while the petitioner and his wife lived in Hawaii. These children were James, born April 9, 1951, Laura P., born July 19, 1952, and Gregory A., born January 22, 1954. During the year 1954 the petitioner, his wife and the children returned to the neighborhood of Wetzel County, West Virginia, where the petitioner and his wife had been born, and where, while visiting with their parents, they remained for approximately one year. They then moved to Seattle, Washington, where the petitioner had obtained employment, and during their residence in Seattle their youngest child Julia Kathryn was born on November 13, 1955.

On March 4, 1956, the wife of the petitioner, suffering a sudden abnormal mental affliction, disappeared from her home and her whereabouts were unknown until her death was determined and her body discovered twenty days later on March 24, 1956. During the interval between the disappearance of this wife and the discovery of her body the petitioner communicated with the members of his and her families in West Virginia concerning the absence of his wife and the situation confronting him and his four young children, and the defendant John A. Robinson, who is a successful practitioner of optometry residing in Mullens, West Virginia, went to Seattle and assisted the petitioner in bringing the children to West Virginia. Each of the three older children was left at the home of a member of petitioner's family or a member of the Robinson family on a temporary basis. Julia Kathryn, then about four months old, was taken by the defendants to live with them at their home in Mullens.

The petitioner testified that when he brought his children to West Virginia after the disappearance of his wife and before he learned of her death, his children were placed with his relatives to be cared for by them until his wife was found or he learned what had happened to her, or until he could arrange to take care of his then motherless children; and that he made it clear to the Robinsons that their possession of Julia Kathryn was of 'a temporary nature only.' That the custody of the child was to be merely temporary is not denied by the defendants; and the defendant John A. Robinson admitted in his testimony that when the petitioner permitted him and his wife to take the child to their home there was no understanding between the petitioner and the defendants concerning the length of time they were to keep her.

In April 1956 the petitioner was transferred to Chicago by his employer where he purchased a home and resided until he was transferred back to Hawaii by the same employer in May 1957. Since that time he has purchased a suitable residence and he is now employed at a salary of about $8,000 a year and resides permanently in that community.

In the interval between April 1956 and May 1957, the petitioner, during his vacation periods, visited his children in West Virginia and he made four or five visits to the home of the defendants to see Julia Kathryn. He has not contributed financially to her support and maintenance for the reason that the defendants did not want him to make any contribution for that purpose because they desired to and did furnish such support and maintenance.

In April or May of 1957, before his return to Hawaii, the petitioner received from his relatives the prompt and willing possession of his three older children who accompanied him to Hawaii and are now living with him and his present wife, to whom he was married in May 1958. While contemplating such marriage the petitioner discussed with the defendants its probable effect with respect to Julia Kathryn and the defendant John A. Robinson suggested that the petitioner should agree that the defendants should continue to keep her in their home for a period of one year after the petitioner should remarry. The petitioner refused to consent to that arrangement but testified that while he was located in Chicago he did consent that the defendants could continue to keep Julia Kathryn for six months after he should remarry. The arrangement between the petitioner and the defendants concerning their possession of the child, as recognized and admitted by the defendants, is indicated by a letter from the defendant John A. Robinson to the petitioner, dated February 10, 1958, in which he congratulated the petitioner upon his coming wedding and wished him and his wife a happy life together. The letter also contains these paragraphs with respect to Julia Kathryn:

'Next I want to remind you of an agreement we had and re-examine the purpose behind it. When you were last in Mullens we came to an agreement about Julie that it seems, possibly in the excitement of your coming nuptials, that you have forgotten, however, since the substance of that agreement is still important to me, I must refresh your memory, and beg of you to be as good as your word. If you will recall you agreed that Julie would be better off in Mullens for at least six months (6) after any future wedding by you. I thought twelve (12) months was a better figure but you would not agree to twelve, saying that six would be sufficient.

'The reasoning behind the agreement was two-fold. Since a new marriage has some difficult paths to traverse, we deaded a six month trial as to the soundness of the marriage would be advisable before putting Julie's future at stake. Secondly we decided that it would be much easier for your new wife to adjust to the job of caring for 3 children before a fourth was added.'

An earlier letter from the same defendant to the petitioner, dated August 15, 1957, contains this language: 'We are hoping and praying now that you will be given guidance to do and decide for Julie what is best for her from her own personal viewpoint. I know you and I could never agree as to what is best! I can't see how you could ever better her chances in life by taking her from here. There are many reasons for this viewpoint. Many which I think you will have to agree with. On the other hand I will agree you could offer some advantages she could not get here. In any event however I say again that we are praying for you to be given guidance to do the proper thing for her as we must abide by your decisions.'

In May 1959, the petitioner came to Mullens and informed the defendant John A. Robinson that he intended to take possession of his child on the following morning. The defendants refused to deliver possession of the child to the petitioner and this proceeding resulted from the refusal. The defendant John A. Robinson, admitting their refusal, testified that their reason was that they had decided that it was for the best interest of Julia Kathyrn that she should stay in Mullens permanently. He also testified that he and his wife had agreed to surrender the child to the petitioner after he had been remarried satisfactorily for six months, that the six months had expired, and that he and his wife have now decided that the agreement is not binding on them. The evidence also shows that the defendants requested the petitioner to permit them to adopt the child and that the petitioner repeatedly refused to permit them to adopt her.

The petitioner, who is about thirty five years of age, is regularly employed and owns a suitable residence in Hawaii. He is married to a well respected woman who is a native of Hawaii of Japanese ancestry and an American citizen. She is well educated, capable, and has employment which enables her to earn about three thousand dollars a year. She is the mother of three children by a former marriage. Those children, who are about sixteen, fifteen and fourteen years...