Willis v. Bell

• Decision Date: 08 June 1908
• Citation: 111 S.W. 808
• Parties: WILLIS v. BELL.
• Court: Arkansas Supreme Court

111 S.W. 808

WILLIS v. BELL.

Supreme Court of Arkansas.

June 8, 1908.

Appeal from Circuit Court, Pulaski County; Edward W. Winfield, Judge.

Habeas corpus by Nathaniel P. Willis against Harry B. Bell. From the judgment rendered, plaintiff appeals. Affirmed.

Appellant, N. P. Willis, filed his complaint in the chancery court of Pulaski county against appellee, H. B. Bell, to obtain the custody of his child, Mary Francis Laura Willis, who is alleged to be wrongfully in the custody of appellee. The chancellor issued a writ of habeas corpus requiring the production of the child, which writ was duly served and appellee produced the child in response thereto. On the day set for hearing of the cause the chancellor was absent from the county, and by consent of both parties, who were present with counsel, the cause was transferred to the circuit court of Pulaski county, and issuance of another writ of habeas corpus was expressly waived by appellee; he consenting to appear and answer as if a new writ had been issued by the circuit judge. The case was heard upon the pleadings, documentary evidence, depositions of witnesses, and oral testimony, and a final judgment was rendered awarding the custody of the child pro tempore to the defendant (appellee), and plaintiff appealed.

The judgment of the court is as follows: "And it is therefore ordered and adjudged and decreed that the custody of the minor child, Mary Francis Laura Willis, be and remain in the said Harry Bell tempore; that the said Harry B. Bell be not allowed to remove the said child during her minority from the jurisdiction of this court, unless otherwise granted permission to do so from time to time; and that he be required to enter into a bond in the sum of $5,000 that he will faithfully abide the orders of this court, which bond must be filed with the clerk of this court within 10 days from this date, and upon the approval of the said bond by the clerk of this court this order shall thereupon become binding pro tempore. It is further ordered that the petitioner, N. P. Willis, be, and he is hereby, authorized and permitted to see the said minor child at the home of the said H. B. Bell in the city of Pine Bluff, Ark., at any and all reasonable times, but he shall not remove the said child from the custody of the said Bell, and, for the purpose of executing this provision, he, his agents, servants, and employés are hereby enjoined and restrained from taking or attempting to take or causing to be taken the said child from the custody of the said H. B. Bell, unless permitted to do so by the orders of this court. It is further ordered that the said petitioner, N. P. Willis, shall be permitted to write to the said child at all reasonable times, and that the said Bell shall answer such communications with reasonable promptness, giving the said Willis correct information as to the whereabouts and condition of said child. It is further ordered that the petitioner, N. P. Willis, pay all cost of this proceeding."

Davis & Pace (Chas. Jacobson, of counsel), for appellant. Austin & Danaher, for appellee.

McCULLOCH, J. (after stating the facts as above).

This is a controversy concerning the custody of appellant's child, who is now a few months over 5 years of age. Appellee is a brother of the child's mother, appellant's divorced wife.

Appellant and his wife, Hattie Bell, the mother of this child, intermarried at Indianapolis, Ind., April 25, 1900, and lived together, except during several short periods of separation, until the month of August, 1904, when the wife left her husband and went to Hayti, Mo., taking the child with her. The child was born to these parents on March 5, 1903, and was therefore about a year and a half old when the final separation of the parents occurred. Appellant went to Hayti a short time afterwards, and took the child back to Indianapolis; the mother following or accompanying him. After they reached Indianapolis, Mrs. Willis instituted habeas corpus proceedings in the circuit court of that (Marion) county to obtain custody of the child. The circuit court awarded custody to her, and on appeal to the Supreme Court of Indiana the decree was affirmed. Willis v. Willis, 165 Ind. 325, 75 N. E. 653. Six or eight months later Mrs. Willis came to Arkansas bringing the child with her, and took up her residence with appellee, her brother, and has resided with him up to the date of trial of this case below, except while she was out of the state for a time. On October 1, 1906, appellant obtained in the court at Indianapolis a decree for divorce from his wife on the grounds of desertion; no disposition being made in the decree concerning the custody of the child. On March 20, 1907, the probate court of Jefferson county, Ark., upon petition of appellee and upon the consent of Mrs. Willis, made and entered an order for the adoption of said child by appellee. The petition and order recites the fact that appellee had been divorced from his wife, that he was a resident of Indianapolis, Ind., and that the custody of the child had been awarded to its mother by a court of competent jurisdiction in the state of Indiana. The present proceedings were commenced by appellant in April, 1907, to obtain custody of the child.

If this case was one directly between appellant and his former wife, it would, under the proof, present little difficulty here. We would, without hesitation, affirm a decree continuing the custody of the child pro tempore, with its mother. Considering the present age of the child and her sex, the character and environments of the mother as shown by the evidence, we would deem it best not to take the child from her now. This view is prompted by a proper concern for the interest of the child, and does not leave out of consideration...