Willis v. Bell
| Decision Date | 08 June 1908 |
| Citation | 111 S.W. 808,86 Ark. 473 |
| Parties | WILLIS v. BELL |
| Court | Arkansas Supreme Court |
Appeal from Pulaski Circuit Court, Second Division; Edward W Winfield, Judge; affirmed.
STATEMENT BY THE COURT.
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 pro 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 five thousand dollars that he will faithfully abide the orders of this court, which bond must be filed with the clerk of this court within ten 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.
Judgent affirmed.
Davis & Pace, for appellant; Charles Jacobson, of counsel.
1. The principle of res judicata applies to a decision as to the custody of a child on habeas corpus while the state of facts remained the same. 99 Mo. 484; 6 L. R. An. 672; 12 S.W. 798; 105 Mich. 61; 55 Am. St. 435; 62 N.W. 1009; 37 Minn. 260; 37 N.W. 334; 25 Wend. 64; 35 Am. Dec. 635; 96 Ind. 6; 37 La.Ann 133. When different conditions prevail, another court may take up the question and make a different order where the welfare of the child requires, even though no material change of circumstances be shown. 37 La.Ann. 133; 67 L. R. An. 783. See our statute: Kirby's Digest, §§ 1342 to 1345, etc.
2. The adoption proceeding is a nullity as to Willis. 11 Am. St. 808; 62 Am. St. 17.
3. The father by law has the paramount custody and control of minor children. Hoff. Ch. 499; 27 Barb. 14; 8 How. Pr. 288; 5 L. R. A. 781; 112 Ind. 183; 103 Id. 569; 104 Id. 227; 43 Iowa 653; 6 Me. 462; 16 N.J.L. 419. The welfare of the child is the paramount issue; and where father and mother have separated, it is the duty of the court to confine the custody of the child to that parent best suited to maintain, protect and educate it, and bring it up in moral courses. 12 R. I. 462; 34 Am. St. 694; 44 Ala. 670. The only inquiry and true test is, is the father a suitable person to take care of the child? Hurd on Habeas Corpus (2 Ed.), 550; 32 Oh. St. 305; 82 Va. 433; 21 N.J.Eq. 384; 35 Hun, 334; 61 Iowa 199; 59 Ga. 555; 10 Allen, 270; 26 Kans. 650; 23 Ill.App. 196; 75 Ala. 409; 37 Ark. 27; 19 Wisc. 274.
4. The father is deprived of the custody only (1) where he is incompetent or improper person, and (2) where the enforcement of the rule would obviously destroy the happiness and well-being of the child. 76 Me. 565; 103 Ind. 569; 26 Kans. 650; 53 Am. St. 545; 68 Ala. 299; 56 Miss. 408; 3 Mason, 482; 48 Id. 349; 6 L. R. A. 672; 51 Id. 839; 20 Am. Dec. 324; 9 W.Va. 611; 88 N.C. 31; 1 Halst. Ch. 454; 40 N.H. 272, 280-1; 44 N.H. 321; 37 Ark. 29; 32 Id. 92; 50 Ark. 92; Ib. 351; 78 Id. 197; 82 Ark. 461.
Austin & Danaher, for appellee.
1. The matter is res judicata, and the judgment binds all parties and privies. 23 Cyc. 1253, 1319.
2. No abuse of discretion or error in judgment is shown, and this court will not interfere.
3. Humanity, respect for parental affection and regard for the infant's best interests are the three guides for the courts. 50 Ark. 351; 37 Id. 29; 78 Id. 198.
OPINIONMCCULLOCH, J., (after stating the above facts).
This is a controversy concerning the custody of appellant's child, who is now a few months over five 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, Indiana, 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, Missouri, 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, Arkansas, 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, Indiana, 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 the rights and feelings of the father. We do not mean to intimate that we conclude from the testimony in the case that he is not a fit person to have the custody of his child, or that his home and surroundings would not afford suitable asylum for it. On the contrary, we think the evidence establishes the fact that he is a man of good repute, that he is in good condition financially, and has a comfortable home shared by his mother, and that the child would be well cared for there and properly reared. But for the present, at least, what she needs most is a mother's care and attention.
As we have said, therefore, the case would not be difficult of solution if the controversy was directly between the two parents. But such is not the state of the case. The mother has, by her own act in consenting to the order of adoption by her brother, done all she could to legally disestablish her parental relation toward her child. It hag been given the name of another, and is being taught to forget her father. If the attempted act of adoption be legal and binding, it has completely changed the name and legal status of the child.
An important and controlling question is therefore presented as to the legal effect of the attempted adoption. Was it valid for any purpose?
The statutes of this State impower the probate court of the county where a child resides to make an order for its adoption by another person, but they are expressly prohibited from doing so if the child has "a father or mother living unless such father or mother appear in open court and give consent thereto, provided that, if such petitioner show by...
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