Wilson v. Clary
| Decision Date | 22 April 1948 |
| Docket Number | 16068. |
| Citation | 47 S.E.2d 618,212 S.C. 250 |
| Parties | WILSON et al. v. CLARY et al. |
| Court | South Carolina Supreme Court |
John M. Schofield, of Walhalla, and John H Bramlett, of Greenville, for appellants.
No appearance for respondent Clary.
Beryl Eugene Clary (Betty Ann Wilson) was born in Greenville on the 23rd day of March 1934. When she was only about three months old her mother died and her father, Paul L. Clary, gave the infant child to Mr. and Mrs. Ira T. Wilson, a deaf mute couple without children of their marriage. The child is normal and had reached the seventh grade in school at eleven years of age when the court proceedings under review were had in 1945.
On March 4, 1943 the father, who was then in the United States Navy, executed a deed of the child to the Wilsons whereby he committed to them the care, custody, maintenance, education and support of the child during her minority, quoting 'together with all rights, privileges, benefits and considerations that should be exercised by me (the father-grantor) as parent, over and in respect to said child.' In the nature of an habendum the deed also contains the following provision: 'To Have And To Hold the said child * * * against me and all persons claiming or to claim any interest, right or privilege through me in and to the said child * * *.' See, however, Sec. 8633 of the Code of 1942 and Watson v. Watson, 134 S.C. 147, 132 S.E. 39.
In May 1943 Mr. and Mrs. Wilson filed their petition in the Court of Common Pleas, which was usual in form, for the legal adoption and change of name of the child. A guardian ad litem was appointed by the resident Circuit Judge and decree followed wherein was recited the precedent proceedings, that a hearing was had before the court whereupon it was ordered that the child should be the adopted child of petitioners with the right of inheritance and that her name be changed to Peggy Ann Wilson. This decree was dated May 29, 1943 and duly enrolled in the judgments of the court. It is noted that it fixed the name as Peggy Ann Wilson. However, the precedent deed referred to the child as being at that time called 'Bettie Peggy Ann Wilson' and the name in the present proceedings is as was first stated above, viz., Beryl Eugene Clary (Betty Ann Wilson). In the testimony she was usually referred to as Petty. This confusion is of no present consequence.
Shortly after his discharge and return from service the father apparently by the aid of the Department of Public Welfare of Greenville County, undertook to deprive the Wilsons of the custody of Betty and he filed his unverified petition in the Juvenile Court of Greenville County on November 5, 1945 alleging that Betty was neglected and was under such improper and insufficient control as to endanger her morals, health and general welfare and particularly that she was abused and in danger of becoming delinquent, and of becoming emotionally upset and of impaired health, the latter because of the conditions existing in the home of her foster parents, the Wilsons. The Judge of the Children's Court immediately issued an order awarding the custody of the child, pendente lite, to the father, and summons was issued to the Wilsons. They appeared by two attorneys who were other than the attorneys who now represent them upon this appeal. The attorneys represented the Wilsons at the hearings, produced witnesses (including their clients) and cross-examined the adverse witnesses. There is no question of their full and persistent participation in the proceedings.
A great deal of testimony was taken in the Children's Court, of social workers and neighbors, of Betty's Sunday School and public school teachers, some tending to prove unfavorable conditions and treatment of the child in the Wilson home and some, adduced by the adopted parents, which tended to prove otherwise. Betty also testified. There was indeed almost total conflict in the testimony. There was extensive cross-examination of petitioner's witnesses by the Wilsons' then counsel and the court also participated in the examination and cross-examination, the latter particularly with respect to respondents' witnesses. No counsel represented the petitioner and he himself took part to a limited extent in the examination and cross-examination of the witnesses.
The hearings were concluded in the Children's Court on November 30, 1945 and thereafter, on February 21, 1946, the Judge awarded (by formal order) custody of the child to her paternal grandmother, Mrs. Eugenia McGuyre, and provided that, quoting, 'the court shall retain joint jurisdiction with her.'
It appears that under the temporary order pendente lite of award of the custody of the child (and the subsequent order recites) that the latter appeared to be happy with her grandmother and the arrangement, quoting, 'seems to be satisfactory with Mr. and Mrs. Wilson, so long as they are allowed to visit said child at reasonable intervals.' By final provision of the order permission was given Mr. and Mrs. Wilson to visit the child at regular intervals, not exceeding once a week.
An order of the Children's Court supplemental to that just reviewed recites that it was rendered after hearing on May 31, 1946 upon motion of the attorneys for Mr. and Mrs. Wilson which alleged changed conditions resulting from the fact that meanwhile the father, Clary, and his mother (to whom custody had been awarded) had moved from Greenville and the child was then with her paternal aunt, Mrs. Eva (G. H.) Hudson, and the latter had petitioned the court for the custody of Betty. Considerable testimony (which is not contained in the appeal record) was taken in behalf of the petitioner, none for the Wilsons. It was found that it would be to the best interest of Betty, then called Beryl Eugenia Clary, that custody of her not be returned to the Wilsons. Further provisions of the order are quoted as follows:
It is noted that thus a strange result in the proceedings in the Children's Court has come about. Its order awarded custody to Mrs. McGuyre upon the condition, quoted hereinabove and now again, that 'the court shall retain joint jurisdiction with her.' It was established in the supplemental order that Mrs. McGuyre had moved from Greenville. Yet the original order whereby custody was awarded to her was re-affirmed. However this court is not concerned in this appeal with the apparent paradox for the reason to which reference will be made directly in the disposition of the exceptions.
Meanwhile, and months before the supplemental order just discussed, the attorneys for Mr. and Mrs. Wilson, appellants here, filed on February 26, 1946, a petition in the County Court of Greenville for a writ of certiorari to the Children's Court whereby its judgment and proceedings should be reviewed by the County Court in the nature of appeal to the latter. Appropriate writ was issued on the same day and certified return of the record and proceedings was commanded of the lower court. The Judge of the County Court passed an order on February 7, 1947 wherein it was recited that he had formerly appeared as an attorney (apparently only in the adoption proceedings) and was disqualified, and that on motion of the then and present attorneys for the appellants in this Court, the proceedings on certiorari were transferred to the Court of Common Pleas of Greenville County. On August 5, 1947, the latter Court decreed as follows:
Certiorari was improvidently issued. The petition therefor contained allegations only pertinent to appeal. The concluding provision of Sec. 256 of the Code follows: 'All appeals from the children's court established under the provisions of this section shall be made to the circuit courts of Greenville County.' However, it was treated as an appeal in the lower court and here.
Children's Courts, so designated, are authorized as divisions of the Probate Court in counties of population of 85,000 to 100,000 by Sec. 255 of the Code of 1942. Foster v. Roland, 205 S.C. 457, 32 S.E.2d 375. The following section, No. 256, provides additionally for the Children's Court of Greenville County and adopts the consistent provisions of Sec. 255. The latter refers in some of its provisions to the court as the 'juvenile' court. Whence, doubtless, the varying appellations of 'Children's Court' and 'Juvenile Court' in the record of the instant proceeding and the variance is immaterial. Reference may be had to the cited statutes for the jurisdiction, power and duties of the court and its officials. They need not be here discussed.
From the quoted order of the Court of Common Pleas dated August 5, 1947, Mr. and Mr. Wilson have appealed to this Court. They are represented by substituted counsel as has been said. There was no appearance contra. The exceptions will be reproduced and treated seriatim with observation of appellants' Roman numbering.
I. The Children's Court of Greenville County does not have jurisdiction of the cause of action or the parties hereto.
This exception falls so far short of the requirements of rule 4(6) of this Court that it need not be considered. It cannot be reasonably contended...
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