Wilson v. Mitchell

Decision Date05 July 1910
Citation111 P. 21,48 Colo. 454
PartiesWILSON et ux. v. MITCHELL.
CourtColorado Supreme Court

Rehearing Denied Oct. 11, 1910.

Error to District Court, City and County of Denver; Carlton M Bliss, Judge.

Habeas corpus by June V. B. Mitchell against George R. Wilson and another. Judgment for plaintiff. Defendants bring error. Affirmed.

This is a habeas corpus proceeding instituted in the lower court by June V. B. Mitchell, defendant in error here, against George R. and Linda Wilson, plaintiffs in error, to obtain the custody of her infant son, George Russell Wilson. The writ was duly issued and a return thereto made. The court, upon hearing the evidence, held 'that the welfare and best interests of this child demand that he be brought up in the care of his mother, and in the companionship of his sister,' and accordingly ordered plaintiffs in error to deliver the child to the custody of its mother. The case is brought here for review.

In 1898 June Van Buskirk, 17 years of age, a student of the American School of Dramatic Art, married Francis Sedgwick Wilson, aged about 21 years, a graduate of the same school, engaged in the theatrical profession. From this marriage, and on March 17 1900, George Russell Wilson, the subject of this controversy was born. George and Linda Wilson, plaintiffs in error, are the paternal grandparents of Russell. The married life of the parents of this child was not congenial. From the time the child was four weeks old the young mother alone took care of it, and for seven months it was nourished from her breast. The relations of husband and wife became more estranged as time passed, until December, 1900, at which time Francis sent June and the baby to her relatives in Indiana neither writing her, nor contributing anything to the support of herself or child. In March, 1901, learning that Francis was in Philadelphia, June borrowed money from her relatives and, with Russell, joined her husband, where a reconciliation took place, and they thereafter lived together until the spring of 1902. In July, 1901, Francis, taking his wife and baby, visited his brother's family in Nevada, where they remained for six weeks. Linda Wilson was also there. Francis, in the presence of his wife, suggested to Linda that the latter take Russell, and care for him, as it was inconvenient for the parents to do so, giving as his reason their theatrical work, though June at that time had never filed a theatrical engagement. Linda Wilson declined to take the child unless it should be given to her for all time, but to this condition the parents refused to give their consent, and returned to New York. In December, 1901, a second child--a girl--was born to Francis and June. When this child was about two months old, and seriously sick, Francis, in anger, took Russell, and, going out in a severe storm, remained away with him all night. The father's absence with the boy and the serious illness of the girl, alarmed the mother greatly, and, leaving the baby in charge of a friend, the mother went out in the storm, searched for, and found her husband and son, taking the latter home. Upon the return of Francis he advised his wife that he had previously been in correspondence with his father, George Wilson, and had determined to place the boy with the latter; that June must support herself, as he could not and would not longer do so. Within a few days thereafter Russell was taken ill with pneumonia, and while he was convalescent the little girl died. Francis thereupon insisted that Russell be placed with the parents of the former, at least temporarily, threatening to run off with the child and so place him if the mother did not consent. The mother persistently refused to surrender her boy, but finally upon the representation that the child's welfare, on account of the slow recovery from the pneumonia, and the heat in New York in summer, and the necessity that she support herself, consented to place the child with such grandparents temporarily, as she claims.

Francis S. Wilson, the father of Russell, achieved considerable success in his profession, earning even in his early career from $75 to $100 per week. He seemed, however, wholly lacking in financial judgment, or ability to conserve his resources. During the time he and June lived together, notwithstanding his salary and many hundreds of dollars from time to time advanced to him by George R. Wilson, he was never able to meet his obligations, and the environments of their home life were miserable poverty and domestic infelicity. June was frequently without food, and was under the necessity of borrowing small sums of money from her friend, Mrs. Cook, with which to buy food and medicine for Russell. In April, 1902, June borrowed money from her friends, with which she paid her expenses from New York to Sioux City, Iowa, where she took Russell and left him with his grandmother, Linda Wilson. Nothing was said by or to her about the permanent surrender of the child, though plaintiffs in error claim that their son assured them that they should have the boy permanently. Shortly thereafter the parents of Russell ceased to live together, and the mother secured a position on the stage, and from her salary contributed regularly to the support of Russell. She also visited the child in 1902, and the following winter, at her expense, the child and its grandmother visited her in Minneapolis. In the spring of 1903 defendant in error was advised that the grandmother had asserted her intention of permanently keeping Russell. The mother thereupon induced the grandmother, at the former's expense, to take the child to Chicago ostensibly for a visit with the mother. The latter secured possession of Russell and fled with him to New York, thence to England, and later to the continent. The father of the child, financed by the grandfather--one of the respondents here--pursued, and finally at St. Gallens, Switzerland, overtook, the fleeing mother with her child. A conference was had and the mother assented--as she now claims, by reason of threats and pleas concerning the child's welfare, and the fact that she had exhausted her finances--to return to America and surrender the child to the grandfather, which she did in August, 1903. Upon this trip she was accompanied by the child's father, and, arriving in New York, was met at the pier by George R. Wilson, who took possession of the child, and thereafter told its mother that she should never again have possession of her son. Within a few days George R. Wilson conveyed Russell to Sioux City, Iowa, and delivered him to Linda Wilson, who has retained him in her custody from that time to the present. In her flight to Europe defendant in error had expended the money she had saved, that which she had borrowed from friends, and raised from pawning some of her clothing and jewelry. Ater Russell was taken from her, she was alone in New York, had no lawyer or any one with whom to advise, was greatly in debt, and had no employment. She was, however, soon thereafter engaged to play in London, and left for that point October 9th. Just previous to her departure for England, her husband instituted a divorce proceeding, charging her with serious offenses against the marital obligations committed between August, 1902, and the summer of 1903, and praying for the custody of Russell. In that suit summons was duly served, and the defendant in error employed counsel, filed an answer, denied any wrongdoing, and likewise asked for the custody of the child. Upon arrival in England, defendant in error was taken ill, underwent a serious operation, and was unable to resume her theatrical engagements until May, 1904. After leaving the hospital defendant in error was cared for by Mrs. Clemow, with whom she lived until 1906. In June, 1904, the divorce suit came on for trial, and, defendant therein failing to appear other than by attorney, a decree of divorce was granted in favor of the plaintiff, with a rule that defendant show cause on or before September 23d following why the decree should not be made absolute. Though advised of the decree nisi, no further appearance was made on behalf of defendant, and the decree was made absolute in accordance with the rule, and the custody of Russell was awarded to the father. At that time Russell was not within the jurisdiction of the court in which the decree was entered, nor has he since been. In July, 1904, Francis visited England, and there met the defendant in error, and told her that, if she did not give him or send him $500 by the first of October, he would never permit her to hear from Russell, or see him again. He stated that the money was not for himself, but for George R. Wilson, who had advanced money on the divorce case, and had expended large sums in having her followed to Europe and repossessing himself of the child. The defendant in error was desirous of seeing her son and expressed an intention of visiting America for that purpose, but was assured by Francis that it was unnecessary, as he would bring Russell to England during the summer.

September 30th June wrote to Francis, advising him that she had been ill, unable to earn money, and could not send the $500 demanded. Previous to this time, Linda Wilson had written regularly to June, giving news of the child's health and progress, but in November she ceased writing, and notwithstanding frequent letters and cablegrams for news of her son, June had not a word until March, 1905, except an anonymous letter, and a letter written at the request of Linda Wilson by her nephew. About the middle of March, June received a letter from Francis demanding $1,000 to pay the expenses of Linda Wilson bringing Russell to England. Frantic with the desire to see her child, June borrowed from friends, and cabled...

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