Wilson v. Mitchell
| Citation | 406 P.2d 4 |
| Decision Date | 27 September 1965 |
| Docket Number | No. 578,578 |
| Parties | Frank A. WILSON, Sr., and Clara Wilson, Appellants, v. Andrea M. MITCHELL, Appellee. |
| Court | Supreme Court of Alaska (US) |
R. J. Annis, Robertson, Monagle, Eastaugh & Annis, Juneau, for appellants.
Shirley F. Meuwissen, Stabler, Gregg & Meuwissen, Juneau, for appellee.
Before NESBETT, C. J., and DIMOND and RABINOWITZ, JJ.
This is a dispute between the paternal grandparents and the mother of a four-year old child over the child's custody. The trial court awarded custody to the mother and the grandparents have appealed.
The mother, Andrea Wilson Mitchell, married Frank Wilson in 1959 when she was about 16 years of age. A daughter, Clara Lynne Wilson, was born of this marriage in July 1961. The parties were divorced in September 1963, with custody of Clara Lynne being awarded to the child's father.
Andrea married her present husband, William Mitchell, on October 14, 1963. In July 1964 Andrea's former husband Frank Wilson, was killed in an automobile accident.
From the time that Frank and Andrea were divorced their daughter, Clara Lynne, was actually cared for and was in the physical custody of Frank's parents, the appellants in this case. In August 1964 the appellants filed a petition for the adoption of Clara Lynne, and in October 1964 Andrea filed a motion to modify the divorce decree to award her custody of the child. After a hearing, the trial court entered an order placing:
[T]he full care, custody and control of Clara Lynne Wilson in her mother, Andrea M. Mitchell, subject to the protective custody of the Alaska Department of Public Welfare until further order of this Court with said Department to make periodic reports in writing to the Court as to the welfare and well-being of Clara Lynne Wilson.
Appellants' petition for adoption was dismissed without prejudice.
Appellants contend that the court erred in granting custody of the child to Andrea on the ground that the evidence showed she was unfit to have custody and that the child's welfare required that she remain with the appellants. The evidence principally relied upon by appellants to sustain their contention may be summarized as follows:
(1) In the 1963 divorce action a default judgment of divorce was entered against Andrea, since she had made no appearance. Frank Wilson testified in support of his complaint for divorce, which was based on incompatibility between the parties, that which he would come home at night after driving a cab the baby, Clara Lynne, would be wet and hungry; that Andrea didn't want to stay home and take care of the baby; and that she seemed to have little interest in the baby because she made little effort to come and see her while Frank and Andrea were separated prior to their divorce.
(2) Andrea admittedly committed an act of adultery with William Mitchell, her present husband, in 1962 while she was still married to and living with her first husband, Frank Wilson. In 1963 Andrea and William Mitchell lived together in an unmarried state for about two and one-half months prior to the divorce between Andrea and Frank Wilson but during the period in which they were separated
(3) Mrs. Clara Wilson, one of the appellants and Clara Lynne's paternal grandmother, is 44 years old. She testified that she and her husband loved their grand-daughter, Clara Lynne, that they had cared for her since she was seven months old, that they have a good home and sufficient means to provide the care that the child needs, and that they do not drink. It could be inferred from Mrs. Wilson's testimony that she and her husband lived a normal, well-adjusted life, and that Clara Lynne's welfare would be promoted if she remained with them.
Mrs. Wilson also testified that Andrea visited Clara Lynne only about ten times between January 1962 and the time this controversy arose in the fall of 1964; that during that time Andrea had written to Clara Lynne only once, on her third birthday, when she sent her a card and a small gift; and that Andrea had written to Mrs. Wilson on only two occasions. Mrs. Wilson described Andrea as being very nervous, and that she was happy and content as long as she got everything her way, but would become moody and sulky if anything went against her and she didn't get her way. It was Mrs. Wilson's opinion that Andrea was not fit to take care of the child because she liked to go out nights--that she and her present husband were 'night people.'
(4) Mrs. Albert Jorgenson lived in the same apartment house with Andrea when she was married to Frank Wilson and when Clara Lynne was an infant. She testified that one day Andrea, in speaking of Clara Lynne, had called her a bitch or a bastard, had said that she wanted nothing to do with the child, and wanted to be free of her so that she could have the freedom due her.
(5) Andrea's present husband, William Mitchell, works as a musician at a night-club called the Dreamland and earns $180 a week. His hours of work are from 10:30 p. m. to 3:00 or 4:00 a. m. the following day.
It was brought out during the examination of Mitchell, and also during examination of Andrea, that he had associated and played in the band with a man who had a criminal record and who used narcotics; that Mitchell had pleaded guilty to a charge of carrying a concealed weapon in 1963 and had been sentenced to 120 days in jail, with 60 days suspended; that while in jail he had lied to the District Magistrate by writing to him saying that he wanted to get out of jail in order to marry Andrea with whom he had been going for two years, when in fact he had not been going with her that length of time; that when he was a boy of 13 he had been hit by a truck and suffered a head injury and for about three years thereafter suffered from headaches, extreme nervousness and loss of appetite; that he used to have a temper and would break drum sticks and hit the wall with his hands and throw his clothes when angry; that right after his marriage to Andrea, he had been jealous of her because he wanted all her...
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