Winter v. Winter
| Decision Date | 08 February 1918 |
| Docket Number | 31947 |
| Parties | CONSTANCE HOPE WINTER, Appellant, v. NICHOLAS WINTER, Appellee |
| Court | Iowa Supreme Court |
REHEARING DENIED JUNE 27, 1918.
Appeal from Wapello District Court.--SENECA CORNELL., Judge.
THIS is a habeas corpus proceeding, involving a controversy over the custody of a child. The defendant is the father of the child. The trial court awarded to him the custody. The petitioner by her next friend. Ella Buchanan, has appealed.
Affirmed.
Geo. F Heindel, L. C. Mitchell, and Chester W. Whitmore, for appellant.
Roberts & Webber and Newton W. Roberts, for appellee.
I.
Constance Hope Winter was born in May, 1913. She was born into the arms of a dying mother, whose life went out as that of the babe came in. The other surviving members of the family were the father (defendant herein) and a daughter, Helen, aged about fourteen. Constance was prematurely born, and weighed, at birth, but three pounds. The only hand of rescue held out to the helpless waif was that of Ella Buchanan, the sister of the mother, and the plaintiff's next friend herein. She offered to take it into her home and heart, and no one contended with her. She took it and nurtured it. Its life hung by a thread for many months. Night and day, she devoted herself to it with beautiful fidelity. It would be difficult to exaggerate the magnitude of her unselfish devotion. The father contributed the paltry sum of $ 2.00 per week as a contribution to expenses incidental to such care; and even this, he contributed as guardian of the child, out of property inherited from her mother. It will be quite as convenient for us to refer to Ella Buchanan as the plaintiff herein. She is such, in the sense that she asks the continuing custody of the little life which her love had saved. On May 15, 1916, the father stealthily took the child from the home of plaintiff, intending thereby to assert his own right of custody thereof. Hence this action. The father has no home for the present custody of the child. He has lived alone in his own home upon a farm near the city since the death of his wife; and to say the least, he is not gifted as a housekeeper. Neither has he shown any aptitude in holding the affection of his older daughter. She, too, made her home with the plaintiff for two years prior to the beginning of this proceeding. The plaintiff is an unmarried lady, 46 years of age, and is a professional nurse. She has a permanent position in such occupation, which yields her an income of $ 700, and has a home and some other property. On the other hand, her professional employment is quite exacting, and takes her time from 8 A. M. until 5 P. M., every week day. The purpose of the defendant, in taking the child from the custody of the plaintiff, was and is to have her reared by his own sisters, who are known in this record as Rose and Mary Winter. These ladies are also unmarried, and are 55 and 59 years of age, respectively. They have a fine home, and are well to do, and are ladies of excellent character. The child has been in their care and custody since she was taken by the father, in May, 1916. One of the grating circumstances in the situation is the fact that these ladies had barely, if ever, seen the child, and therefore had no personal affection for it. They have been moved to their undertaking in the matter solely from a sense of higher duty for the best interests of the child as they conceive them, and not from any impulse of personal warmth or attachment. Though they lived but a short distance from their brother's home, both before the death of his wife and ever since, there was no social intercourse between the two families. Up to the time of the trial, they had not made the personal acquaintance of their brother's older daughter.
The disputed questions in the case are purely fact questions. The case is not triable de novo on appeal. In such a contest the father, as the only surviving parent, starts with a very strong presumption in his favor. The fact that his situation was not suitable to take the earlier care of the...
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