Opinion
No. 2149
March 12, 1940
INFANTS — CUSTODY OF — FITNESS OF PARENT — WELFARE OF CHILD — PRESUMPTIONS — JUDICIAL DISCRETION.
1. It is presumed that the best interests and welfare of child will be preserved by placing it in the custody of its natural parents. 2. Evidence must be clear and satisfactory to warrant a decree depriving a parent of the custody of a child on account of incompetency or unfitness. 3. Where the custody and control of a minor child is in dispute, the paramount question is the welfare of the child. 4. Where mother seeking custody of minor child admitted that two years previously she had been an inmate of a house of prostitution and had since resided in various places and was not married, but did not testify that she had changed her mode of living and was financially able to take care of child, it was inferred that personal habits of mother had not changed, and presumption that mother was a proper person to take care of the minor child was overcome and mother was not entitled to custody of child. 5. The determination as to whom the custody of children should be awarded is within the discretion of trial court, and, unless such discretion is abused, judgment will not be disturbed.
APPEAL from the District Court, Sweetwater County; H.R. CHRISTMAS, Judge.
For the appellant, there was a brief and oral argument by E.V. Magagna of Rock Springs, Wyoming, and F. Henri Henriod of Salt Lake City, Utah.
As a matter of right, the mother is entitled to the custody of her minor child. The burden of proof to show that the mother is an unfit or improper person to have the custody of her child is upon defendant in this case. It is unnecessary for the mother to show that she is able to and is a fit and proper person to take care of her minor child. Schiller v. Douglas, 285 P. 1021; Norval v. Zinsmaster (Nebr.) 77 N.W. 373; Terry v. Johnson, 103 N.W. 319; Focks v. Munger, 149 P. 300; Winter v. Winter, 166 N.W. 274; Pinney v. Sulzen, 91 Kan. 407. The foregoing is a cross section of the authorities on the subject and we believe they are applicable to the evidence in the case at bar. Respondent was hired to care for the minor child in controversy and is not entitled to question the right of the person who hired her to the custody of her child. The court erred in overruling objections to evidence in regard to the years 1936 and 1937, but even with that testimony admitted, defendant failed to prove that plaintiff was unfit to have the custody of her minor child. The judgment of the lower court should be reversed upon the facts and law applicable to this case.
For the respondent, there was a brief and oral argument by W.A. Muir of Rock Springs.
The evidence shows that the child had never been with the plaintiff, and that plaintiff was unable to care for the child because of her immoral vocation. The evidence also showed that defendant was a fit and proper person to have the care and custody of the minor child, Kenneth LaMar Kennison. The evidence shows that appellant violated Section 20-103, R.S. relating to child abandonment. The welfare of the child was the paramount question in the case. Jones v. Bowman, 13 Wyo. 79; Tytler v. Tytler, 15 Wyo. 319; Harris v. Muir, 24 Wyo. 213; Madson v. Humane Society, 25 Wyo. 338; Stirrett v. Stirrett, 35 Wyo. 206; Curran v. Curran, 51 Wyo. 217. Counsel for appellant suggests that the burden of proof is on defendant to show that plaintiff was a fit and proper person to have the custody of the child, at the time of the hearing; that evidence of her character in 1936 and 1937 is not proof of her character in 1939. The trial court had a right to invoke the rule set forth in Jones on Evidence, 4th Ed. Vol. 1, p. 101, § 58, in view of the fact that appellant did not attempt to explain her conduct during the years 1937, 1938 and 1939. Things once proved to have existed in a particular state are presumed to have continued until the contrary is established by evidence. State of Iowa v. Fray (Iowa) 241 N.W. 663; Fish v. Fish (Me.) 138 A. 477; McGraw v. McGraw (Mass.) 50 N.E. 526; Appeal of Reading Fire Insurance and Trust Company, 57 Amer. Rep. 448; Hempstead v. Association (Kan.) 210 P. 492; 46 C.J. 1228, 1232, 1235, 1239, 1248.
E.V. Magagna in reply.
The case of Jones v. Bowman, 13 Wyo. 79, cited by respondent, involved a minor orphan child. Tytler v. Tytler, 15 Wyo. 319 involved a controversy between a father and a mother. The case of Harris v. Muir, 24 Wyo. 213, cited by respondent, was a controversy between the father and maternal grandparents of the child. Madson v. Humane Society, 25 Wyo. 338 involved the fitness of the parties to a marriage. Stirrett v. Stirrett, 35 Wyo. 206 was a controversy as between the parents, as was Curran v. Curran, 51 Wyo. 217, also cited. The foregoing cases are not applicable to the facts in the case at bar. A careful examination of other authorities cited by respondent will show that they are inapplicable to the evidence in the present case. On the question of abandonment, we submit the following cases: In re Galleher (Cal.) 84 P. 352; Wood v. Shaw (Kan.) 139 P. 1165; In re Baldwin's Guardianship (Ore.) 278 P. 1078; In re Snowball's Estate, 104 P. 44. With respect to the degree of proof required to deprive a parent of the custody of his or her child, we cite Jendell v. Dupree (Kan.) 195 P. 861; Breckenridge v. Breckenridge (Okla.) 229 P. 724; Cooke v. Cooke, 248 P. 83; Haskell v. Haskell, 152 Mass. 16; In re Green, 221 P. 903. The divorce decree awarding the custody of the child to appellant by a Utah court should be given great weight. A decree granting custody must be recognized, unless conditions have so changed as to require its modification. In re Marshall (Calif.) 279 P. 834; Milner v. Gatlee (Ga.) 76 S.E. 860.
This is a proceeding in habeas corpus brought by plaintiff and appellant Mrs. Ruby Kennison against Caroline Chokie, to recover the custody of Kenneth LaMar Kennison, plaintiff's minor son. The defendant answered that the child was entrusted to her keeping by the plaintiff on or about December 1, 1936, and that the plaintiff is not a proper person to have the boy in her custody. The court found that the allegations of the answer are true, denied plaintiff's petition, and awarded custody and control of the minor child to the defendant. From that judgment the plaintiff has appealed.
It appears herein that the defendant is not a relative of the minor child, and it is the contention of plaintiff that she, the mother of the child, is presumed to be a proper person to have him in her custody, and that the contrary has not been shown herein. There is no doubt that "it is a presumption of law that the best interests and welfare of the child will be preserved by placing it in the custody of its natural parents." 46 C.J. 1251. And it has been held that the evidence must be clear and satisfactory to warrant an order or decree depriving a parent of the custody of a child on account of incompetency or unfitness. 46 C.J. 1253. However, the paramount question at all times, when the custody and control of a minor child is in dispute, is the welfare of such child. That has been declared to be the rule by this court a number of times. Jones v. Bowman, 13 Wyo. 29, 77 P. 439; Tytler v. Tytler, 15 Wyo. 319, 89 P. 1; Harris v. Muir, 24 Wyo. 213, 157 P. 26; Madson v. Humane Society, 25 Wyo. 338, 169 P. 336; Stirrett v. Stirrett, 35 Wyo. 206, 248 P. 1; Curran v. Curran, 51 Wyo. 217, 65 P.2d 243. The evidence in this case shows that the child was born on March 12, 1932. The plaintiff in this case married one Francis Kennison. The latter brought an action for divorce against her in the State of Utah on the ground of desertion for a period of over one year. A decree was entered on September 20, 1935, granting the husband a divorce from the plaintiff on that ground. The decree awarded the care and custody of Kenneth LaMar Kennison to the plaintiff in this case. Subsequently, and some time during the year 1936, plaintiff came to Rock Springs, in this state, went under the name of Maxine Hunter, became an inmate of a house of ill repute, and was fined in the police court in that city a number of times on account of moral delinquency. She gave the custody of the child to the defendant in this case about December 1, 1936, asking the latter to keep and take care of the child, and give him a good home. She agreed to pay the defendant the sum of $20 a month for doing so. She thereafter left Rock Springs, and during the next year and a half was a resident of Butte, Montana, Glasgow, Montana, Tonopah, Nevada, Eli, Nevada, Grand Junction, Colorado, San Francisco, California, Reno, Nevada, Salt Lake City, Utah, and Pocatello, Idaho. During her residence in these various places she was at times known as Maxine Hunter, at times as Ruby Kennison. When the petition herein was filed, she was residing in Portland, Oregon. She was called for cross-examination in this case by the defendant, admitted that she had been an inmate of a house of prostitution at Rock Springs, had been fined in court on account thereof, had resided at the various places above mentioned, and is not married. The testimony further shows that the defendant is a good moral person, has taken good care of this child, and that the boy has become attached to her. It also appears that while the plaintiff agreed to pay to defendant the sum of twenty dollars per month, the only payments made during approximately the period of two years is the sum of $150. Plaintiff, though she had the opportunity to do so, gave no explanation of that fact.
We think that the foregoing facts clearly show that the trial court was warranted in holding that the presumption to the effect that the plaintiff is a proper person to take care of the child has been overcome. It is stated in 22 C.J. 86 that proof of the existence at a particular time of a fact of a continuous nature gives rise to an inference, within logical limits, that it exists at a subsequent time. That inference has been applied in cases of reputation or character, of chastity, and of personal habits. 22 C.J. 88. If the plaintiff at the time of the trial in this case was leading a life different from what she led when she was living at Rock Springs, and if she was financially able to take care of the child, she could have testified to that effect. She did not do so, and we think that the court was, accordingly, in view of the short time intervening, warranted in applying the inference above mentioned in this case. In Stirrett v. Stirrett, supra, we cited with approval 19 C.J. 347, in which it is stated:
"In the absence of a controlling statute and subject to the rules heretofore mentioned as to the welfare of the child and the rights of the parents, the determination as to whom the custody of the children should be awarded is within the discretion of the court and unless such discretion is abused the judgment will not be disturbed."
We do not think that we can say that the trial court in this case abused its discretion. The judgment must, accordingly, be affirmed, and it is so ordered.
Affirmed.
RINER, Ch. J., and KIMBALL, J., concur.