BARTLETT v. BARTLETT
No. 11714
United States Court of Appeals District of Columbia Circuit
Decided June 3, 1954
Argued Feb. 12, 1954.
221 F.2d 508
In its petition for reconsideration Dallas offered to present evidence “showing first, that service of Dallas through Fort Worth International Airport (Amon Carter Field) is not and in the circumstances will not be adequate service required by Section 404 of the Act, and second, that if under the peculiar circumstances of any case both Dallas and Fort Worth are to bе served through a single airfield, the public interest requires that Love Field should be the field used for that purpose in view of the much greater volume of available traffic to and from Dallas than to and from Fort Worth.” In its memorandum denying reconsideration the Board did not treat of this proffer of evidence but merely referred to facts which it said were indicated in the record.
I would remand the case for further hearing upon the airport question and for a redetermination of that question pursuant to the established procedure and regulations relating thereto.
Miller, Clark and Fahy, JJ., dissented in part.
Mr. John Geyer Tausig, Washington, D. C., for appellee.
Before STEPHENS, Chief Judge, and EDGERTON, CLARK, WILBUR K. MILLER, PRETTYMAN, BAZELON, FAHY, WASHINGTON, and DANAHER, Circuit Judges.
BAZELON, Circuit Judge.
Robert Bartlett filed a complaint against his wife, Nicole, for custody of their son, then less than two years old. He alleged that she had deserted him without cause in 1951 and had come to the District of Columbia. She аnd the child have continued to live in her parents’ home in Washington despite his entreaties that she return to their home in New Jersey. Charging that she is selfish, unstable and therefore not a proper person to have custody, he alleged that the home of his parents offers a fine and loving atmosphere from which the child would benefit. Mr. Bartlett made no charge that his wife was unfit for custody by reason of any immoral conduct. A counter-claim fоr custody and maintenance for herself and the child was filed by Mrs. Bartlett. She offered her husband‘s “inconsiderate and miserly treatment” as the reason for having left him and stated that she was presently without adequate funds for the support of the child and herself.
* * *
After hearing extensive testimony from both parties and their witnesses, the trial court found that Mrs. Bartlett had had “reasonable cause” to leave her husband. It found that he had been miserly in providing for hеr and the child, and that his inconsiderateness in their marital and social life indicated that he had no love, affection or respect for her. Mrs. Bartlett was also found to be “a devoted mother [who] has always given the child * * * fine physical care and great love and affection” and, further, her parents’ home was deemed to offer “a proper environment for the child.” The court awarded custody to the wife on the ground that it wаs “in the welfare of the child” but also granted Mr. Bartlett the right to visit with the child in Washington and in his parents’ home in New Jersey. The decree required Mr. Bartlett to pay one hundred dollars per month for the maintenance of the child, but, because Mrs. Bartlett “is self-supporting,” the court concluded “in its discretion” to deny payments for her support.
Mr. Bartlett brought this appeal. His principal contention is that our decision
In Towson, the wife, who had left her husband, sought a limited divorce. Although the trial court denied such relief, it granted the wife‘s requests for custody of their child and payments by the husband for her support and that of the child On appeal, this court set aside the relief granted. The opinion explained that, under our statute,4 a husband who is willing to provide a suitable home for his wife is not obliged to support her if she lives apart from him without cause.5 But its only reference to the problem of custody and maintenance for the child is found in a statement, which was quoted with approval, from the New York case of Davis v. Davis.6 That statement is to the effect that, in a wife‘s unsuccessful action for a limited divorce, the court is not authorized to award custody of the child and maintenance payments for the wife and child.7
Significantly, the opinion in Davis pointed out that under the New York statute, the mother might obtain custody of the child in a subsequent habeas corpus proceeding even though custody had been denied upon failure of her separation action.8 Thus, if it be assumed that this court, in Towson, accepted the New York view reflected in the Davis case, it may also be assumed that this court denied custody to the mother only because the quеstion had arisen in the wrong form of action—viz., divorce rather than habeas corpus. This analysis of Towson is supported by Stickel v. Stickel,9 decided earlier by this court, since that case involved a habeas corpus proceeding wherein we upheld an award of custody to a wife who had left her husband without grounds for a legal separation. Today, of course, it is the substance not the form of the action which governs.
No case in this jurisdiction was cited in Towson to support the view that
That the welfare of the child is the primary criterion in custody cases has been reaffirmed many times in this court since Towson was decided.14
In one of these cases, we said:
“The question for the trial court is the welfare of the children. This consideration overrides all others, even where, unlike the present case, the proceeding is in habeas corpus. The rights of the parents, in all cases, must yield to the interest and welfare of the children. * * * * * * * * * * * * “Although the present proceeding is in the name of the children, appellant‘s argument is pitched, largely, upon the adversary rights of the parents; * * *. We may as well recognize that such considerations are very unreal in the case of parents and children. * * * The important consideration is that when a court is confronted with a question of custody, it is required to act as parens patriae. Under such circumstances, children cannot be used as pawns in a game of legal chess to work out conceptions of status and property rights. * * * * * * * *”
In an even more recent case in habeas corpus, we said: “For nearly half a century the established rule in this jurisdiction has been that the rights of the parent to the child are secondary to the welfare of the child. Its well-being, as we have said time and again, is the paramount consideration. Hence it is that, in all cases such as this, what is best for the child, rather than the natural right of the parent, is the controlling factor.”15
We hold that Towson must be deemed overruled to the extent that it may be
The matter of an award of custody is entrusted to the discretion of the trial court and its action may not be disturbed on appeal except for a clear abuse of that discretion.16
In exercising that discretion in the present case, the trial court relied, inter alia, upon its finding that Mrs. Bartlett had “reasonable cause” to leave her husband. We read this to mean such cause as would suрport a decree for separate maintenance or divorce in her favor because only such cause is recognized by law. So read, this finding determines the adversary rights of the parents. Hence it is not, under the governing principles discussed above, essential as a basis for an award of custody to Mrs. Bartlett. If, therefore, this finding were supported by the evidence, we could treat it as mere surplusage and thereupon affirm the trial court‘s award of custody. But a majority of my brethren believes the finding is clearly erroneous. They are unwilling to declare as a matter of law that the circumstances depicted in this record which led Mrs. Bartlett to leave her husband, irritating as they may have been to a person of her disposition, would constitute sufficient grounds for a decree of separate maintenance or divorce in her favor. Since it is not feasible to determine the extent to which the trial court‘s discretion was influenced by the finding held erroneous, the case must be remanded to the trial court for its reconsideration of the custody issue.
In remanding this case upon this issue, we are not to be understood as directing or even favoring an award other than to the child‘s mother.17 We leave the matter of the award to the discretion of the trial court. We merely direct that, in exercising this discrеtion, the trial court eliminate the finding that Mrs. Bartlett had “reasonable cause” to leave her husband.18
It is plain, however, that any findings on matters underlying the destruction of their home would be relevant for whatever light they may shed on the comparative fitness of the parties to care properly for the child.
Mr. Bartlett also contends that the trial court had no jurisdiction to order him to pay for the support of his child. He relies upon Towson for thе proposition that the enactment of our maintenance statute19 did not change the common law rule that a father has the
These views plainly indicate that, as in the matter of custody, the matter of maintenance is entrusted to the discretion of the trial court, in the exercise of which the controlling factor is the child‘s welfare.21 The “child‘s claim to paternal support, unlike the claim of the wife, is not affected by the merits of controversies, however serious, between the spouses.”22
We think, however, that our remand of the custody issue for reconsideration requires us, as a practical matter, also to remand the maintenance issue fоr the same purpose since the resolution of one may well bear upon the disposition of the other.
Chief Judge Stephens, Judges Edgerton, Prettyman, Washington and Danaher concur in this opinion. Judge Prettyman has also stated some views separately in an opinion in which Chief Judge Stephens joins.
Reversed and remanded for reconsideration in accordance with this opinion.
PRETTYMAN, Circuit Judge, with whom STEPHENS, Chief Judge, joins (concurring).
We are of the majоrity to whom our brother BAZELON refers as believing the finding that Mrs. Bartlett had reasonable cause to leave her husband was clearly erroneous. We concur in his opinion but are impelled to a further brief statement on this point.
This case concerns the custody of a child. Translated into language applicable to that problem, the finding that the wife had reasonable cause to leave her husband means that this wife had reasonablе cause to break up the family home, the child‘s home. The record does not support such a finding. The reasons advanced by the wife for leaving the home were the sort of irritations and difficul
The finding in question was one of the two which the District Court specifically direсted counsel to include in the draft to be submitted for court approval. So it appears that the court gave great weight to it. It is in order that the doctrine implicit in that finding may not stand as a ruling in respect to awards of custody in this jurisdiction that we are compelled, as we see it, to vacate the judgment and remand the case for reconsideration of the award.
We agree that in determining which parent is to be custodian of thе child it is not necessary to decide which of the parents is to blame for the destruction of the home. Expressed in other words, it is not necessary to find whether there was or was not reasonable cause, in a strictly legal sense, for the departing spouse to leave. These are the adversary rights of the parents of which Judge BAZELON writes, and they are, as he says, immaterial to custodianship. We are not so sure that the District Court meant “reasonable cause” in that strict legal sense; it may have meant a colloquial, or social, reasonable cause. But we agree with the others of the majority of this court that the law knows no reasonable cause for the separation of married couples except the causes specified in the statutes pertaining to divorce and separation, and we should not attempt to set up a new category of reasonable causes to use as criteria in custody cases. At the same time we agree that the circumstances which in fact generate a decision on the part of one spouse to leave the other may be relevant and material to the relative fitness of the parents to take proper care of the child. For the purpose of determining fitness for custodianship, such circumstances may be considered. To us the important consideration in this phase of this case is to make clear and certain that in this jurisdiction incidents and circumstances such as those depicted here do not constitute reasonable cause in any sense of the term for the destruction of a child‘s home.
WILBUR K. MILLER, Circuit Judge, with whom CLARK, Circuit Judge, joins (concurring in part and dissenting in part).
I do not regard the Towson case as in conflict with the principle that in a custody case the child‘s welfare is the controlling consideration. Here, as in that case, the wife left her husband without reasonable cause and took his child with her. Thus she destroyed the home her husband had provided for his family. That home, it appears, is as fitting for the child‘s upbringing as the one to which she repaired. I think the wife‘s
I would reverse and direct the entry of a judgment awarding custody to the husband.
FAHY, Circuit Judge (dissenting as to the manner in which the question of custody is disposed of).
I agree that notwithstanding the Towson case the District Court was empowered to award custody of the child to the wife, but I think that in part the power was erroneously exercised and that we should so decide. Neither parent is shown to be unfit to have the child‘s custody. The home of each, available to the child, is a good one. To use the words of the trial judge, the father‘s home with his own parents is “a beautiful home“. In these circumstances the child, now approaching the age of four, should have the companionship and care of both his father and mother to a greater degree than the decree permits. The paramount duty of a court to make such disposition of the problem as is thought to be conducive to the welfare of the child is to be carried out ordinarily within the bounds of the family circle. The court does not suggest a departure from this principle; but the family circle in such a case should include the home with the father as well as that with the mother. A division of custody until or unless under the continuing supervision of the District Court it should prove unwise, is as likely to be beneficial to the child in this case as is exclusive custody with the mother. I think the record before us would well justify this court in directing now that the boy be permitted to be in his father‘s custody as of right during substantial periods of time. I would require this, though I would not, as would my brethren Judges Clark and Miller, award entire custody to the father.