82 Neb. 625 | Neb. | 1908
This was a petition for a writ of habeas corpus by William G. Clarke to obtain possession of his two minor children. The petitioner was married to Anna Carpenter Lyon in 1885, in the state of Illinois, where they lived to
It seems that the wife, Anna, was possessed of an estate in her own right sufficient for the support of herself and children; and, beyond the husband’s releasing any marital claims to which he was entitled in her lands, no adjudication of property rights was made between the parties. The wife, with the two boys, removed to Lincoln, in this state, where she resided until her death, December 21, 1906. From the time of the divorce until her death she supported herself and the two boys without any assistance from their father. The petitioner very soon after the rendition of the decree of divorce married a second wife, Adelaide, with whom he lived until about six months before the commencement of this proceeding, and by whom he had a son, Myron, who was at the time of the taking of the evidence in this case about four years old. . The respondent Lyon and the wife of the respondent Wood were half sisters of Anna Carpenter Clarke; and, while the latter left no will, she upon her death bed expressed the wish that Mr. and Mrs. Wood should have the custody of the children. The respondent Lyon, who, it is claimed, resided in Waukegan, Illinois, came to Lincoln about the time of the death of the mother, and, together with Mr. and Mrs. Wood, took charge of the children. On the 4th day of January, 1907j the petitioner obtained an order in the original divorce suit from the circuit court for Cook county, Illinois, awarding him the permanent custody and care of said children. Upon the intervention of certain
On February 20, 1907, the petitioner began this proceeding, his application setting forth his relationship to the children, the rendition of the decree of divorce, the subsequent modification thereof, and alleging that the said children were unlawfully restrained of their liberty. For answer to this application the respondents alleged their appointment as guardians, asserted their competency to properly discharge such trust, and charged that the petitioner “is not a suitable person to take care of and have the custody of said children, and that the welfare of said children would be better preserved if they were not placed in his care and custody.” They added, as special reasons for his unfitness, that he was “possessed of a quarrelsome character and violent temper, and that he was addicted to the excessive use of intoxicating liquors.” There was a trial to the court upon the issues so tendered, and the writ was denied, from which finding and judgment of the court the petitioner appeals.
1. The petitioner contends that the court where the divorce suit was tried maintains jurisdiction of the parties for the purpose of changing the decree as to the custody of the children, and that they remain the wards
2. The respondents contend that the award of the custody of the children to the mother gave her control of them not only during her life, but invested her with a power to dispose of them at her death. This contention cannot be maintained. There was no finding that the father was unfit to have the custody of these children; and the award of such custody to the mother until the further order of the court was only a finding that, as between the father and mother, the interests of the chil
3. It is claimed on behalf of the respondents that the order appointing them guardians of the minor children was an adjudication of the father’s right to the custody of their persons. Whatever may be the effect of this order so far as the estate of the minor children is concerned, it would not of itself give the right of custody of the persons of the children against a parent who had no notice and whose rights were not adjudicated. The question of his competence and suitability would remain to be adjudicated. In re Thomsen, 1 Neb. (Unof.) 751.
4. Upon the question of the fitness of the father, the finding of the district court was that the petitioner could not “provide for said children or rear them in as proper and fitting a manner as can the respondents.” The oldest boy having been born in March, 1887, has attained his majority, and this controversy no longer concerns him. It is conceded that the respondents are so situated as to give excellent care to the boy Caryl, now ten years old, and no criticism is made of the manner in which he is being nurtured and educated, nor of the environment in which he is placed. In fact it is tacitly admitted that his present surroundings are better than his father is able to offer; but it is earnestly insisted that the disqualification which deprives a parent of the custody of his child must be of a positive, and not of a comparative character. Upon this question we can do no better than to quote from the opinion of Irvine, C., in the case of Norval v. Zinsmaster, 57 Neb. 158. He there says: “We are aware that this court has several times asserted that in such controversies as the present the order should. be made with sole reference to the- best interests of the child. But this has been broad language applied to
5. The respondents insist that the petitioner is an unsuitable and unfit person to have the care of this child, and that the evidence not only would have justified the district court in so finding, but that the same is of such a character as to sustain no other conclusion. It appears that at the time of the petitioner’s marriage with his wife, Anna, he was a clergyman of the Presbyterian church. He afterwards served for several years as pastor of the Campbell Park Presbyterian church in Chicago, and from there went to the People’s Institute, which at that time seems to have been the nucleus of a social settlement under the patronage of Bishop Fallows. This enterprise did not long sustain its benevolent character, and the petitioner in some way became the owner of the property in which it was carried on, and thereafter devoted the same to secular uses. The building contained a theater, a hotel, a dance hall, and several stores which
Upon the question of his intemperance, without citing the evidence at large, it fully sustains the charge that the petitioner became so addicted to the use of intoxicating liquors as to greatly shock and distress his friends who had known him while officiating as a clergyman; and, after making due allowance for the special aversion which such conduct in an ex-clergyman would inspire, we are constrained to say that it went so far that it would have compromised the character of one who had always been engaged in secular pursuits. The petitioner did not himself testify as a witness, but there is found in the record his answer to the bill of his wife, Adelaide, for a divorce on the ground of habitual drunkenness. Tn that answer, verified by him on the 29th day of October, 1906, he made the old plea that “he was tempted of the woman.” He says that before 'he associated with her he was personally and professionally opposed on principle to the use of intoxicating liquors; that after coming under her influence he indulged in their moderate use; that he never drank to the extent of being unfit to attend to business; and that, when he drank on rare occasions more liquor “than was wise, it was almost invariably under the sting of her abuse.” This answer, read in the light of the positive evidence of witnesses as to his drinking
During the time the children were in the custody of the mother he does not appear to have contributed to their maintenance, nor to have given them any parental attention. He was compelled to surrender their custody, and, the mother being able to support them,, the fact that he did not voluntarily assist her should not of itself be taken as evidence of a want of affection on his part; but there are many attentions which a loving father may and usually does render to children beyond his custody and control, and these appear to have been entirely lacking in this case, which indicates a slight degree of affection and a want of parental care for these children on the part of the petitioner. As we have already seen, the unfitness of the parent which deprives him of the absolute right of the custody of children must be positive, and not comparative; but this does not mean that the degree of unfitness may not be considered in connection with all the other circumstances of the case. And, so considering the present situation of the child, the father’s former indifference to him, his intemperate habits, and the unsettled state of his domestic affairs, we cannot say the district court erred in denying the writ prayed for.
As this conclusion is partially based upon the .petitioner’s intemperate habits and the disturbed state of his domestic atmosphere, both of which are susceptible of ainendmént and improvement, it is proper to say that the dismissal of the writ is not a bar to a future application of like character, should changed conditions justify a different conclusion.
We therefore recommend that the judgment of the district court be affirmed.
Affirmed.