57 W. Va. 520 | W. Va. | 1905
Charles S. Dawson and Clara B. Fearnow were married on the eighth'of April, 1896, in Morgan county, and lived together as husband and wife in said county until the 14th day of May, 1898, when the wife left their home and went to the home of her parents, taking with her their only child, at that time, Bay, who was born on the 5th day of December, 1896. On the 20th of October, 1898, another child was born to them, named Agnes. She remained away from home and at her parent’s home ever after the time she. left. On the 31st day of July, 1898, Charles S. Dawson went to the home of his wife’s parents and took the child and started away with it before his presence was discovered. He wras followed some distance by the mother who not being very strong was unable to overtake him and he succeeded in getting away with it. On the first day of August she filed her petition to the judge of the circuit court of Morgan county, praying for a writ of habeas corpus, which was granted. In response to the writ the defendant made his return and brought the child into court and on the 17 th day of August, 1898, the court having fully heard all the evidence offered on both sides took time to ■consider and in the meantime placed the child in the custody of the petitioner, Clara B. Dawson, bond having been given for the safe keeping and production of the child in court when the same should be required. At the January term of 1899, the court awarded the care and custody of the child to the petitioner, Clara B. Dawson, until the further order
The defendant appeared and filed an answer in the nature of a crossbill praying affirmative relief. The answer denied all the allegations of the bill charging her with misconduct and alleging that she was obliged to leave plaintiff because of cruel and inhuman conduct towards her; denied that plaintiff had been true and kind to her and had always treated her with consideration, providing well for her comfort and
A large number of depositions were taken and filed by both parties, and the cause was heard on the 20th day of August, 1902, on the papers and proceedings theretofore read and had and on the answer and cross bill of defendant, and general replication thereto, and on the depositions, when the court found that defendant was not entitled to the relief
From which decrees the defendant appealed-, and says that the court erred in not finding that the allegations of the defendant’s answer, in the nature of a cross bill were sustained by the evidence, and should have granted the relief there prayed for, and should not have found that the allegations of plaintiff’s bill, as to desertion and abandonment without sufficient cause, charged against the defendant were sustained by the evidence, and should not have entered the decree in his favor for absolute divorce, and should not, on a consideration of the evidence, documentary and oral, in the record have awarded the custodjr of the infant child, Kay, to the plaintiff, and that the custody of Naj'- having been tried and de
The plaintiff filed no answer or special replication to the answer of the defendant in the nature of a cross bill but only entered a general replication to the answer. While, as contended by the appellant’s counsel that the allegations of the cross bill are to be taken as admitted to be true by the appellee, under the statute the appellee must prove her allegations as far as the same are made for the purposes of a divorce, as the case for divorce has to be made by evidence and independent of the admissions of the defendant. The evidence in the case as to the cruelty and inhuman treatment by the appellee of appellant is very conflicting, while the evidence of the appellant supports the allegations of her bill, the defendant squarely denies the facts aud there is but little if any oral evidence aside from ’her own, of the treatment of which she complains. It is true the cruelty and brutal treatment complained of by her is mostly of such a character as other parties could have no knowledge of it. The most damaging-evidence against the appellee, on the question of cruel and inhuman treatment, is the fact of his receipt of the letter addressed by Dr. Rau, who was called to treat the appellant after she was overcome by the shock occasioned by the act of the appellee in stealthity taking possession of the child, Ray, when appellant was about seven months -advanced in pregnancy, which letter called appellant’s attention to the fact that both the life of his wife and that of his unborn child were placed in jeopardy by his said act, and that the return of the child was the only remedy the doctor knew of to relieve them from such danger. To this he paid no heed.
After a careful reading of all the evidence in the case I am not inclined to disturb the decree of the circuit court in so far as the divorce of the parties is concerned; as to the care and custody of the children the evidence is conclusive that the circumstances of either of the parties are such as to render them capable of the proper care and support of either or both of the children, the parents of both the appellant and the ap-pellee show themselves willing and able to care for and support the children. The mother, the appellant, evidently feels and manifests a greater solicitude for the welfare of the children than the appellee, who says in his testimony, which appears to have been taken in November, 1901, that he had been to see his son, under the -privilege granted him by the order of the court in the habeas corpus proceeding, quite three years before, four times in all, although the permission was that he could visit him any day he desired to see him, between 9 A. M. and 8 P. M., and it is further shown that he never inquired for, nor asked to see the younger child. It is true he claims that he was not cordially received or well treated on such visits, but this is contradicted by all the members of the household who were examined as witnesses, besides some outside parties who happened there at the time of some of his visits.
It is contended by counsel for appellant that the judgment of the court in the habeas corpus proceeding of < three years before was res judicata and could only be reviewed in that same proceeding by writ of error or application for another writ, if the circumstances had so changed as to authorize it. There can be no question as to the jurisdiction of a court of law in habeas corpus proceeding to try and adjudge all ques
Appellee assigns as cross error the action of the court in decreeing the custody of his infant daughter, Agnes, to the appellant. In his bill he relies solely upon his legal rights at common law. After simply referring in his bill to the habeas corpus proceedings in merely an incidental manner and alleging that he is clearly entitled to the care and custody of his child, Ray, and that there was no valid or just reason or cause why he should not be restored to his custody, prays “That said children, Ray Dawson and Agnes Dawson, be given into the care and custody of their said father, the said plaintiff.” In support of this cross assignment of error it is argued by counsel for appellee that at the date of the decree awarding the child, Agnes, to her mother, she was four years of age and there was not a particle of evidence in the record to show that she was in need of her mother’s care; that her father had the legal right to her custody and control, and that his right thereto was not to be defeated by sentimental considerations and subjected to any compromise with his wife, and cite, Carr v. Carr, 22 Grat. 168, and Latham v. Latham, 30 Id. 329. Appellee gives no other reason that the said 'child or either of the children should be placed in his custody except the cold legal fact that he was their father and entitled underjthe common law to such custody, and as said by
The court did not err in. giving the custody of the younger child to the appellant.
For the reasons herein stated the decree of the circuit court of Morgan county is reversed, only in so far as it gives to the appellee care and custody of the child, Bay Dawson, and in all other respects the decree is affirmed.
Reversed in part. Affirmed m part.