34 So. 2d 460 | Ala. | 1948
This case involves the very delicate and difficult question as to the custody of a child, a girl now nine years of age. In June, 1944, on a bill by the husband J. P. Hooie seeking divorce from his wife Carrie *365 Daphene Hooie on the ground of adultery, the judge of the Law and Equity Court of Lauderdale County, exercising equity jurisdiction, granted a decree of divorce and awarded to the father the custody of the child. The wife was then living in Georgia and the decree was rendered on a decree pro confesso and testimony in support of the averments of the bill. But the husband, J. P. Hooie, had no place of his own or home for the child and since that date, by his arrangement, this girl has been in the home of the father's brother, John A. Hooie, Jr., at Rogersville, in Lauderdale county.
In April, 1947, the mother, now Mrs. Daphene Roebuck, wife of Ralph Roebuck of Jasper, Florida, filed a petition in said Law and Equity Court seeking the custody of her daughter Gwendolyn Faye Hooie, and that the decree of June, 1944, be so modified in this respect. We have stated the mother is the wife of Ralph Roebuck for the reason the proof is undisputed this couple have since December 1945 consummated a common law marriage, fully recognized by the laws of Florida. Orr v. State,
The evidence clearly discloses Mrs. Roebuck's love for this child and her anxiety to have her live with them, and Ralph's entire willingness to assume such responsibility. Mrs. Roebuck's testimony is without dispute that the father has not spent more than thirty days with the daughter since the decree of divorce. The father's business requires his presence elsewhere and he now resides in Columbus, Georgia. The petition here avers that John A. Hooie, Jr., is addicted to the habitual use of intoxicating beverages and that his home is not a suitable one for the child. The answer makes no denial concerning the charge of habitual use of intoxicants.
Upon conclusion of petitioner's proof, defendants' motion to exclude all the evidence offered, was sustained and the petition dismissed. Though this practice has been criticized (Johnson v. Shook Fletcher Supply Co.,
It is evident the chancellor acted upon the theory there had been shown no changed condition since the rendition of the decree of June, 1944.
So far as petitioner's previous misconduct, that is a matter foreclosed by the divorce decree, and no occasion has here been shown for a re-opening of that matter. White v. White,
But under the proof before the court there has been a changed condition. Whatever may be said concerning petitioner when the decree was rendered in *366
June, 1944, the undisputed evidence before the court disclosed that she and her present husband hold an excellent reputation in their home town, and petitioner is now prepared to properly care for her child. In addition the petition alleged, and we find no denial, that John A. Hooie, Jr., is a habitual user of alcoholic beverages and his present home is not a suitable place in which to rear the child. Our authorities recognize that changed conditions, of which some of our cases speak, include matter discovered and not disclosed when the original decree was entered. This was pointed out in Greene v. Greene,
So far as appears from this record the contest is between the mother on the one hand and John A. Hooie, Jr., and wife on the other, as the father of the child is rarely present. He has of necessity committed to his brother and wife the care, custody and control of his daughter. Of course all the authorities are to the effect that the welfare of the child is the question of paramount importance, and our cases further disclose as between the mother and strangers the former is to be preferred, upon the theory, as often expressed "mothering of a young child is one of its rights. None but the real mother can meet this high duty in full measure." Goldman v. Hicks,
Speaking to the question of a choice between father and mother in the case Anonymous,
It is clear from what was said by the chancellor that he considers the present home of John A. Hooie, Jr., the permanent home and that as no evidence was offered that it was not a suitable and proper place for the child petitioner was entitled to no relief. This overlooks the superior claim of the parent, the mother, over that of third persons, and, also, overlooks the charge of habitual use of intoxicating liquors by John A. Hooie Jr., which was not denied. Nor does it give any weight whatever to the charge of the petition, undenied, that the daughter, now nine years of age, desires to live with petitioner. Nor does it give weight to the irreproachable reputation petitioner and her husband have established in their present home in Florida.
Upon consideration of the entire cause we are of the opinion the claim of this mother for the custody of the child should prevail. The fact that the chancellor saw and heard the witnesses is not here. of material moment. It is our view he has erred, not so much in his finding of facts, as in the application of sound principles. of law thereto. Chandler v. Whatley, supra.
We were first impressed that the cause should be here finally determined and the reversal and remandment should be with directions for a final order. But upon reconsideration on application for rehearing we have concluded that by an error of law full trial of the cause was forestalled and that we should not here enter a final order, but reverse the decree and remand the case to the court below for consideration upon a full hearing. *367
The judgment here entered will be so modified and the application for rehearing overruled.
Reversed and remanded.
FOSTER, LAWSON and STAKELY, JJ., concur.