Warner v. Warner, 24 F.2d 609

24 F.2d 609 | D.C. Cir. | 1928

MARTIN, Chief Justice.

Appeal from a decree in a divorce ease awarding permanent custody of the minor child of the parties to the wife, notwithstanding that the divorce was granted to the husband.

The appellee, Natalie A. Warner, as plaintiff below, filed a bill of complaint against her husband, Paul C. Warner, the appellant, charging him with drunkenness, cruelty, and failure to provide, and praying for a divorce a mensa et thoro from him and for the custody of their minor child. The husband answered, denying the charges brought against him in the bill, and in a cross-bill charged bis wife with desertion, and prayed for a limited divorce from her, and for the custody of their child. The wife filed a reply to the cross-bill, denying the charge of desertion; and these issues were heard by the court upon the evidence.

The court found against the charges made by the wife in her bill of complaint, and dismissed the bill. At the same time the court sustained the charge of desertion set out in the cross-bill, and granted the husband a limited divorce as prayed for therein. As part of this decree the court awarded the permanent custody of the minor child to the wife, hut provided that the husband should have 'the custody of the child for certain parts of each week. The court also decreed that the husband should pay a specified monthly sum to the wife for the support of the child. The appellant appeals from the decree in so far as it relates to the custody of the child, and contends (a) that the lower court was without jurisdiction to award the custody of the child to the wife after dismissing her bill of complaint; and (b) that, if the decree was within the jurisdiction of the lower court, it was nevertheless an abuse of discretion, and should be reversed.

In our opinion the decree was within the court’s jurisdiction. After the dismissal of the wife’s bill the issue made, by tbe husband’s cross-bill and the reply thereto was still pending, and the court was authorized to hear and determine it in the same manner as if made by an original bill and answer. The prayer of the husband for divorce was still before the court, and, when the divorce was granted, the court was bound to provide for the custody of the infant child. The ease differs, therefore, from one in which no divorce at all is granted, such as Towson v. Towson, 49 App. D. C. 45, 258 F. 517. In Wells v. Wells, 11 App. D. C. 392, it was held by this court that, where a cross-bill is answered, it may be retained and made the basis of a decree, although the original bill is dismissed. In that case, as in this, the lower court dismissed the wife’s bill, and granted a divorce to the husband upon bis cross-bill, but nevertheless awarded the custody of the minor child of the parties to the wife, and the decree was affirmed by this court.

In our opinion, furthermore, the record does not sustain the charge of an abuse of discretion by the lower court in awarding the custody of the child to its mother. The parties were married in the year 1920; they had but one child, a girl bom October 11, 1922, who is the subject of this controversy. She was about 4 years old at the time of the trial. Prior to the marriage the mother had earned her living as a nurse. No charge of infidelity or immorality is made against her, although it is testified that at times, when quarreling with her husband, she used vile and obscene language toward him. There is no testimony, however, that she neglected the child or mistreated it in any manner. The father is an officer in the United States Navy, and is connected with the Air Craft Service. It does not appear that either party has relatives living within this jurisdiction able to assist in caring for the child. The lower court saw the parties and heard the testimony, and decided that it was best to leave the child with •its mother. We cannot say that this decision was mistaken, much less that it was an abuse of discretion. A very large discretion is intrusted to the trial court in such a matter, and moreover the cause will remain open below for any further orders found to be proper in respect to the child’s custody) Section 978, D. C. Code.

The present subject is well covered by the decision written by Chief Justice Alvey in Wells v. Wells, supra, reading in part as follows, to wit:

“There can be no doubt or question of the power and jurisdiction of the court below to pass the parts of the decree appealed from. In all such cases, where there has been a decree dissolving the marriage absolutely or only partially,’ the courts, looking principally to the welfare and happiness of the children, will award their care and custody to the one party or the other as will best promote their interest and general welfare. Amd acting on that principle, no certain fixed rule for the government of the courts in all cases can be laid down, other than this, that the best interest of the children must be consulted as paramount. It has been repeatedly declared in such cases, that the courts do not act to enforce the rights of either parent, but to protect the interest and general welfare of the children. 2 Bish. Mar. & Div. see. 532 and cases cited; Barrere v. Barrere, 4 Johns. Ch. 187; Goodrich v. Goodrich, 44 Ala. 670; Prather v. Prather, 4 Desaus. [S. C.] 33, 44. Indeed, the entire matter of the award of the custody of the child or children, and their maintenance, in such case as the present, is one largely, and it may be said almost exclusively, of judicial discretion, and that discretion is never reviewed by an appellate court, except when such discretion has been manifestly abused. Waring v. Waring [100] N. Y. 570 [3 N. E. 289]; Graft v. Graft, 76 Ind. 136; Cowes v. Cowes, 8 Ill. 435, 440 [44 Am. Dec. 708].”

It is not necessary for us to pass upon the interlocutory motion filed by appellant in this court, charging appellee with violation of the lower court’s orders permitting appellant to have the child at stated periods, for the case will be remanded to the lower court for sueh further hearing and orders as may be found proper, in the exercise of its continuing jurisdiction over the child’s custody.

The decree is affirmed, with costs, and the cause is remanded as aforesaid.