Opinion
No. 29244.
June 14, 1955.
Harry A. Levi, Helaire F. Chenot, St. Louis, for petitioner.
Curt Vogel, Perryville, for respondents.
This is a petition for a writ of habeas corpus filed in this court by Virgie A. Palmer, natural mother of Terry Joe Richardet, against Mr. and Mrs. Vince Richardet, the present custodians, for the purpose of obtaining the custody of the child. Petitioner alleged that Terry Joe was born out of wedlock June 15, 1953; that on June 1, 1954 Loyd Richardet removed Terry Joe from petitioner's custody and placed the child in the custody of respondents, parents of Loyd Richardet, and that the latter have refused to surrender and do unlawfully retain custody of the child.
In their return respondents acknowledged that they have custody and control of Terry Joe and alleged that he was brought to their home on June 3, 1954 by their son Loyd "and has remained there at his request and under his supervision." They alleged the following new matter: that Loyd is the father of the child and has publicly acknowledged the relationship; that petitioner always acknowledged Loyd as the father of the child until sometime after June 3, 1954; and that the child was suffering from malnutrition when brought to their home. Respondents also raised the question of the fitness of petitioner to have custody of the child, alleging that petitioner "on many occasions prior to June 3, 1954 failed to care for said child, and has left said child unattended while she would visit taverns, or seek other means of personal enjoyment, wholly disregarding the welfare of said child, and on occasions struck and slapped said child."
In her answer petitioner denied the new matter set up in the return.
Findings of Fact
1. Virgie Weaver, age 37, and Loyd Richardet, age 39, met in the winter of 1951 at Johnnie's Buffet, a tavern on Jefferson Avenue in the City of St. Louis. They kept company for five months. From March, 1952 until June 3, 1954 they lived together as man and wife at various addresses in St. Louis, although they were never married. During that time they held themselves out as married people. Virgie was known in the neighborhood as Mrs. Richardet.
2. In September, 1952 Virgie became pregnant.
3. In addition to sexual contacts with Richardet during the period preceding her pregnancy Virgie engaged in sexual relations on an almost daily basis with one Vernon Hampton, a married man with five children. This took place in a rented room six blocks from Richardet's address. Richardet would go to work at 7:30 A.M. after which Virgie would go to Hampton's room about 8 A.M. and have intercourse with him. This went on for a number of months, including the period preceding her pregnancy.
4. Richardet worked at a box factory. He supported Virgie and the baby. For a year Virgie's 9 year old daughter by a previous marriage lived with Virgie and Richardet and was supported by him.
5. On June 15, 1953 Virgie gave birth to a male child in the room rented by Virgie and Richardet in a house on Park Avenue in St. Louis. Virgie named the child Terry Joe Richardet and signed her name "Virgie Richardet" on the birth certificate and gave the name of Loyd Vince Richardet as the name of the father of the child.
6. During the first year of the child's life Virgie did not properly care for him. She spent considerable time in various taverns, sometimes taking the baby into the taverns. At other times she would leave the baby at home, either with her 9 year old daughter or unattended. When the child was six or seven months old she whipped him, causing big whelps on the child's body. Medicine provided by Richardet for the child would not be administered. Virgie would not fix meals regularly for Richardet. Often he fixed his own breakfast and supper. She "wanted to drink all the time — always wanted to go out." They did go out and drink, and would get drunk.
7. In February, 1954 Richardet came home from work one day and found the child sick and unattended by its mother, at home with the 9 year old daughter. Richardet took Virgie, the baby and the 9 year old daughter to Perryville, Missouri, where Virgie, the 9 year old daughter and baby lived for about three months. Respondents, Mr. and Mrs. Vince Richardet, live in Perryville. Loyd Richardet visited with them on weekends. During this period Virgie and Loyd posed as a married couple, and Virgie went by the name of Mrs. Richardet. They lived in a small house which was provided rent free by respondents. During that time Virgie left Terry Joe with Mr. Mrs. Vince Richardet for three weeks. Finally Virgie sold the furniture, banked the money in her own name, took the child and went back to St. Louis.
8. On June 3, 1954 Loyd Richardet returned from work at 5:20 P.M. and found Terry Joe, then one year old, in the house by himself. He cleaned the baby, fixed supper and then went to Vicky's Bar, a tavern on Lafayette Avenue frequented by Virgie. He had the child with him, intending to take the child on to Perryville. At Vicky's Bar he found Virgie, drinking and in the company of one Will Palmer, the man Virgie later married. Asked what she wanted to do with the child Virgie told Richardet that she did not want to take care of him; that he should take the child to Richardet's parents in Perryville; that "she couldn't fool away her time or life fooling around with a baby." Richardet borrowed money from a friend, made the trip to Perryville and placed the child with respondents.
9. When respondents received the child he was in poor health. He would not eat. He was "puny-like," in a rundown condition and underweight. He did not sleep well.
10. Approximately three months later, in September, 1954, Virgie went to Perryville for the purpose of seeing her child. She was permitted to visit him on that occasion, although she did not stay long at the home of the Richardets. That is the only time that she has made an effort to visit him since June 3, 1954.
11. The testimony of Virgie that Vince Richardet threatened that if she came on his premises she would not "walk off;" that Mrs. Vince Richardet locked the door and would not let her come into the home; and that Loyd Richardet threatened Virgie's life and that of Will Palmer if she tried to see or recover the baby, is untrue.
12. The marital history of the parties is as follows:
Virgie Weaver Palmer:
(1) Virgie married Harold Cole in 1934 in Bloomfield, Missouri. Four children were born of that marriage. Two of the children were girls, now aged 23 and 19 years, respectively. Both of them are married, have one child and live in St. Louis. One boy, now 14, lives with his father in Dexter, Missouri. The fourth child, a girl now 12, presently lives with Virgie's sister in St. Louis. On January 7, 1943 Harold Cole procured a divorce from Virgie in the Circuit Court of Stoddard County, Missouri, and was awarded the custody of the three oldest children, then aged 10, 8 and 2 years. For some unknown reason the youngest child, then three months old, was not referred to in the decree.
(2) Virgie married Ben Harelson on May 26, 1946 in Piggott, Arkansas. One child, Linda Sue Harelson, was born of this marriage on March 26, 1951. On June 18, 1952 Ben Harelson procured a divorce from Virgie in the Circuit Court of the City of St. Louis, his petition alleging among other things that Virgie openly associated with other men and frequented taverns in the company of other men. The custody of Linda Sue, then 14 months of age, was awarded to Ben Harelson. Defendant's cross bill was dismissed.
(3) Virgie married Wilmer Palmer on October 15, 1954 after a courtship of two or three months.
Wilmer Palmer:
(1) Prior to the marriage on October 15, 1954 to Virgie, Wilmer Palmer had been married and divorced twice, the last time about 20 years ago. He has no children by either of the previous marriages.
Loyd Richardet:
(1) Married Maxine Cheevers on March 25, 1945 in San Antonio, Texas. Loyd Richardet was granted a divorce from Maxine on February 13, 1952 by the Circuit Court of the City of St. Louis on charges of desertion.
(2) Married Pearl Richardson on February 5, 1955 in St. Louis, Missouri.
Pearl Richardson Richardet:
(1) Married Kenneth T. Richardson. Of this marriage two children were born, Lillian Mary and Peggy Jean, now aged 7 and 8 years. Pearl Richardson was divorced from Kenneth T. Richardson on April 24, 1951, and was awarded the custody of the two children.
(2) Married Loyd Richardet February 5, 1955.
13. Virgie and Wilmer Palmer live at 4819 Lafayette Avenue in the City of St. Louis in a 17-room apartment house owned by Wilmer Palmer. The property as a whole is clean and in good repair. Income from the tenants averages $110 per week. The Palmers live in a 4-room apartment which consists of a living room, dining room, bedroom and kitchen. No children live in the apartment house. Palmer, 54 years of age, is a barber who operates his own shop at 2640 Lafayette Avenue. He owned a tavern for three years but disposed of it two years ago, and has no intention of going back into the tavern business. He desires to have the child in his home, never having had a child, and is willing to adopt Terry Joe. Virgie and Wilmer "get along very nice," according to Wilmer.
14. Pearl and Loyd Richardet live in three rooms at 2347 Park Avenue in the City of St. Louis. Both of them belong to the same church. The two children of Pearl by a previous marriage, aged 7 and 8, live with them. At the present time Pearl is employed. If Terry Joe is brought into the home she intends to quit her employment. In that event Richardet intends to rent larger living quarters. Richardet testified to his affection for Terry Joe and his desire to have him in his own home. He does not want the child to be with Virgie for he does not think that she would "take care of the child decently." Pearl is willing to take Terry Joe into the home. Richardet grosses $64 and nets $58 per week in salary as a machine operator.
15. Mr. Mrs. Vince Richardet live in a 7-room frame residence in Perryville, Missouri. Mr. Richardet, 64 years of age, is a retired farmer. Mrs. Richardet, 66 years of age, is a housewife. They had four children, three boys and a girl. The sons are married. The daughter, Dorothy, aged 22, is unmarried. She stays at home and helps to care for Terry Joe. Mr. Mrs. Vince Richardet are in good health. They are financially able to take care of Terry Joe. Loyd Richardet has regularly contributed $10 a week for the support of the child. The residence in which they live is paid for, and they have about $50 a month rental income from two small houses in Perryville. In this home Terry Joe has received good care, medical attention, clothing and love. He is regarded as, and treated like, one of the family. These are religious people who attend church fairly regularly. The child gained five pounds in three months while in their care and now is "in good shape." He eats well and is a healthy, well-behaved youngster. He is kept neat and clean, is provided with toys and gives evidence of being happy in this environment. He sits on Mrs. Vince Richardet's lap and shows a great deal of affection for her. Both respondents and Dorothy demonstrate affection for the child. The home is clean and comfortably but inexpensively furnished. Terry Joe sleeps in a large size baby bed in the same room with respondents. Mrs. Vince Richardet testified "I may be greyheaded but I can sure take care of kids." These people enjoy a good reputation for being law-abiding, respectable people in the community in which they live.
16. Loyd Richardet is addicted to the use of intoxicating liquor. In the past it has been his habit to drink heavily on weekends. He freely admitted heavy drinking and occasional intoxication.
17. Virgie's testimony is full of discrepancies. She testified that her husband is 42 years of age whereas in fact he is 54. She testified that her husband attended and graduated from high school whereas in fact he has an eighth grade education. She at first testified that she did not inform the doctor as to the name of the father of Terry Joe, stated that the doctor did not ask that question and inferred that a neighbor, a Mrs. Byrd, gave the doctor the information appearing on the birth certificate. Later it developed that Mrs. Byrd was not present when the questions were asked by the doctor and Virgie admitted that she did give the doctor the information found on the birth certificate. She at first testified that she went to Perryville to see the baby two weeks after June 3, 1954. Afterward she admitted that it was three months later, in September, when she made the trip. She testified that she did not sell the furniture, whereas in fact she sold it and banked the money in her own name. She testified that in addition to Terry Joe she has three other children. She listed only one other child on the birth certificate. In point of fact she has five other children. There was other direct evidence that Virgie does not tell the truth.
18. After Terry Joe was placed with respondents on June 3, 1954 Virgie made only one trip from St. Louis to Perryville to see the child. That was in September, 1954. At no time has she written to respondents inquiring about the child. When notified near the Christmas Season, 1954 that the child was seriously ill she did not come to Perryville or write concerning his condition. She has sent him no clothing, food, toys or Christmas gifts. While living in Perryville she mistreated him. She would leave him in bed too long, unattended. As a consequence he gnawed the wooden railing all around his bed "just like a little dog would have done." Virgie has not had the child baptized.
19. Although Virgie's older children by a former marriage are nice appearing, they were not raised by her, but by their father. There was evidence that they were "throwed here and yonder." Virgie, however, has kept in touch with them and periodically has had the now 12 year old daughter in her own custody, although at the present time the child is living with her aunt.
20. At the time of birth of Terry Joe Richardet and at all times up to June 3, 1954 Virgie recognized Loyd Richardet as the father of the child. Since that date, however, Virgie has maintained that Vernon Hampton, and not Loyd Richardet, is the father.
21. Loyd Richardet has at all times recognized Terry Joe as his own son. He did not know of the affair between Virgie and Vernon Hampton while it was going on, but upon learning of it continued to maintain that Terry Joe is his child.
22. The evidence of actual paternity of Terry Joe Richardet is too inconclusive for the Commissioner to make a finding of fact with reference thereto.
Declarations of Law
I.
In a habeas corpus case involving the custody of a minor child the welfare of the child is the superior objective to which all other considerations must yield. Ex parte Ferone, Mo.App., 267 S.W.2d 695; Section 452.120 RSMo 1949, V.A.M.S.
II.
Parents as the natural guardians of their minor child are presumed to be fit and qualified to assume the custody of their children and the natural right of the parent should never be denied unless it is made manifest to the court that he or she for some strong and cogent reason is unfit or incompetent to take charge of the child or unless the welfare of the child himself for some special or extraordinary reason demands a different disposition at the hands of the court. In re Cole, Mo.App., 274 S.W.2d 601; State ex rel. White v. Swink, Mo.App., 256 S.W.2d 825; Cox v. Carapella, Mo.App., 246 S.W.2d 513; Ex parte De Castro, 238 Mo.App. 1011, 190 S.W.2d 949, and cases cited 190 S.W.2d loc. cit. 959.
III.
The foregoing rule of law applies to the natural parents of an illegitimate child. Armstrong v. Price, Mo.App., 292 S.W. 447; In re Penny, 194 Mo.App. 698, 189 S.W. 1192; 10 C.J.S., Bastards, § 17, p. 79.
IV.
All else being equal a child of tender years will be given to the mother as against the father. Wilson v. Wilson, Mo.App., 260 S.W.2d 770; Tomlinson v. French Institute of Notre Dame De Sion, 232 Mo.App. 597, 109 S.W.2d 73; Abel v. Ingram, 223 Mo.App. 1087, 24 S.W.2d 1048.
V.
The mother, as the natural guardian, primarily has the right to the custody, care and control of her illegitimate child, which right in the absence of an express statutory provision to the contrary, is superior to the right of the putative father or any other person, providing she is a fit and suitable person to act as custodian. State v. White, 363 Mo. 83, 248 S.W.2d 841, loc. cit. 843; In re Nofsinger, 25 Mo. App. 116; In re Penny, supra; Armstrong v. Price, supra; 10 C.J.S., Bastards, § 17, p. 80; Pierce v. Jeffries, 103 W.Va. 410, 137 S.E. 651, 51 A.L.R. 1507.
VI.
The custody of a child will not be awarded to its natural parent where that parent is not a fit and competent person to act as custodian. In re Cole, supra; Ex parte Kaufman, Mo.App., 262 S.W.2d 56; Daugherty v. Nelson, Mo.App., 234 S.W.2d 353.
VII.
Respondents have the burden of proof on the issue of the fitness of petitioner to act as custodian, having raised the question as an affirmative defense. In re Cole, supra; Cox v. Carapella, supra; Williams v. Williams, 240 Mo.App. 336, 205 S.W.2d 949.
VIII.
In a habeas corpus proceeding between a natural parent seeking to obtain custody of his child and persons who hold the child without the sanction of any judicial decree, the fitness, competence and suitability of the parent to take charge of the child, when challenged, depends upon whether petitioner is guilty of wilful abandonment and wilful neglect to provide the child with proper care and maintenance; whether the child, if placed in the custody of the natural parent, would become homeless, or dependent upon the public for support or reduced to a state of habitual vagrancy or mendacity, or ill-treated, or that his life, health, or morals would be endangered by continued cruel treatment, neglect, immorality, gross misconduct or depravity upon the part of the petitioner. Cox v. Carapella, supra.
IX.
While the natural parent's right to the custody of her child must be determined with respect to present, existing conditions, evidence of past conditions is admissible to the extent that it clarifies and casts light on existing conditions. In re Cole, supra, 274 S.W.2d loc. cit. 610; Cox v. Carapella, supra; Ex parte De Castro, supra.
Conclusions
The best interests of Terry Joe Richardet at the present time and in the foreseeable future require that he be remanded to the custody of respondents. The unfitness of petitioner to act as custodian of the child at this time has been shown to the satisfaction of the Commissioner. The life pattern of Virgie Palmer until a very recent date has been that of instability, irresponsibility and immorality. Her marriages to Cole and Harelson failed because of her marital misconduct. In each case the husband was adjudged by the court to be the innocent and injured party. Her irresponsibility as a mother and her incapacity as the custodian of her other five children are attested by the adjudications of two tribunals awarding their custody to their fathers, and not to this petitioner, even though the children were quite young. At the times of these adjudications the childrens' ages were 10, 8, 2 and 1 years and three months, respectively. Her immorality she frankly confesses. For more than two years she maintained an illicit relationship with a man to whom she was not married, the couple openly posing as man and wife. For the first three months of this affair she was living in a state of adultery. During the progress of this sordid affair she indulged in a secret promiscuity with another man who was married and the father of five children. She willingly introduced her 9 year old daughter into this immoral situation, permitting her to live at the same address with her and Richardet for more than a year. After Terry Joe arrived she wilfully neglected, physically abused and finally wilfully abandoned him. The first evidence of any natural interest in the child was manifested about the time she married her present husband. To petitioner's credit it must be said that she has contracted what appears to be a favorable marriage to a man of some material means who is financially able to provide petitioner with a comfortable living. That marriage, contracted by Palmer with a knowledge of petitioner's background, may succeed where previous marriages have failed. Furthermore, there is no evidence of any marital misconduct on the part of petitioner between October 14, 1954, the date of her marriage, and February 14, 1955, the date of the hearing before your Commissioner. Notwithstanding the favorable aspects of petitioner's case at the present moment, her record prior to her present marriage raises grave doubts as to her ability or the sincerity of her desire to reform and rehabilitate herself as a wife and mother. Sufficient time has not yet elapsed to evaluate adequately the nature and permanence of her rehabilitation. To entrust her with this child now in the absence of strong evidence of repentance and rehabilitation would be to make an unwarranted experiment with the future of the child who, to all appearances, is receiving proper and wholesome care and attention in his present living conditions. On the evidence the Commissioner concludes that if placed with petitioner Virgie Palmer, the child would be ill-treated and his life, health and morals would be endangered by her continued cruel treatment, neglect and gross misconduct.
Nor would the placement of the child in the home of Loyd Richardet at this time be advisable in view of the short duration of the marriage of Loyd and Pearl, having in mind the failure of the previous marriages of both Mr. Mrs. Loyd Richardet and his proven addiction to intoxicants.
In the home of respondents the child is healthy and happy. He is developing in a normal manner in an atmosphere of love and understanding. The home is stable. His present custodians are experienced in raising children. They are church-going people who enjoy a good reputation in the community in which they live. They are financially able to support and maintain the child. The only adverse factor is the advanced age of respondents. The disadvantage to the child presented by this factor, however, is not preclusive of respondents' claims, in view of the greater risk and hazard involved in placing the child in the home of petitioner or that of Loyd Richardet at this time and under the existing circumstances.
Recommendations
1. That the petition be denied and that the custody of Terry Joe Richardet be awarded to respondents Mr. Mrs. Vince Richardet, to whom he should be remanded, reserving to petitioner Virgie Palmer the privilege of visiting with the child from the hour of 12 o'clock noon until the hour of 7 o'clock P.M. on the first and third Saturdays of each month at the home of respondents in Perryville, Missouri, or at such other places in Perry County, Missouri as respondents may determine, provided that such visits shall in no event take place at times which will interfere with the education or health of the child.
2. That the order further provide that at no time shall petitioner Virgie Palmer take the child outside the confines of Perry County, Missouri without the written consent of respondents, and that at no time shall she take him into any saloon or tavern.
On February 14, 1955 the court, of its own motion and by an order duly entered of record, referred this case to Commissioner Norwin D. Houser to take evidence in the case, with full power and authority to swear witnesses and thereafter to report the evidence to the court with his Findings of Fact and Declarations of Law, together with his Recommendations. Pursuant to such order a hearing was had and concluded, the testimony of numerous witnesses was transcribed and the Commissioner in due course filed his report. Thereafter, petitioner filed her written exceptions, which were argued before the entire court.
After reading the transcript of the testimony, examining the exhibits filed therewith, and carefully considering the Commissioner's Findings of Fact, Declarations of Law, Conclusions and Recommendations, together with petitioner's exceptions and the arguments of counsel in connection therewith, we are convinced that the Commissioner reached the correct and proper conclusion in the case, and we therefore adopt his report as the opinion of the court. It is, accordingly, ordered that the petition be denied and that the custody of Terry Joe Richardet be awarded to respondents Mr. Mrs. Vince Richardet, to whom he should be remanded, reserving to petitioner Virgie Palmer the privilege of visiting with the child from the hour of 12 o'clock noon until the hour of 7 o'clock P.M. on the first and third Saturdays of each month at the home of respondents in Perryville, Missouri, or at such other places in Perry County, Missouri as respondents may determine, provided that such visits shall in no event take place at times which will interfere with the education or health of the child; and that at no time shall petitioner Virgie Palmer take the child outside the confines of Perry County, Missouri without the written consent of respondents, and that at no time shall she take him into any saloon or tavern.
ANDERSON, P. J., MATTHES, J., and WALTER E. BAILEY, Special Judge, concur.