Opinion
No. 35362.
Filed April 5, 1963.
1. Habeas Corpus: Parent and Child. Where the custody of a minor child is involved in a habeas corpus action the custody of the child is to be determined by the best interests of the child, with due regard for the superior rights of a fit, proper, and suitable parent. 2. Parent and Child. The courts may not properly deprive a parent of the custody of a minor child unless it is affirmatively shown that such parent is unfit to perform the duties imposed by the relationship, or has forfeited that right. 3. ___. The right of a parent to the custody of his minor child is not lightly to be set aside in favor of more distant relatives or unrelated parties, and the courts may not deprive a parent of such custody unless he is shown to be unfit or to have forfeited his superior right to such custody.
Appeal from the district court for Cass County: JOHN M. DIERKS, Judge. Affirmed.
Francis M. Casey, Thomas Conis, and Guy C. Chambers, for appellants.
Richard J. Spethman and Gross, Welch, Vinardi, Kauffman, Schatz MacKenzie, for appellee.
Heard before WHITE, C.J., CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH, and BROWER, JJ.
This is a suit in habeas corpus brought by Franklyn H. Raymond, the father of Lin Dee Raymond, against Albert A. Cotner and Edna L. Cotner, the maternal grandparents of the child, to obtain the custody of the child. The trial court awarded the custody of Lin Dee Raymond to her father and the grandparents have appealed.
The evidence shows that plaintiff and Charlotte Cotner were married on October 23, 1945. On December 5, 1950, a child, Lin Dee Raymond, was born to this union. On March 12, 1952, a decree of divorce was granted to Charlotte Raymond by the terms of which she was granted the custody of Lin Dee Raymond, then approximately 15 months of age. The right of visitation at reasonable times and places was granted to the father. The decree also awarded child support to the mother in the amount of $40 per month, payable $10 per week.
At the time of the separation of the parties, which occurred shortly after the birth of the child, they resided in Pacific Junction, Iowa. After separating from the plaintiff, Charlotte Raymond returned to the home of her parents near Plattsmouth, Nebraska, where she and the child resided until Charlotte's death on November 11, 1961. Immediately following the death of Charlotte Raymond plaintiff demanded the custody of Lin Dee Raymond, which was refused by the defendants. On March 23, 1962, this habeas corpus action was filed.
The evidence shows that plaintiff is 37 years of age. He was born in Pacific Junction, Iowa, and has lived there most of his life. He was graduated from high school, which is the extent of his formal education. He is presently employed as a stationary engineer by a contracting firm engaged in the construction of missile bases at a wage of $450 per month. He owns his home in Pacific Junction, which he purchased in 1957 for $3,500, all of which has been paid. The home is a two-story frame house, having 10 rooms, four of which are bedrooms. It is equipped with a furnace and a private water and sewerage system.
On May 22, 1953, plaintiff was married to Marcella Cuhel, who has a 12-year-old daughter by a previous marriage. This daughter of Marcella's was adopted by the plaintiff and lives in the family home. Two children were born of the marriage, Larry age 6 and John age 8 years, who also live in the home. Marcella is 33 years of age and testified that she will care for Lin Dee and give her the same care and affection as the other children. She testified that plaintiff is a good husband and father, who provides well for his family. There is evidence that Marcella is neat and clean and keeps the home in good order. The children in the home are well cared for. They attend school and Sunday School regularly. The home is described by third persons as a good Christian home.
The evidence shows that plaintiff has paid child support for Lin Dee as it became due, as required by the divorce decree. Plaintiff testified that he saw Lin Dee three or four times a year when she was very small. He has not seen her in the last 9 or 10 years because, as he says, his former wife thought it would be best that he not do so. The evidence shows that his parents visited Lin Dee at the home of her maternal grandparents on the average of once a month, and that he was continuously informed by them concerning the welfare of the child.
The defendants, whom we shall refer to as the Cotners, reside on a farm 2 miles west of Plattsmouth, Nebraska. They rent out the farm land and live in the farm home. The farm house is about 50 years old, but is in good condition. It is an eight-room, frame house which is equipped with lights and an oil burner for heat. There are no water or sewerage facilities in the house. He owns the farm, which is wholly paid for. The evidence indicates that the home is clean and well kept. The home is described by third persons as a good Christian home.
The evidence shows that Mr. Cotner is 69 years of age and is generally in good health for a man of his years. He takes Lin Dee to and from school morning, noon, and evening. He testified to his intention to make a will in favor of Lin Dee. Mrs. Cotner is 67 years of age and in good health except for a controlled diabetic condition. Mr. Cotner testified that plaintiff came to the Cotner home on two occasions in an intoxicated condition shortly after the divorce was granted. This was denied by the plaintiff, who stated that he had never been a drinking man. Mr. Cotner also testified that plaintiff shook Lin Dee excessively for getting candy stain on her snow suit when she was approximately 18 months old. He further stated that when a specialist was needed for Lin Dee at an early age, plaintiff stated that he had no money and would not be responsible for the expense. Plaintiff stated that she was taken to a child specialist in Omaha and that he paid Charlotte the $15 doctor bill the following week. Mrs. Cotner testified to the incident relating to the employment of the child specialist. She stated that Charlotte and Lin Dee lived with them until Charlotte's death. She cared for the child while Charlotte was working, which was most of the time after Lin Dee became 3 years old.
The Cotners testified that they had great affection for the child and that they had the means and desire to raise and educate her. They testified that they had never forbidden the plaintiff to see the child, nor did they ever say anything to prejudice the child against her father. They have the feeling that the plaintiff did not treat the child properly and are convinced that the best interests of the child require that she remain in their care.
Lin Dee Raymond was 11 years of age at the time of the trial. She was not in good health for 6 months after her birth but is presently in good health. There is some evidence that she became emotionally upset when informed that her father wanted to take her into his home. She attends school regularly and her school reports indicate she is a very good student. She was called as a witness and testified to her affection for the Cotners. She testified to the things provided for her care, comfort, and amusement. She said she had never seen her father until the day of the trial and that he was a complete stranger to her. She further stated that she was very happy with her grandparents, the Cotners, and that she did not want to leave them and go with her father, whom she does not know.
The evidence sustains the following conclusions: Both the plaintiff and the defendants are suitable and fit persons to have the care and custody of Lin Dee Raymond. Both the plaintiff and defendants have suitable homes for caring for her. Both plaintiff and defendants have the means of supporting her. Both plaintiff and defendants live in communities which provide proper school and church facilities. Both plaintiff and defendants desire the custody of the child in order to properly train, educate, and provide the needs and comforts of this motherless 11-year-old girl. The problem confronting this court, as it was in the trial court, is the determination of what is best for Lin Dee Raymond under such circumstances.
The applicable law to a case such as we have before us may be summarized as follows: When the custody of a minor child is involved in a habeas corpus action the custody of the child is to be determined by the best interests of the child, with due regard for the superior rights of a fit, proper, and suitable parent. The courts may not properly deprive a parent of the custody of a minor child unless it is affirmatively shown that such parent is unfit to perform the duties imposed by the relationship, or has forfeited that right. Williams v. Williams, 161 Neb. 686, 74 N.W.2d 543; Caporale v. Hale, 169 Neb. 751, 100 N.W.2d 847. The right of parents to the custody of minor children of tender years is not to be lightly set aside and the court may not deprive parents of such custody unless they are shown to be unfit to perform the duties imposed by that relationship, or have forfeited their right. Osterholt v. Osterholt, 173 Neb. 683, 114 N.W.2d 734; State v. Gross, 173 Nek. 536, 114 N.W.2d 16. A decree of divorce, which awards the custody of a minor child to the mother and in which there is no finding of unfitness of the father, does not deprive the father of the natural right of custody of his child except as against the mother. In re Guardianship of Peterson, 119 Neb. 511, 229 N.W. 885.
It is true that the rights of a father to the custody of his minor child, upon the death or unfitness of the mother to whom legal custody was granted, may be defeated by his abandonment of the child, his complete indifference to its welfare, or by his own unfitness to have its custody. When the superior right of the father has been forfeited, the natural right of a father to have the custody of his minor child must give way to the best interests of the child, even though it results in placing the custody of the child in more distant relatives or unrelated persons. See, Gorsuch v. Gorsuch, on rehearing, 143 Neb. 578, 11 N.W.2d 456; Williams v. Williams, supra.
The evidence shows that plaintiff and defendants have suitable homes in which to care for this young girl. There is no evidence that the Cotners have failed in any respect in caring for her. They are suitable and fit persons to have her care and custody. The plaintiff is likewise a suitable and fit person to have the care and custody of his 11-year-old daughter. The decision must therefore rest on other considerations.
The father has a superior right to the custody of his daughter, unless he has forfeited that right. The issue resolves itself into the question of whether or not he has forfeited his natural right as the girl's father to have her custody. The evidence shows that the father has a good, well-kept home. His wife said she is willing to care for Lin Dee the same as the other children in the home. The step-sister and two half brothers in plaintiff's home would afford companionship ordinarily beneficial to a child of 11 years. The ages of the plaintiff and his present wife are a fact in favor of the plaintiff when measured against the advanced years of the defendants. We find nothing in plaintiff's home and surroundings that mitigates against his right to the child's custody.
The plaintiff and Charlotte were divorced on March 12, 1952, when Lin Dee was 15 months of age. The child was properly placed in the care of her mother. Plaintiff was required to provide child support. The plaintiff has made every payment of child support as it came due. The plaintiff visited the child when she was very small. He has not visited her during the last 9 years, although he has resided less than 100 miles distant. Plaintiff said he did not visit the child for the reason that he was requested by Charlotte not to do so because she did not believe it to be in the best interest of the child. If his failure to visit the child was in deference to the wishes of Charlotte and what he thought was the best interests of the child, an indifference to the child's welfare would not be indicated. The evidence shows that plaintiff did keep himself informed of the child's welfare through his own parents, who visited the child on an average of once a month. Some evidence was offered that plaintiff was intoxicated on two occasions more than 9 years previous to the trial. Plaintiff denied the truth of this statement. The subsequent conduct of the plaintiff as testified to by disinterested parties does not support a finding that he used intoxicants to the detriment of himself or family, if he used them at all. Plaintiff has not failed to support the child. He has not abandoned the child. He has not voluntarily relinquished the child to the Cotners with the expectation that they would furnish care and support. We think the evidence shows that plaintiff is a fit and proper person to have the custody of his child and that he has done nothing that would sustain a finding that he had forfeited his superior right to her custody.
The record shows that the defendants have had the child in their home for a period of 10 years and that they have become attached to the child. The child has also become much attached to them and prefers to remain with them. The unfortunate situation arose, however, because the mother, who had the legal custody of the child, took her there. It was not because of any consent or abandonment of the child on the part of the father. It cannot be said that the natural result of the attachment of the grandparents and Lin Dee for each other was in any manner the result of a choice on the part of the plaintiff. It is one of those domestic situations which cause great concern on the part of this court as it did the trial court. The case of Baumann v. Baumann, 169 Neb. 805, 101 N.W.2d 192, is almost on all fours on its facts and result as the case presently before us. The reasoning of that case is decisive of the issues raised by this appeal.
The record discloses that the trial court exhaustively reviewed the evidence and the law at the time the judgment was rendered. It indicates a careful consideration of every pertinent fact. The trial court had the opportunity to see and hear the witnesses, an advantage which this court does not have. While this court is required to try the case de novo on the record, where the evidence is in unreconcilable conflict, the findings of the trial court with respect thereto are entitled to great weight. After a consideration of the evidence, the law, and the findings of the trial court as above stated, we can find no legal basis for interfering with the judgment of the trial court, and its judgment is affirmed.
AFFIRMED.