Nannestad v. Nannestad

183 N.W. 541, 44 S.D. 241, 1921 S.D. LEXIS 90

• Court: South Dakota Supreme Court
• Decided: June 23, 1921
• Docket: File No. 4774
• Status: Published

Opinion

„ SMITH, J.

Habeas corpus upon the petition of Herman C. Nannestad to determine the custody of Adolph Melvin Nannestad, his son, aged 7 years.

Mary Nannestad, plaintiffs wife, mother of Adolph, was a daughter of a sister of Olaus O. Nannestad, one of the defendants herein; their home was on a farm in Deuel county owned by plaintiff The family of plaintiff consisted of his said wife, his daughter Clara, and his mother, aged about 80 years. Defendant Olaus O. Nannestad, his wife, Sina, and five children, ranging from 14 to 21 years of age, lived on a farm owned by him, about 2,yi miles from plaintiffs farm. An intimate friendship had existed between the two families for many years. After the birth of Adolph, his. mother became very ill, and, at her request, the defendant Sina Nannestad, came to plaintiff’s home to care for her and the two children, and remained there for about io> weeks, when Mary Njannestad was taken to a hospital. Sina Nannestad remained at plaintiff’s home caring for the children, until after the death and funeral of Mary Nannestad. The plaintiff went to the hospital with his wife, 'and remained with her until her death,' and took her body back to their home for burial. Upon his return he told Sina Nannestad that his wife had told him of a request she had made to Sina Nannestad, and her promise to take Adolph to her home and care for him as' though he were his own child. Plaintiff continued to reside upon his farmi with his daughter and his mother, who was aged and feeble, until his mother’s death in the fall of 1919, when he sold his farm and bought and moved into a home in the village of Brandt, which is near defendant’s farm. At various times prior thereto and shortly after occupying his new home in Brandt plaintiff expressed to defendants a desire to have the care and custody of his minor son in his own home. Ultimately this was refused by defendants, and this proceeding was begun.

[1] The trial court entered findings, conclusions, and judgment for defendants. The trial court found — and we think there is sufficient evidence to sustain the finding — that the mother of Adolph, during her last illness, exacted a promise fronii the defendant Sina Nannestad that she would take the infant Adolph to her own home and care for him as though he were her own child, and would be a mother to him; that plaintiff took the said Adolph, then 12 weeks old, to defendants’ home, pursuant to said promise and agreement, and for about 7 years he has remained in said home, and has been treated by both defendants as though he were their own child; that a strong affection exists on the part of said infant toward the defendants; that he has all the comforts of a good home and of wholesome surroundings, and has at all times been treated kindly and tenderly cared for, clothed, and maintained, and has been given a Christian training in a Christian home, and has attended the public schools and Sunday school with defendants’ other children; that he has formed a preference for the home of defendants, and desires to be left in their custody; and that it is for the best interests of said Adolph in respect to his temporal, mental, and moral welfare, as well as his physical welfare, that he remain in the custody and under the control of the defendants.

The trial court also found, and we think upon sufficient evidence, that for more than 7 years last past the plaintiff had been afflicted with pulmonary tuberculosis, is in poor health, and is not physically strong enough for ordinary farm; work; that the plaintiff’s family consists of himself and his daughter Clara, now 9 years old; that plaintiff from time to time has hired a housekeper, and has no one else to care for said minor, and that to place said infant in plaintiff’s home would be exposing him to the danger of becoming afflicted with tuberculosis.

[2] We are of the view that there is sufficient evidence in the record to sustain these findings. While the trial court made no finding as to the moral character or fitness of plaintiff to> have the custody of his own child, the record discloses nothing whatever which would justify a finding of plaintiff’s unfitness to rear his own child. On the contrary the record shows that plaintiff has manifested much affection and solicitude for his infant son, has visited him frequently in defendant’s hom;,e and has voluntarily contributed some $840 for his benefit during the past 7 years. It appears, however, that plaintiff is practically without a home, is afflicted with chronic pulmonary tuberculosis, is about to remove to California for his health, to reside among strangers, and is subject to all the vicissitudes and uncertainties which must attend his physical condition in such surroundings. Under such circumstances we do' not feel that it would at this time be to the best interests of the infant son to take him' from his present home, where he is supplied with everything required for his physical and moral welfare and is affectionately cared for and nurtured, and to place him in his father’s home, where he might possibly become infected with tuberculosis, and where he must lack a mother’s care and affection, such as he has in his present home.

[3] We concur fully in the views expressed in Engle v. Yorks, 7 S. D. 254, 64 N. W. 132, that—

“Parental and filial relations are too sacred and delicate to be ignored, and ought only to be disturbed when it is shown that the well-being of the child plainly requires it.”

And in Haglund v. Egge, 41 S. D. 433, 171 N. W. 212, wherein this court held that though Revised Code 1919, § 184, gives the father a paramount right to custody of his minor child, such right is not absolute, but qualified, and mlust bend to best permanent interest of the child; neither father nor mother having rights militating seriously against the child’s welfare. In that case, as in State ex rel. Rennings v. Armstrong, 141 Minn. 47, 169 N. W. 249, and Jamison v. Gilbert, 38 Okl. 751, 135 Pac. 342, 47 L. R. A. (N. S.) 1133, cited by appellant, the father of the infant had remarried and had a suitable home, free from danger to the physical health or welfare of the child. Further comment is unnecessary.

[4] Appellant has assigned error upon certain rulings of the trial court in the reception and rejection of evidence, all of which we have considered. We are of the view that, whether technically erroneous or not, none of them were actually prejudicial to appellant’s rights.

The judgment of the trial court is affirmed.