Stout v. Massie

88 S.E.2d 51, 140 W. Va. 731, 1955 W. Va. LEXIS 13

• Court: West Virginia Supreme Court
• Decided: March 22, 1955
• Docket: No. 10687
• Status: Published

Opinions

Lovins, President:

This appeal was prosecuted to this Court by Betty Stout, hereinafter designated as plaintiff, from a decree of the Circuit Court of Fayette County, West Virginia, whereby the Court held null and void an adoption proceeding concerning the infant daughter of plaintiff by R. D. Massie and Iris Massie, herein designated as defendants, and decreed that the custody of the infant remain with said defendants. The reason for giving the custody of the infant to the defendants is that the plaintiff, by her acquiescence and conduct, had transferred the custody of her infant daughter to the defendants.

On April 21, 1952, the Circuit Court of Fayette County entered a decree providing for the adoption of the infant by defendants. On February 25, 1953, plaintiff, by next friend, instituted this suit in the Circuit Court of Fay-ette County whereby she prayed that the former decree of adoption of Barbara Ann Williams be set aside. In support of her prayer, plaintiff alleges that she gave birth to the infant on September 4, 1950, out of wedlock, when she was approximately sixteen years oí age, and while living with her parents at Pemberton, Raleigh County, West Virginia; that when the infant was approximately six months of age, the father of plaintiff having forced her to leave his home with her infant daughter, plaintiff went to the residence of the defendants, Iris Massie and R. D. Massie, her sister and brother-in-law respectively, who then and presently reside in the vicinity of Gate-wood, Fayette County, West Virginia; that she lived with the defendants for at least one year and then went to Cincinnati, Ohio, in October, 1951, to seek employment; that she left her infant daughter with the defendants with the understanding that she would return for the child when she was in a position to care for it; that she corresponded regularly with defendants; that in April, 1952, plaintiff married Herbert Stout who has a home and is well qualified to rear plaintiff’s child; that a fraud had been perpetrated on the Court as well as plaintiff and her child in the adoption proceedings; that no notice of the adoption proceedings was ever served on plaintiff although defendants knew where she could be located at all times. Plaintiff denied that she had abandoned her infant daughter, that she had failed to contribute to the support of said child or that she had conducted herself in any way that would warrant the adoption of her child by the defendants.

The defendants’ answer admitted the existence of the decree of April 21st, 1952, by which they adopted plaintiff’s infant daughter. But, they allege that sometime prior to the 21st day of April, 1952, when their petition for adoption was filed, an order was entered filing this petition and inhibiting and restraining plaintiff from interfering with the care, custody and control of said infant child until full hearing could be had on the merits; that a copy of this order was seen by plaintiff and her husband; that defendants went to Cincinnati, Ohio, in July, 1952, at which time they made known to plaintiff their plans to adopt her infant daughter and that no objections were made; that the reason plaintiff went to Cincinnati was because she was then unmarried and pregnant with child; that defendants have been residents of Fayette County for_years, are permanently situated and own their home;' that defendant, R. D. Massie is steadily employed as a miner, earning approximately $350.00 a month; that defendants attempted to assist plaintiff in any way that was possible but had no intention of perpetrating a fraud on the plaintiff or in any way misleading the Court. They prayed that the petition filed on behalf of plaintiff be dismissed.

On March 27, 1953, plaintiff filed a Replication to the Answer of defendants, alleging in effect that the Answer was uncertain, untrue and insufficient and further that the proceedings had on the 21st day of April, 1952, were void and pf no effect for the following reasons: (1) That no notice was served upon plaintiff of any hearing to be had in connection with the adoption of Barbara Ann Williams, her daughter; that she at no time saw or had read to her any order in connection with the said adoption proceeding; (2) At no time was there any guardian ad litem, or next friend appointed for the said infant at the hearing of the proposed adoption; (3) that there was no notice published in any newspaper regarding the adoption or the attempt to adopt; that plaintiff had no knowledge of the adoption of her infant daughter until late in the autumn of 1952; that she immediately secured the services of an attorney who after investigation, discovered the decree of adoption, dated April 21, 1952, had been rendered; that she immediately employed counsel to represent her for the purpose of having the adoption decree set aside. Plaintiff denies that she was pregnant at the time she left defendants’ home to go to Cincinnati, Ohio.

Certain facts alleged in the petition, answer and replication are in dispute. Plaintiff alleged and so testified that she was forced to leave the home of defendants for the reason that defendant R. D. Massie, her brother-in-law, attempted to have improper relations with her. The mother of plaintiff and defendant, Iris Massie, testified that plaintiff left the home of defendants’ without just cause and because of an argument over the child. Defendant, R. D. Massie, denied the accusations of plaintiff.

The mother and a sister of plaintiff testified that they were informed by the plaintiff that she was pregnant at the time she went to Cincinnati, and that she had a miscarriage of a six month male child. This testimony is denied by plaintiff.'

The record is clear that plaintiff has seen her child only four times during the two years she has been in Cincinnati; that she had never at any time contributed to the support of her daughter; that defendants have provided adequately in every way and have had the sole care and responsibility of the child since she was six months of age; that the plaintiff who is now nineteen years of age has married a man, 28 years old, who is a native of Cincinnati, Ohio; has a respectable standing in the community. He is employed as a dairy worker and has been employed by the same person for nine years with a salary of approximately $76.00 per week. Plaintiff and her husband presently reside in a three and one-half room apartment in a respectable neighborhood in the City of Cincinnati.

Litigation relative to the custody of an infant is cognizable by a court of law in habeas corpus proceedings. Pugh v. Pugh, 133 W. Va. 501, 510, 56 S. E. 2d 901; Green v. Campbell, 35 W. Va. 698, 14 S. E. 21; Rust v. Vanvacter, 9 W. Va. 600. But such proceedings have been treated by this Court according to the principles of equity.

The instant proceeding was commenced for the purpose of setting aside a former decree of adoption, as well as determining the custody of the infant child of the plaintiff.

The record herein shows that a writ of error was granted to the decree of the trial court. We think it is erroneous to designate the appellate process as a writ of error and we now designate such process as an appeal.

We find nothing in any statute specifically indicating that a court of equity has jurisdiction of this proceeding. But an examination of text books and decided cases in other jurisdictions clearly shows that the jurisdiction and power of the court of equity are of ancient origin. In Hoggs, Equity Principles, First Edition, §226, the following is stated: “ ‘The powers of a court of chancery in England to act as the guardian of infants, and to exercise a general supervision over all matters pertaining to their persons and estates, passed to and is now generally exercised by courts of chancery in this country without dispute. In the exercise of this jurisdiction, the court may permanently fix the status of infants, even in disregard of the legal rights of parents, when the welfare of the infants requires it.’ ” 3 Story’s Equity Jurisprudence, 14th Edition, §1752. See Hogg’s Equity Procedure, Miller, 3rd Edition, §788; Richards v. East Tennessee V. & G. Ry. Co. (Ga.) 33 S. E. 193. In the Richards case, the principle is stated in the following language: “The jurisdiction of courts of equity over the persons and property of infants dates from a very early period in the history of these courts. In its inception, this jurisdiction belonged to the king of England, the same constituting a part of his powers, as parens patriae, to protect his subjects, and was transferred by him to the court of chancery. This jurisdiction is broad, comprehensive, and plenary. In all suits or legal proceedings, of whatever nature, in which the personal or property rights of a minor are involved, the protective powers of a court of chancery may be invoked whenever it becomes necessary to fully protect such rights.” See Annotation, 14 A. L. R. 295, 308; 43 C. J. S., Infants, §5; 27 Am. Jur., Infants, §105, wherein, among other things, it is stated that a court of equity will take cognizance of any proper case, independent of any statute.

We are of opinion that even though there is no statute conferring such jurisdiction, and a proceeding in habeas corpus is available, a court of equity has jurisdiction to determine the custody of an infant. Likewise, habeas corpus is a proper remedy to determine the custody of an infant or infants. Bell v. Echoltz, 132 W. Va. 747, 53 S. E. 2d 627; State ex rel. Lipscomb v. Joplin, 131 W. Va. 302, 47 S. E. 2d 221; Pukas v. Pukas, 129 W. Va. 765, 42 S. E. 2d 11; Cunningham v. Barnes, 37 W. Va. 746, 17 S. E. 308; Green v. Campbell, supra.

An examination of the authorities in this state shows that there is an inflexible and controlling principle of law which has been frequently stated by this Court in determining the question of the custody of an infant. In State ex rel. Lipscomb v. Joplin, supra, this Court held that: “In a contest involving the custody of an infant the welfare of the child is the polar star by which the discretion of the court will be guided.” Frame v. Wehn, 120 W. Va. 208, 197 S. E. 524; Arnold v. Arnold, 112 W. Va. 481, 164 S. E. 850; State ex rel. Cooke v. Williams, 107 W. Va. 450; 148 S. E. 488; Palmer v. Postlethwaite, 106 W. Va. 383, 145 S. E. 738. See Williams v. Williams (Va.), 66 S. E. 2d 500; Reynolds v. Reynolds, 109 W. Va. 513, 155 S. E. 652.

So far as we have been able to ascertain, this Court has adhered to that principle throughout its existence, and without variation has applied such principle in litigation involving the custody of infants.

There is another principle of almost equal dignity and compelling effect. A parent being the natural guardian of an infant, is entitled to its custody unless such parent has relinquished the custody of the infant to some other person, or is an unfit person to rear it. Pierce v. Jeffries, 103 W. Va. 410, 137 S. E. 651. See Palmer v. Postlethwaite, supra; Bell v. Echoltz, supra. “*** the father or mother of any minor child or children shall be entitled to the custody of the person of such child or children, and to the care of his or their education.” Code, 44-10-7.

The parent, however, is not entitled to the custody of the child in all circumstances. State v. Reuff, 29 W. Va. 751, 2 S. E. 801. A trial court exercises a reviewable discretion in disposing of the custody of an infant. Armstrong v. Stone & Wife, 9 Grat. 102. See Coffee and Wife v. Black, 82 Va. 567. In some instances, this Court has defined the parents’ right as a technical right. Connor v. Harris, 100 W. Va. 313, 130 S. E. 281; Pierce v. Jeffries, supra. The rights of a parent are subordinate to the interest of the infant.

In the instant case, the trial court, though indicating that the plaintiff, the natural mother of the infant, is an estimable person, also found that the welfare of the child required it to be left in the custody of the defendants. The record does not disclose that the court has abused its discretion in so finding.

The record shows that the plaintiff left her father’s home, under compulsion; went to the home of defendants and stayed there for a considerable length of time; that she went to Chicago in the company of another girl and two boys. It is also established that she went to Cincinnati, Ohio, and remained there for about two years and only saw the infant approximately four times during that interval. The plaintiff also stated that she was pregnant a second time. She now denies this and says it was untrue. If that statement was true or false, it reflects upon her moral character to some extent. There is also proof in the record that she worked at a restaurant as a waitress. Her relatives objected to her working at such restaurant because of its doubtful reputation. The record shows that she stayed out late at night which leads us to believe that a recurrence of this conduct on the part of the plaintiff may happen. True, she is married, but the husband is a stranger to the infant, who would be removed to strange and unusual surroundings if her mother is given her custody.

In view of the foregoing, we conclude that the trial court did not abuse its discretion in awarding the custody of the child to the defendants.

There is another element which supports the finding of the trial court. The mother of the plaintiff, Mrs. Massie, who is plaintiff’s sister and one of the defendants and another sister of the plaintiff testify to their distrust of the plaintiff as being a proper person to rear the child.

The record shows that the husband of Mrs. Massie is making good wages and that he owns property; that schools and churches are available to the infant. True, the child may be compelled to walk some distance to embark upon the school bus, but that is not a great hardship.

The findings of the trial chancellor will not be disturbed unless plainly wrong. Highland v. Davis, 119 W. Va. 501, 195 S. E. 604; Spradling v. Spradling, 118 W. Va. 308, 190 S. E. 537; Wade v. Wade, 115 W. Va. 132, 174 S. E. 787.

The trial court, having found that the child’s interest will be promoted by leaving it in the custody of the defendants, evidently knowing the circumstances surrounding the home of the defendants, we are not disposed to reverse that finding and therefore, affirm the same.

It may be well to observe at this point that the custody of the child here decreed is not permanent, but may be altered if changed conditions warrant such change.

Affirmed.