State Ex Rel. Watland v. Hurley

Buford, J. We are unable to agree with the conclusion reached in the opinion prepared by Mr. Justice Terrell in this case. We do not think that the judgment of this Court in the matter of the Guardianship of Frances Kathryn Watland and Bernice Loreen Watland, minors, styled Andrew R. Watland, appellant, v. Myrtle K. Hurley, appellee, is decisive of the issues in the present case. ‘ The petition shows that while petitioner was laboring under the disability of a mental derangement and while he was confined in a sanitarium in the City of Richmond, one John L. Brin was appointed Guardian of the person and estate of petitioner and that during the time petitioner was laboring under such disability his said Guardian made application- for the Court of the County Judge of Pinellas County, Florida, for appointment of the said Myrtle K. Hurley as Guardian of the minor children of petitioner; that pursuant to said application the County Judge did appoint the said Myrtle K. Hurley as Guardian of the two minor children, Frances Kathryn Watland and Bernice Loreen Watland, and that thereafter on the 16th day of April, *894 1935, upon application of Luther A. Jones as next friend for petitioner, the Circuit Court in and for Pinellas County, Florida, entered a decree judicially declaring petitioner sane and capable of managing his own affairs, a part of which decree was as follows: “That Andrew R. Watland is of sound mind judicially and is capable of taking over the’ management, custody and control of his properties, and of managing his own affairs. “4. That the said Andrew R. Watland be and he hereby is immediately restored to his personal liberty. “5. That John L. Brin, heretofore appointed and now acting as the Guardian of the said Andrew R. Watland and of his estate, shall within thirty days make full settlement with Andrew R. Watland of all the property of the said Andrew R. Watland in the hands, custody or control of the said John L. Brin as such guardian.” The paramount question in the case of Watland v. Hurley in the matter of the Guardianship of Frances Kathryn Watland and Bernice Loreen Watland, minors, supra, was that of the fitness of Myrtle K. Hurley as Guardian of said minors. The paramount question in this case is the right of the parent to have the custody of his children aside from the custody and control of the estate of the children and we think that question must be determined upon evidence taken at the time or subsequent to the time of the issuance of the writ of habeas corpus and not upon evidence of conditions as fhey existed prior to that time. In Hopkins v. Hopkins, 84 Fla. 500, 94 Sou. 157, we said: “The father is regarded as having a legal right to the custody and care of his minor children when he is not shown to be an improper person to best conserve the welfare of the children.” *895 See also Minick v. Minick, 111 Fla. 469, 149 Sou. 483. In 28 C. J. 1111 it is said: “So far as the natural parents are concerned, it is usually-held that their right to custody of their children is superior to any right of the guardian, unless the question of the parent’s fitness to have the custody of the children has been judicially considered and determined adversely to the parent, in which event the right of the guardian is superior.” The following authorities support the text: “Bowels v. Dixon, 32 Ark. 92; Lord v. Hough, 37 Cal. 657; Peo v. Hoxie, 175 Ill. A. 563; Cottrell v. Booth, 166 Ind. 469; 76 N. E. 546; Brooke v. Logan, 112 Ind. 183; 12 N. E. 669, 2 Am. SR 177; In re Brown, 98 Kan. 663, 159 P. 405; Rallihan v. Motschmann, 179 Ky. 180, 200 SW 358; Mason v. Williams, 165 Ky. 331, 176 SW 1171; Lea v. Richardson, 8 La. Ann. 94; Berluchaux v. Berluchaux, 7 La. 539; McDowell v. Bonner, 62 Miss. 278; Foster v. Alston, 7 Miss. 406 (rev Freem. 732). Clarke v. Lyon, 82 Nebr. 625, 118 NW 472, 20 Lrans 171; Mathews v. Wade, 2 W. Vs. 464. Stone v. Duffy, 219 Mass. 178, 106 N. E. 595. In re Brown, 120 La. 50, 44 Sou. 919.” So, it is seen that the existence of Guardianship in a third person does not preclude the right of the father to the custody of his minor children. We treat the motion to quash as return and we think that the issues presented by such return and the petition are sufficiently clear to warrant the taking of testimony for the purpose of determining the right of petitioner to have the custody of the minor children. As this Court has no facilities for taking testimony other than by the appointment of a Commissioner, we now appoint the Honorable John U. Bird, Circuit Judge in and for the Sixth Judicial Circuit of Florida, as Commissioner, *896 with authority to take such relevant testimony as may be submitted by the parties at such time and place as he may appoint, after due notice thereof to the parties, and with authority to note and rule on the propriety of testimony offered and to make his report of such proceedings to this Court with due diligence. It is so ordered. Brown and Chapman, J. J., concur. Whitfield and Terrell, J. J., dissent.