Stearns v. Andre

Of the marriage of Maurice L. Stearns and Ida Stearns two children were born, Wesley on January 13, 1918, and Neil on June 3, 1921. In February, 1922, Mrs. Ida Stearns left her husband, taking the children, and went to her parental home in Ottawa county. She filed bill for divorce. She was given decree on March 19, 1923; the court finding: * * * "that the said defendant, Maurice Lane Stearns, has been guilty of several acts of extreme cruelty and nonsupport therein charged, and that he is not a suitable person to have the care, custody, and education of the minor children, the issue of said marriage." * * * The case was not contested. The decree recites and *Page 415 approves a property settlement, and it awarded the children to the mother. In June, 1923, Mr. Stearns married Edith Nichols, a widow, who had a child then about five years old, and who owned a home in Lansing, in which home Mr. Stearns since the marriage has resided with his wife and her child. Ida Stearns married John DeYoung on May 29, 1924, and with her children lived with him in his home across the road from the farm home of her parents until about Christmas time before her death, March 25, 1925. From February, 1922, to March, 1925, except as above stated, the children lived and were cared for in the home of the said grandparents, Mr. and Mrs. Cornelius Andre. After the mother's death, the children, agreeable to the wish of their dying mother, were taken by the grandparents, and the father sought to gain from them custody of the children, and was refused. He instituted actions of habeas corpus against Cornelius Andre, which actions were consolidated by court and counsel in the trial. Defendant had judgment, which plaintiff reviews on certiorari. Law applicable to this case is discussed in Greene v. Walker,227 Mich. 672, at page 682. It was there recognized that an important question is the welfare of the child; but of the parent's seeking custody of a child it was said: "But, if the father be honest, moral, affectionate to his children, and his home be surrounded with good influences, and it is apparent that the child will receive kind treatment in it, in my opinion he is entitled to its custody. I think this court has always recognized the prima facie right of the parent, and has never decided against such right, except in cases, like the one under consideration, where the facts justified a denial of it." With respect to the rule relative to the welfare of the child, it was held in Re Goldinger, 207 Mich. 99: *Page 416 "We are unable to find, however, that this court has ever said, or interpreted the rule to mean, that a father would be deprived of the possession of his child where it clearly appears that he is a man of good habits, honest, and well able to provide for his child." It is the statute law of this State that the father, and in case of his decease the mother, if competent and otherwise suitable, shall be entitled to the custody of a minor child. 3 Comp. Laws 1915, § 13955. On certiorari, a province of this court is to consider questions of law; not to weigh evidence except to determine that there is an entire absence of proof on some material matter (People v. Swanson, 217 Mich. 103; Carpenter v.Carpenter, 149 Mich. 138). We may inquire whether the evidence as a matter of law supports the judgment. Partch v. Baird,230 Mich. 615. The trial judge found: "There is no question but that the children are in a good home at the present time and that they have the proper home influences and that proper and suitable care is being given them. There is no question raised but that the children will continue to receive proper care and support if left in the present home and that the respondent is amply able, financially, and is willing to provide for all the wants of the children and is able and willing to give them a good education. The manner in which he has reared his own children shows that these grandchildren, if left in his care, will not be neglected in any way. The wife of the respondent, the grandmother of the children, is a kind Christian woman of the type that will give her best service to see that the best influence surround the children. "The court doth further find that the only question in the case is whether the facts established in this case are sufficient to deny the father the rights to the custody of these children. "The attitude of the father towards the mother of these children and his having been guilty of such conduct as to compel the mother to take the children from his home; his lack of interest as shown in this case *Page 417 in his children ever since that time until the hearing of this case; the fact that the youngest child does not know his father and that the present Mrs. Stearns, wife of the petitioner, is an entire stranger to both children; and the fact that the father is away from home a great deal of the time; and the further fact that the father failed truthfully to give his testimony on the hearing of this case, make it satisfactorily to appear in the court that the father of these children, the petitioner, is not entitled at the present time to the custody of the children involved in this suit and that the welfare of the children will be best served by leaving them where they are at the present time in the home of the respondent." The finding relative to unfitness of the father, the plaintiff, that he did not testify truthfully in the case at bar has support in the record and may not be disturbed. The further finding that the plaintiff had been guilty of misconduct which compelled his wife, mother of the children, to leave him and to take the children from his home, likewise is supported by the record and must stand. We need not discuss the finding of plaintiff's unfitness further, being of the opinion that there is evidence sufficient in law to support it. It will serve no good purpose, and it will not aid any of the parties interested, to detail further the facts. They are stated sufficiently by the trial judge, whose finding that the welfare of the children will be best served by leaving them with their grandparents is supported by evidence sufficient in law. Judgment affirmed. SNOW, FELLOWS, and McDONALD, JJ., concurred with CLARK, J.