Schneider v. Schwabe

FLY, J. On April 1, 1911, Rosa Schneider, joined by her husband, Henry Schneider, applied for a writ of habeas corpus to recover of appellee the custody of Emil and Katie Schwabe, her two minor children by Ed. Schwabe, a former husband. The cause was heard, and it was the judgment of the court that it was for the best interests of the minors that appellee’s custody of them be not disturbed, and that they be remanded to his custody. In 1901 Ed. Schwabe, then the husband of Rosa Schneider, died in De Witt county, Tex., leaving surviving him Rosa, his wife, and two children, Emil and Katie. He was a renter and owned no property, except a few chattels. At the time of his death, the boy was 4 years old and the girl 5 or 6 months old. Before the death of Ed. Schwabe, he had placed his son, Emil, in the hands of Henry Schwabe, the appellee herein, to take charge of and support him, and appellee' and his wife have had the child in their home ever since, with the knowledge and consent of Rosa Schneider. Henry Schwabe and his wife have no children, and he is financially able to properly care for and educate the children. When Katie was [266] 7 months old, her mother left her in charge of one Knipper, a poor man with eleven children of his own. In 1903 Henry Schwabe was appointed her guadian, and took possession of her through an order of the district court of De Witt county. Rosa Schneider removed to San Antonio in 1901, and married Henry' Schneider in 1902, hut seemingly took no interest in the welfare of her children, and made no demand for the children until she and her husband failed to get a small sum of money belonging to the children, a short while befpre this suit was filed. Great affection exists between the children and Henry Schwabe and wife. • The children were practically abandoned by their mother for 9 years, and during that time she had borne three children to Henry Schneider. He is 40 years of age, and is a waiter in a restaurant, earning $40 a month, and he claims to get $40 to $45 a month in tips. No request was made for the children before this suit was instituted. Henry Schneider has two children by a former wife, in Florida, a boy 17 and a girl 14 years of age, 'who are being supported by their grandmother. Henry Schwabe is a prosperous farmer, able and willing to properly support and educate the children, as he has been doing for years. Emil testified at the trial, and stated that he did not wish to leave his uncle. The latter has a farm, while the appellants are living in a rented house in the city of San Antonio. [1] Rosa Schneider parted with the possession of her children, and for nine years 'contributed nothing to their support, and took little or no interest in them. One was a seven months old babe, whom she left in the hands of a poor man with a large family, and came to San Antonio and married and gave birth to another family. While recognizing the natural right that parents have toi the custody of their children, the children have rights that are higher and of more importance to state and society than the naked right of parents to their custody; and, if their interests can be better conserved by leaving or placing them in charge of some one who can better protect them from the evils that threaten the lives and destinies of the young, the state has the authority, and it is its bounden duty, to place them in that custody. No. sentimentality should attend a proceeding of this character, but the permanent interest and welfare of the child should be the great aim and end to be attained. Under the facts of this case, if the interest and happiness of the children are to be consulted, there can be no doubt that the children will be more kindly nurtured and trained by their uncle, who is in comfortable circumstances on a farm in De Witt county, away from the seductive influences of a modern city, than in a rented house in the city with three other children of the half blood, dependent upon the exertions of a stepfather getting a salary of $40 . and the uncertain stipends of those who may patronize the restaurant in which he is employed. With the high price of every necessity of life, scant provision could be made for seven persons, leaving out of view the chances of a still larger family, and the possible misfortune of losing his employment. The aunt and uncle are above reproach; they 'have been caring for and educating the- children, and the children are satisfied and happy. Appellants have been just as able for ten years as they are now to maintain and support the children, but never sought to take charge of them until they were refused the money, and after the children had reached an age that they might be useful. The facts are much stronger in this case than in the case of State v. Deaton, 93 Tex. 243, 54 S. W. 901, for in that case the mother had no possible .way to care for the child for the two years that it was away from her; but she married at the end of that time and immediately applied for her child, and, when her application was denied; filed suit for it. Her second husband had a good home, consisting of 200 acres of land, and stock and other personal property. [2] We think, however, that matters of this character are questions of fact to be determined, in the first instance, by the trial court, and then by the Court of Civil Appeals; those two tribunals being vested by law with the sole authority to consider questions of fact. That position was taken in the well-considered case of Legate v. Legate, 87 Tex. 248, 28 S. W. 281, wherein it was said: “The question as to whose custody will be most beneficial to the infant is one of fact of which this court has no jurisdiction, but which is to be determined, in the first instance, by the district court, upon hearing all the evidence tending to shed any light upon these two homes and the people inhabiting them, including their entire connection with, affection for, and present and future ability to care and provide for, this little girl, in order that the court may be able to determine upon the whole case the difficult question of fact above stated.” In the Legate Case it was declared that the child “is entitled to that home and environment which will probably best promote the interest of the infant,” and that proposition is not disputed, in terms at least, in the Deaton Case. Doubtless, as said in the Dea-ton Case, “God, in his wisdom, has placed upon the father and mother the obligation to nurture, educate, protect, and guide their offspring;” but when for years they fail to perform those natural duties, and have, without excuse, committed the care of their children of tender years to other and more willing hearts and hands, the rule is that the welfare of the children, and not the desires, whims, or newly developed affection of the parents, should be consulted, ¿nd should [267] control In adjudicating the custody of the children. Peese v. Gellerman, 51 Tex. Civ. App. 39, 110 S. W. 196. The judgment will be affirmed.