Wilson v. Flaccus

DE CONCINI, Justice. This case involves the custody of a minor, aged six and one-half years, Christopher William Wilson III, known as Bill. He is the natural son of the parties hereto. The appellant and father, Christopher William Wilson, Jr., is a lawyer and was the petitioner in the trial court for a writ of habeas corpus. The respondent, Nancy Patterson Flaccus, nee Wilson, the mother, successfully resisted the writ below. Petitioner brought this appeal on the ground that the lower court abused its discretion in awarding Bill to the mother in the light of the evidence adduced before it. The background of the family relationship is somewhat as follows. The parties were married in June of 1939. They had [198] two children, Nancy, a daughter born in March 1941, and Bill born in May 1943. The parties were incompatible. In June of 1947, the respondent left the home of the parties in New York with the children and stayed with respondent’s mother in Pittsburgh. In August 1947, the parties entered into a separation agreement, settling their property rights and dividing the custody of the children, whereby Nancy was given to the father and Bill to the mother, subject to the rights of each parent to have temporary custody of both children during a three-weeks’ period each summer. In September 1947, respondent proceeded to Charlotte Amalia, Virgin Islands, where she remained seven weeks. She was there granted a divorce. The court adopted the separation agreement and recognized the provisions for divided custody of the children. In January 1948, respondent married Bliss Flaccus in Pittsburgh. The following day they left for Phoenix, Arizona where they were living at the time of the hearing on the writ. At the time of the hearing one child had been born as an issue of this marriage. In June 1948, petitioner married a widow with two children about Nancy’s age. The appellant raises three assignments of error on the ground that the court abused its discretion in awarding the child to the mother, in that: 1. The mother was unfit to have custody of the child; 2. The order of the trial court was against the best interest of the minor, and 3. The father was best fit to have custody of the minor. Respondent admits that appellant is a fit and proper person to have custody of the child, but denies that she is unfit for that, purpose. The trial of this matter consumed many days. There are 1350 pages of the Reporter’s Transcript, and approximately 400 pages of depositions. The latter were taken from across the length and breadth of the United States. In addition there are a number of letters, pictures and other exhibits. All of the foregoing have been minutely examined by the court. The record is full of conflicting testimony and sprinkled with a big dose of bias and prejudice on the part of many of the witnesses. It would uselessly lengthen this opinion to quote even a portion of the testimony. One cannot read the testimony of some of the witnesses without becoming incensed at the treatment accorded to Bill by respondent; yet when one reads the contradictory statements made by other witnesses the aroused feelings subside. Briefs of counsel are of the same character. After reading appellant’s opening brief we are reminded of the learned justice of the peace, who upon hearing the plaintiff’s side of the case in his first trial exclaimed, “The plaintiff wins!” Upon reading the respondent’s brief we revert to the story of the justice of the peace. The defendant [199] in the story objected to the J. P.’s quick judgment and asked leave to put on his side of the case, which was granted. Upon hearing the defendant’s case, the J. P. leaned back, drew a long breath and said, “Well I’ll be dogged, the defendant wins.” In this case, both the testimony and briefs are of a like nature. If one believes the appellant’s side, the trial court erred, but if one believes the respondent’s side the court was justified in its decision. That there is a conflict as to the treatment of Bill, there is no question. This is true whether the testimony was from interested parties, domestic servants, doctors or psychiatrists. One of the latter termed Bill a problem child as far as behavior was concerned. The other, that he was a boy with a problem. Admittedly 'he was one or the other, or both. Most of the witnesses termed him an endearing child. This court has said times without number that the trial court who had the opportunity to see, listen and gauge the demeanor of the witnesses on the stand is the best judge of conflicting testimony. If there is any reasonable evidence in the record to sustain the judgment this court will not disturb it. The judgment of the lower court is affirmed with the exception that, in addition to the usual visitorial rights, the decree be modified in that the appellant be permitted to have the custody of Bill three weeks each summer as the parties agreed in their original separation agreement. This modi- fication we believe to be for the best interest of the child. Affirmed as modified. UDALL, C. J., and LA PRADE, J., concur.