Hewitt v. Long , 76 Ill. 399 ( 1875 )

Mr. Justice McAllister

delivered the opinion of the Court:

This is a controversy between parents, about the custody of a female child, named Alice Long, born October 5, 1858. The parties to the suit were married in Cass county, this State, March 15, 1857, and from thence lived together as husband and wife in that county until the wife, appellant here, became advanced in pregnancy with said" child, when, and before her birth, Jesse Long, the husband, appellee here, wilfully and without any reasonable' cause deserted and absented himself from appellant, and so continued to do for the space of more than two years, whereupon she filed her bill in the circuit court of Cass county, where she had, meanwhile, resided,' for a dissolution of the marriage, on the ground of such desertion. Jurisdiction was obtained of the person of appellee by publication, and by his afterwards causing his appearance to be entered by an attorney in fact, and such proceedings were thereupon had in said cause that afterwards, at the September term, 1860, of said court a decree was duly entered therein in appellant’s favor and against appellee, dissolving said marriage for the cause aforesaid, and awarding the care and custody of said child to appellant, the mother, also requiring appellee to pay appellant as alimony the sum of $1000, and to the guardian of said child .the sum of $2000 for her support and maintenance. These sums, as appears by the decree, were respectively paid at the time of entering it.

At the January term, 1873, of said court, Long presented his application, by petition and notice, for a modification of said decree so as to take the custody of said child from the mother, and bestow it upon him. At the April term next following, the application was granted, and the mother appeals to this court. ■

We shall not undertake to set out in detail the evidence upon which this modification was made, but only the results of it, as gathered from a careful examination.

It appears that from Long’s first desertion of his wife, he has continually absented himself from this State, with the exception of two visits, at which he barely saw Alice, and a third, when he came with two other men with a view to take her with him to Iowa, without the leave of the court, but could not find her. On this last occasion he did not see her at all. By his thus absenting himself from the State, he was almost a total stranger to the child. It appears that at the time of the hearing, Alice was upwards of fourteen years of age, and she testified in court to her desire to stay with her mother, and her aversion to being taken away by her father, who was a stranger to her. As showing reasons for the modification, Long introduced the testimony of various business men and some public officers residing in Jasper county, in the State of Iowa, to the effect that Long was the owner of, and resided upon, a farm situate about six miles from the village of Newton, in that county, the farm comprising some 2000 acres of land, mostly under cultivation, with a good house and other improvements upon it; that he was a cattle raiser, drover, and active business man; that he had a large amount of personal property, and his whole property was variously estimated at a value ranging from §50,000 to §150,000; that he was president of a national bank in Newton, had established a church and a school on his farm. It was shown that in 1867 he married the wife with whom he then lived, but had no children by her; that his house was well furnished, having both a piano and organ in it, upon which his wife played, and that she was a teacher in a Sabbath school. There is no evidence as to the age or experience of this wife, and none in respect to her, coming from any one having more than a general, casual acquaintance with her—none as to who she was, where she was brought up, what was her character before her marriage, or as to any of her personal characteristics. All that can be determined about her from the evidence, is barely that she is a woman who attends church, teaches in a Sabbath school, and plays upon a piano and organ. It is virtually into the society, keeping and control of this unknown woman, a total stranger to this young girl, that the latter is to be forcibly cast by the order appealed from. It is unnecessary to say, that a woman may attend church, may teach in a Sabbath school, and play both piano and organ, and yet be wholly unfit to be the mistress over a girl reared in tenderness and affection, as Alice has been. The father can have no particular affection for this child. The theory of natural affection which tenderly clings to a child whom a parent has never scarcely seen, and upon whom he has bestowed no care, may.do for works of the imagination, but will not, in the absence of proof, be presumed in a judicial investigation. There being much to repel, and nothing to warrant, the inference of affection on ' his part, when we consider his heartless treatment of the mother, his voluntary desertion of the child itself until nearly fourteen years of age, are we not justified in suspecting his motives? May they not be, after all, to annoy the mother, whom he must feel conscious of having injured, or may they not be to place the child in the position of mere drudge to this second wife, of whose personal characteristics we know so little? Is Long shown to be such a man as to whom no such motives should be imputed? If he possesses any degree of natural affection, why has he not exhibited it towards this child in earlier years? Without reasonable cause he deliberately deserted the child’s mother when she was about to become such, and that mother never received from him one word of explanation, either by letter or message, has never even seen his face from the time of that act until she met him in court, more than fourteen years afterwards, to resist his efforts to tear this child from her very bosom, to forcibly bear away the girl to a foreign State, among strangers, where she may be immured in that country castle, a virtual prisoner, under the dominion of such a father, beyond the ear of the court of which she is ward, beyond the reach of its protecting hand, and beyond a mother’s watchful eye, while we have no assurance of a counteracting influence from the second wife. Can a chancellor, under these circumstances, say, upon his conscience, it is just, it is in accordance with humane, equitable principles, to place this child’s welfare, physical and moral, in such jeopardy?

But his counsel say he may have had reasonable cause for leaving this child’s mother as lie did, but he is too manly to disclose it. Ho speculations of this nature can be indulged. Appellee, can not make an issue upon that question. The statute makes wilful desertion, without reasonable' cause, for the space of two years, a ground for divorce. Upon'that ground the bill in the original cause ivas filed. The decree finds all the necessary facts, and dissolves the marriage. By this decree he is conclusively estopped from alleging in this proceeding that he had reasonable cause for the desertion.

Again, the witnesses from Jasper county " seem none of them to have known him there more than five or six years. Pruntv, who was his attorney in fact in the divorce case, says he has known him twenty-five years. There is no witness, not even Long himself, who pretends to testify as to what means he-•had at the time he deserted appellant, or where, for the eight years preceding his being known in Jasper county, he had been, what he had been doing, or how he acquired his vast •property, which he says amounted to from $150,000 to $200,-000. There was a presumption against him for his past acts, which it was for him to overcome by proof. In short, it was for him to satisfy the conscience of the court that he was a different man from what he was when he committed the breach of his marital obligations. How has he done this? By showing that- somehow, during the late civil Avar, he acquired a large property; that he was president of a national bank? His wealth would give him that position. By shoAving he had established a church and school on his farm ? His property alone would do that, and the motive might be the gratification of personal vanity. That he kept his contracts with his fellow-men ? Self-interest would dictate that. We have given us, to repel the presumption against him that he could not be relied on in the relation of guardian having the custody of this child, literally nothing but the general evidence of business men and public officers of Jasper county, touching his mere outAvard circumstances and appearances, with the simple fact superadded that in his business transactions he was generally correct. This is but the exhibit which any man may make, no matter how faithless in his domestic relations, who had in early life married a virtuous and respectable girl; lived with her long enough to fully gratify his animal passions, and until she was about to become.a mother, then, without reasonable cause, basely desert'her; go west; acquire, no matter how, large wealth; marry a lady capable of making a display, by being a leader in the church and Sabbath school, of playing piano and organ; establish a church, a bank and a school, and gain-that sort of influential position which wealth, especially in new communities, so readily leads to. If the question were, whether the circuit court of Cass county should permit the property of a ward of that court to be taken out of its jurisdiction and intrusted to the hands of Jesse Long, it would be different; yet, would there not be great hesitation, even then ? But the question here is, whether that court shall abdicate its functions in respect to its ward, Alice Long, a girl of fourteen years, tenderly reared, and devotedly attached to her mother, and subject her to be forcibly, and against her will, wrested from the circle of her home and her love, carried beyond the jurisdiction of the court into a foreign State, there to be subjected to the dominion and control of a father who is a total stranger to her, and of whom all the court knows is, that he basely deserted that child’s mother, but has since, and during the late civil war, become wealthy, and acquired the ostentatious .position which mere wealth itself may bestow.

Usually, the question of custody of children arises between parents who have mutually contributed their aid and parental offices to rearing them, and where, from the circumstances, the degree of their affections is nearly the same; but here, the care and watchfulness are all from the mother; she has all the affection for this child which a kind mother can have, and it is next to impossible, from the circumstances, that Long should have any; and yet, she being the unoffending party, the only parent who can be supposed to have strong, tender affections for this child, is to be thus forcibly deprived of her society, and not only that, but subjected to the severe and immitigable punishment of having the object of her love carried, against her will, into a foreign State, thus cutting her off from even the poor privilege of visiting her and learning of her welfare. What has she done to merit all this? Who is she, that her rights, the claims of a mother’s affections, should be so disregarded—so despised?

It is quite impossible to read the evidence in this record without rising from its perusal with a thorough conviction of both reason and conscience that this mother is a most estimable woman. Her character and all the antecedents leading to its development, together with her precise relations to this child, are before us. When she gave birth to Alice, there was also born a twin brother. The terrible perils of this birth she encountered alone, without the aid. presence or sympathy of Jesse Long, her then husband and the father of those children. She not only encountered them alone, but with the stigma and mortification of his inexplicable desertion superadded; and thus alone, basely deserted by him who only a little over one year before had taken upon himself all the solemn obligations of marriage, she' had to nurture and care for these helpless offspring of a faithless husband, Avhen, after about a year, she consigned the little boy to the grave. Alice survived; and for five years, during all the Avorst dangers of infancy, this mother, taking refuge under her father’s roof, gave that child her care and watchfulness, under circumstances well calculated to bind it closely to her heart. It needs not the words of Avitnesses to tell us that no object is likely to become more dear than a child nurtured in sorrow by a deserted mother. Through all these trials, and in every neAv relation, she has borne herself in such a manner as to secure the respect of her acquaintances and neighbors. If one stain upon her character could be found, Long, who had ignored his relationship to this child for fourteen years, and now comes, in the pride and panoply of his wealth, and the arrogance of the common laAV right of fatherhood, to snatch it away, would have found and fixed that stain upon her. By what guide to the discretion and conscience of a chancellor can this thing be done? It is not pretended, by the evidence, or even in the argument of counsel, that this appellant is not a fit and proper person to have the continued custody of this girl, at an age when the moral and physical welfare of the latter, above all other times, needs the confidential advice of a mother. The evidence shows that after Alice was five years old, and appellant married Somers Hewitt, she wras, at the earnest request of appellant’s parents, then advanced in life, with no children at home, but in good circumstances, and between whom and Alice there was a mutual attachment, permitted by appellant to stay temporarily with her grandparents.

There was an ante-nuptial agreement between appellant and Somers Hewitt that’Alice should have a home in her family, and be treated as a child. This agreement Hewitt has alwavs been willing cheerfully to fulfil; but as the grandparents found so much comfort in the society of this child, she was permitted to remain with them until they died—the grandfather dying in November and the grandmother in December, 1872. During all this time, the relations.between Alice and her mother were most intimate, and the latter had the actual superintendence of her course of life. She had received all the education which it was meet and proper for a child of her age to receive. She is dutiful, bright and vigorous, and her mother, having taken her home at the death of her grandparents, declares, as a witness, her purpose to bring her up with virtuous, industrious habits, .and give her a good education ; and to this end she needs none of appellee’s money. Alice is worth $5000 in her own right. Appellant derives from her father’s estate some $5000 or $6000 in her own right; and Somers Hewitt is a respectable, well-to-do farmer, owning some 200 acres of land, with a large, commodious house upon it, free of debt, with plenty of personal property, and is -worth from $12,000 to $15,000. He is willing to give the girl a home with her mother, and make up whatever is lacking to give her a suitable education.

Under all these circumstances, we are at a loss to understand what reason could have dictated the making the modification of the decree, unless it was the supposed paramount common law right of the father, as such. In disposing of the custody of children, the primary object should be the good of the children. How, waiving all other questions, can it be successfully maintained that the good, the substantial welfare of Alice Long, will be promoted by thus forcing her away from her mother and all the associations of her childhood, and taking her into a foreign State, among total strangers, to pine, and, perhaps, die of a broken heart? Are her feelings and choice entitled to no consideration ? Would not the impression that a great wrong had been committed upon her remain with her as long as life lasted ?

“The proposition,” says-Bishop, “is generally regarded as true, that one who has conducted either well or ill in a particular domestic relation, will conduct the same in another; and so, as a general practice, the court gives the custody to the innocent party, because with such party the children will be more likely to be cared for properly.” 2 Bish. on Mar. and Div. sec. 532. This rule, from the language employed, is subject to certain exceptions, which are not material to this case.

But counsel for appellee say, that “ courts of equity will not only investigate the facts, but will also recognize the legal principle that the right of the father to the custody of a minor child is paramount to that of the mother.”

Courts will recognize the principle whenever it is applicable. This right of the father springs from the obligation of the father, by the common law, to provide for the maintenance of his children. Kent says: “In consequence of the obligation of the father to provide for the maintenance, and, in some qualified degree, for the education of his infant children, he is entitled to the custody of their persons and to the value of their labor and services.” 2 Com. 193. Ho such obligation rested upon Jesse Long. He was fully discharged from it by the original decree; and, besides, how could any such paramount right co-exist with the exercise of the power conferred by the provisions of the sixth section of the divorce act upon the court of chancery? “When a divorce shall be decreed, it shall and may be lawful for the court to make such order touching the alimony and maintenance of' the wife, the care, custody and support of the children, or any of them, as, from the circumstances of the parties and the nature of- the case, shall be fit, reasonable and just.” Whenever a father becomes subject to the jurisdiction of the court, in a proceeding for a divorce, his common law right to the custody of infant children must necessarily yield to the discretionary power over the subject, vested by the statute in the court. This point is expressly decided in the case of Miner v. Miner, 11 Ill. 43. It was there held that, under our statute, the paramount right of the father to the children will not be recognized where a divorce has been granted for his fault or misconduct. See, also, Cowls v. Cowls, 3 Gilm. 435.

In the former of these cases, the court said: “It is apparent from the record that there is some intention on the part of the mother, if allowed to retain the custody of the child, to remove her beyond the limits of the State. This can not be tolerated, and must be guarded against. While the child is given to the mother, the father must not be wholly deprived of its society, but must be allowed access to it upon all reasonable occasions.”

The principle or reason upon which this observation is based does not appear any further than that, by such removal, the father would practically be wholly deprived of the society of the child. By the decree, Alice Long became the ward of the court. The incidents of that wardship, by our law, are: The ward must be protected from ill treatment; must be educated under the court’s superintendence, and her estate must be managed and applied under the like superintendence. The mother here, by the delegation of the court’s authority, was made the guardian of her person, though not of her estate. For that purpose another person was appointed. The fact of her having an estate derived through the decree, would enable the court to exercise its power of superintendence over her education. The guardian of the person of an infant, appointed under the inherent or statutory authority of the court, is, for that purpose, an officer of the court.-Now, while we do not deny the power of the court to permit the ward, under special circumstances, to be taken temporarily out of its jurisdiction, still. it seems to us that to remove a guardian who resides in the county of the court, and appoint one who does not, and is to continue to reside beyond the limits of the State, to whose domicil the ward is to be taken, and there permanently to remain, is for the court to dives't itself of all practical power over the incidents of the wardship, and to virtually abdicate its functions in respect to those incidents. For what control can the court have over one, theoretically an officer of the court, but who resides permanently beyond the limits of the State? What protection can the court give to its ward thus permanently residing; what superintendence over her education; how manage and apply her estate?

But the question has still another aspect. Concede, for the sake of argument, that under certain special circumstances, the court may thus virtually abdicate its .functions, the real question in this case is, whether, in doing so, the court may compel this ward, against her express opposition, to quit this State and submit to be taken, against her will, into another, to there permanently reside. She had arrived at years of discretion when the order appealed from was made. She was upwards of fourteen years of age. She was capable of judging for herself, and had the natural right of determining where she would go. Courts “will consult the inclination of the infant, if it be of a sufficiently mature age to judge for itself, and even control the right of the father to the possession and. education of the child, where the nature of the case appears to warrant it.” 2 Kent’s Com. 195. In King v. Greenhill, 4 Adolp. & Ellis, 624, Littledale, J., said: “Upon general principles of law, the father is entitled to the custody of the children. If they be of an age to judge for themselves, they have a right to determine where they will go; but if they be not, it is thebounden duty of the court to put them in that custody which the law points out.” This was where the common law paramount right of. the father was in force in all its severity.

Here, the question arises under a statutory authority which abrogates that right and requires the court to make such an order as, from the circumstances of the parties and the nature of the case, shall be fit, reasonable and just. Alice Long wras born in this State, owes natural allegiance, and has certain independent personal rights. The laws and customs of this State are her birth-right. It is by those laws and the circumstances of her parents that she became a ward of the court, and, as such, entitled to its protection and superintendence over her welfare. By those laws, she will attain her majority and be entitled to the possession- of her estate in the hands of hpr guardian, and to call him to account when she becomes eighteen years of age. "Whereas, the common law is presumed to prevail in the State to which she is to be taken, and by it she will not be emancipated until she attains the age of twenty-one. It is the English rule, and one founded upon substantial grounds, that, although the court may, under special circumstances, allow an infant ward to go out of the jurisdiction, yet it will never compel his removal. Dawson v. Jay, 3 DeG. Mac. & G. 764.

In that case, the ward was eleven years of age, but was strongly opposed to being taken away. In the course of his opinion, the Lord Chancellor said: “I know of no instance in which this court, when exercising its jurisdiction in taking care of the subjects of this country, has ever so far abdicated its functions as to send a wgrd away to some other jurisdiction. * * * I know of no instance in which it has been done; nay, more, I very much doubt whether any functionary in this country has authority to compel a subject of this country thus to expatriate himself, for that is the truth of what is proposed. * * * I am to deal with the child as the parent would, but subject to the qualification, that I have no right permanently to divest myself of the control over the child, which I should be doing if, in this instance, I were to send her out of the country.”

The modification of the decree is clearly unjust toward the mother. As these parties stand before the court, the father is the guilty, the mother the unoffending, party. He has become a stranger to the child, deprived himself of her society by his own voluntary and very deliberate act. He, judging him by his conduct, must be quite destitute of affection for the child, while the mother is bound to her by the strongest ties. Now, if either of these parties must, in the future, be deprived of the society of the child, which, under these circumstances, ought it to be, the unoffending or the guilty party? The law has such regard for the affections of parents, where they are shown to possess any, that when a divorce is decreed, even the guilty party will not be wholly deprived of the society of the children, but provision will jie 'made for such party to visit them at all reasonable times. It was to avoid the deprivation of this right, that this court, in Miner v. Miner, above cited, so emphatically forbade even the unoffending party taking the ward out of the State. But by the modification of the decree, the innocent parent is to be subject to this deprivation in favor of the guilty one. This would be manifestly unjust, and can not be tolerated. There is no ground shown for this extraordinary concession to a faithless husband, but that of a supposed blind idolatry for wealth, of which he has taken far greater pains to make an exhibition, than of any personal virtues. But how can his wealth affect the question? What has he proposed in that behalf? He introduces Prunty as a witness, who gave it as his opinion that Alice, if permitted to be taken home by her father, will become heir to $80,000 or an $100,000. But does the father, who has the disposal of all this wealth, come into court and propose to make any irrevocable provision for her? Does he offer any solid consideration? Ho. He presents the mere coarse outlines of a picture of wealth,'just sufficient to enable his counsel to suggest expectancies, and nothing more. But what are these expectancies but a mere ignis fatuus to delude the mind of the court? They are necessarily subject, not only to the caprices of this father’s nature, but to those vicissitudes usually attendant upon suddenly acquired fortunes. Is a court of conscience to sacrifice the higher welfare of this child upon such considerations, and especially will it make the strain of absolutely abdicating.its functions in order to do so? Justice forbids it, and the law fully accords with that decision.

The order appealed from will be reversed and the petition dismissed.

Petition dismissed.