Edwards v. Edwards , 288 S.W. 634 ( 1926 )

W. K. Edwards sued his wife, Ruth Edwards, for divorce. The parties had two children, a boy and a girl The boy was born February 23, 1921; the girl, May 11, 1922. Mrs. Edwards resisted the divorce, and asked that the custody of the children be awarded to her. The paternal grandparents of the children intervened in the suit, setting up that the mother was not a suitable person to have the custody of the children, and asked that their custody be awarded to them. The plaintiff dismissed his suit for divorce.

Upon the issue between interveners and the mother, Judgment was rendered awarding the custody of the boy to the interveners, and custody of the girl to the mother. Ruth Edwards appeals. She has filed numerous assignments of error and a very lengthy brief, but the only question at issue is the correctness of the court's action in denying to her the custody of her son and awarding same to the interveners. The determination of this question calls for no extended discussion.

The trial court found that it was "to the best interest" of the boy that it be placed in the care and custody of its grandparents, and as to the girl, on account of her tender age, it was to her best interest, "at present, at least," that she be placed in her mother's custody. In cases involving the care and custody of a child, its best interest is of paramount importance. The discretion with which the trial court is vested in the determination of that question is not absolute, but must be exercised in accordance with the rules of law. Walker v. Jones,1 Ga. App. 70, 57 S.E. 903; Ann.Cas. 1914A, 761. In State of Texas ex rel. Wood v. Deaton, 93 Tex. 243, 54 S.W. 901, Judge Brown said:

"God, in his wisdom, has placed upon the father and mother the obligation to nurture, educate, protect, and guide their offspring, and has qualified them to discharge those important duties by writing in their hearts sentiments of affection and establishing between them and their children ties which cannot exist between the children and any other persons. Especially is this the case with the mother. Parents cannot divest themselves of the obligation imposed upon them by their Creator, but when they become disqualified for a proper discharge of such duties, civil government has the right, in the interest of the child, to provide for its proper nurture and education. When the parent has parted with the possession and control of his or her child, and seeks to regain that possession through the courts, it becomes the duty of the court, in a proper case, to protect the child against the evil results that may flow to it from an improper direction, through incompetent or disqualified parents. The rule which should guide the court is aptly expressed in the case of Weir v. Marley [99 Mo. 484, 12 S.W. 798, 6 L.R.A. 6721, which we have quoted, and is supported by the case of State v. Richardson, 40 N. H. 275, in this language: ``The discretion to be exercised is not an arbitrary one, but, in the absence of any positive disqualification of the father for the proper discharge of his parental duties, he has, as it seems to us, a paramount right to the custody of his infant child, which no court is at liberty to disregard. And while we are bound also to regard the permanent interests and welfare of the child, it is to be presumed that its interests and welfare will be best promoted by continuing that guardianship which the law has provided, until it is made plainly to appear that the father is no longer worthy of the trust. The breaking of the ties which bind the father and the child can never be justified without the most solid and substantial reasons. Upon the father the child must mainly depend for support, education, and advancement in life, and as security for this he has the obligation of law as well as the promptings of that parental affection which rarely fail to bring into the service of the child the best energies and the most thoughtful care of the father. In any form of proceeding, the sundering of these ties will always be approached by the courts with great caution, and with a deep sense of responsibility.' The rule laid down is sustained by the authorities, of which we cite the following: Richards v. Collins,45 N.J. Eq. 286 [17 A. 831, 14 Am. St. Rep. 736]; Miller v. Wallace,76 Ga. 479 [2 Am. St. Rep. 48]; State v. Banks, 25 Ind. 500; Rust v. Vanvacter, 9 W. Va. 612; State v. Libbey, 44 N. H. 324 [82 Am.Dec. 223]; Moore v. Christian, 56 Miss. 408, 31 Am.Rep. 375; Chapsky v. Wood,26 Kan. 653 [40 Am.Rep. 321]; in the Matter of Bernice S. Scarritt,76 Mo. 577 [43 Am.Rep. 768]. The facts found do not establish with that certainty which the courts must require that the interest of the child, Austin Dillard, or of society itself, demands that he shall be taken from his mother and continued in the possession of another."

In that case the judgment of the district court and the judgment of affirmance by the Court of Civil Appeals were reversed, and the custody of the child was awarded to the mother.

In view of the award of the little girl to the mother, it cannot be assumed the court considered her as laboring under any disqualification to properly discharge her duty to the boy. If the mother was a fit person to care for her daughter, she was by the same token a fit person to care for and rear her son. The trial court seems to have attached some importance to the tender age of the little girl in awarding her custody to the mother. Upon the date of the trial the girl lacked only a few days of being 3 years old; the boy was only fifteen months older. We can see no reason why this slight difference in the ages of the children should have had bearing upon the issue. Furthermore, upon an examination of the whole evidence we are convinced that it does "not establish with that certainty which the courts must require that the interest of the child, or of society itself, demands that he should be taken from his mother and continued in the possession of another."

It will serve no good purpose to state the evidence disclosed by the record. It is sufficient to say that in the opinion of this court, after full and mature consideration of the same, it fails to show that this mother is disqualified or incompetent to properly discharge her full duty to her son, as well as her daughter; that it is to the best interest of the son that he receive the care and affection which only a mother can give him, and which his mother is fighting to bestow upon him.

The judgment decreeing the care and custody of the minor, William Knox Edwards, Jr., to the interveners, is reversed, and here rendered in favor of the appellant. In no other respect is the judgment of the lower court disturbed.

Reversed and rendered.