State Ex Rel. Bennett v. Anderson , 129 W. Va. 671 ( 1946 )

This proceeding in habeas corpus was brought in the Circuit Court of Raleigh County by the State at the relation of Chester M. Bennett and Sarah A. Bennett against Merl Anderson and Elmer Anderson for the purpose of recovering the custody of Merlene Brady, the eleven year old illegitimate daughter of Merl Anderson, and from a judgment in favor of the petitioners and against Merl Anderson and Elmer Anderson, her husband, this appeal was granted the respondents. There is very little controversy of fact, the only material issue seeming to be whether Merl Anderson had verbally given her daughter to Mrs. Bennett, with whom the daughter was then living.

In the year 1935 the Bennetts, then and now living at Beaver, Raleigh County, in a modern air-conditioned eight room residence and comfortably well to do, saw an advertisement in a periodical called "Market Bulletin" to the effect that a woman with an infant daughter living at Dundon, Clay County, desired a home. After a brief correspondence the Bennetts went to Dundon and there saw Merl Brady and her seven or eight months old daughter. From Dundon they visited the home of Merl Brady's parents in Braxton County, she being then in the neighborhood of seventeen years of age. Having made satisfactory arrangements, they took the mother and child to their home in Beaver, the mother to help in the house work and to receive room and board for herself and child without any regular pay. The arrangement seemed to work very satisfactorily, none of the persons involved being dissatisfied, the Bennetts treating the Brady child as their own and caring for it in every conceivable way.

Bennett was a C. O. brakeman earning about $2,500.00 per year and Mrs. Bennett taught school, making their combined earnings between $4,000.00 and $4,500.00 per year. They were worth in the neighborhood of $40,000.00, and had no children, having married several years before 1935, the actual date of their marriage not appearing in this record.

In 1938, when the child was about four years of age, Merl Brady married Elmer Anderson. They were married in September and she left the Bennett home the latter part of October. The record is not clear as to where they lived the first year of their married life but they seem to have spent the greater part of that year at Red Star in Fayette County, after that settling on Anderson's deceased father's place in which Anderson owned an undivided interest. With the help of the Bennetts netts they had built a three room frame cottage with no plumbing nor toilet, using an out-house jointly with a neighbor. Here three children were born to them, the oldest of whom is now about seven years of age. When proof was taken, they were using two beds for six persons when Merlene stayed with them. The house doubtless will be allotted to them when Anderson's father's farm is partitioned.

After her marriage Mrs. Anderson left Merlene Brady at the Bennett home where she was provided with her own room, went regularly to school and Sunday School, stood well in her classes, and lived generally as a well cared for daughter. Her mother, whose home was not far away, made frequent visits and took her occasionally to the Anderson home with the permission of the Bennetts. On one of these occasions, in August, 1945, Mrs. Anderson was at the Bennett home at suppertime and asked Mrs. Bennett if Merlene could go home with her to milk. She was told that she could, and it was agreed that Merlene would return at about eleven o'clock. That she did not do. Mrs. Anderson stated that that evening she started to bring Merlene back to the Bennett home and that the child told her on the way that she would much rather stay with her. For that reason she did not take Merlene back but turned her car and went to her own home. She went to the Bennett home the next day and informed the Bennetts that it was her purpose to keep her daughter.

Mrs. Bennett states that a short while before the marriage of Merl Brady in discussing her plans for the immediate future she told Mrs. Bennett that she could not take the baby back to her mother and that upon being told that if she gave it to her, Mrs. Bennett, she would take care of it, she agreed to do so. Her subsequent marriage, leaving Merlene in the Bennett home for around seven years and the fact that in the meantime she has given birth to three other children is confirmatory of this verbal understanding.

In a habeas corpus proceeding involving the custody of a child the decision of a lower court will not be disturbed here unless an abuse of sound and reasonable discretion appears from the record on appeal. Connor v. Harris, 100 W. Va. 313,130 S.E. 281. The welfare of the child controls and since that welfare is not only its material well being, but rests largely upon the manner and spirit with which its young life is cultivated, the court having the more intimate opportunity to observe, should reach, and does reach, a more sound conclusion than that of a court influenced only by printed pages. We are of the opinion that the order of the Circuit Court of Raleigh County shows no abuse of sound and reasonable discretion and therefore must be affirmed.

The respondents below, appellants here, in the main depend upon the case of Pierce v. Jeffries, 103 W. Va. 410,137 S.E. 651, which holds that the mother of an illegitimate child who has not abandoned it, nor by contract, express or implied, parted with its custody and care, may recover its possession in habeas corpus. The circumstances of the Pierce case were exceptionally dramatic. A young woman of twenty-three left the home of her father, who was not conscious of her condition, and went to Clarksburg for the purpose of giving birth to a baby. After the birth of the baby she procured a position in Clarksburg and employed a nurse to care for it. She lost the nurse and decided that she would secretly leave the child on her father's doorstep. This she did but her parents, ignorant of the child's identity, arranged for the child to live with neighbors. The mother had returned to Clarksburg and did not learn that her parents were not caring for her baby for several weeks. When she did, she brought habeas corpus and this Court reversed a judgment denying her relief. The difference in the circumstances in the case at bar and those of the Pierce case is quite apparent. Under the principle there laid down we believe that the judgment of the lower court should be sustained because the relators contend and testify that Mrs. Anderson had agreed to give them the child immediately prior to her marriage. This she denies. Issues of fact are to be decided here so that the finding of the lower court will be sustained unless doing so is against a clear preponderance of the testimony. Here we do not believe that it is.

As to the welfare of the child, considering only its material aspects as shown by this record, we believe it is quite clear that Mr. and Mrs. Bennett are and will be in a position to do much more for it than Mr. and Mrs. Anderson. A detailed comparison would seem rather harsh and believing that we are dealing with feelings of some delicacy on both sides of this record, we do not wish to comment other than to say we do not believe that the trial judge was unduly influenced by this element of the case.

For the foregoing reasons the order of the Circuit Court of Raleigh County is affirmed.

Affirmed.