Opinion
5 Div. 794.
February 11, 1930.
Appeal from Circuit Court, Tallapoosa County; W. B. Bowling, Judge.
Petition of Mrs. Clyde Gill for habeas corpus to Mrs. Belle Holdridge, for custody of children. From an order denying the relief prayed, petitioner appeals. Reversed and rendered.
Pruet Glass, of Ashland, for appellant.
This is a proceeding at law and not in equity. Blackman v. Moore, 206 Ala. 335, 89 So. 745; Hymes v. State, 209 Ala. 91, 95 So. 383. The mother, on the death of the father, is entitled to the custody of infant children, unless it is clearly shown that their morals, safety, and interest require their removal. Striplin v. Ware, 36 Ala. 87; Findley v. Jones, 214 Ala. 325, 107 So. 840; Moses v. Faber, 81 Ala. 445, 1 So. 587; Children's Aid Soc. v. Davis, 211 Ala. 344, 100 So. 325; Cook v. Echols, 16 Ala. App. 607, 80 So. 680; Morris v. Morris, 19 Ala. App. 217, 96 So. 374; McDonald v. Watkins, 18 Ala. App. 131, 80 So. 306; Black v. Montgomery, 17 Ala. App. 245, 84 So. 308; Montgomery v. Hughes, 4 Ala. App. 249, 58 So. 113; Powell v. Johnson, 213 Ala. 259, 104 So. 525.
S. J. Darby, of Alexander City, for appellee.
The record fails to show a compliance with Chancery Rule 75, and the judgment must be affirmed. Thomas v. Thomas, 212 Ala. 85, 101 So. 738; Blackburn v. Moore, 206 Ala. 335, 89 So. 745; Hymes v. State, 209 Ala. 91, 95 So. 383; Winfield Lbr. Co. v. Southern Mfg. Co., 209 Ala. 614, 96 So. 756; Conner v. State ex rel., 211 Ala. 325, 100 So. 474. Appellant's forcible interference with the appellee's custody of the children pending the appeal is contempt of court, and the appeal should be dismissed or the judgment affirmed. Burns v. Shapley, 16 Ala. App. 297, 77 So. 447. Affirmance of the decree will leave the custody of the children where they were at the beginning of the suit. Ex parte Roberts, 17 Ala. App. 538, 85 So. 871. Right of a parent to custody of the child may be forfeited by misconduct or misfortune. Neville v. Reed, 134 Ala. 317, 32 So. 659, 92 Am. St. Rep. 35. The welfare of the child is the paramount consideration. Brown v. Brown, 2 Ala. App. 461, 56 So. 589.
It appears that petitioner (appellant), the wife of one Will Gill, deceased, at the time of the filing of this petition, was living separate and apart, though not divorced, from her husband, at the time of his death; that she is the mother, by said Will Gill, of Willie Jackson Gill, whose age at the time of the filing of this petition was eight years, and of Oliver Jasper Gill, whose age at said time was six years; that the custody of the two minor children named, had been, subsequent to the date of the separation of petitioner and the said Will Gill, in a proper legal proceeding, the details of which are not shown by this record, awarded to the said Will Gill; that he, for some time prior to his death, had placed, and kept, said minors with his sister, the respondent; that promptly after the death of Will Gill this petition was filed with Hon. W. B. Bowling, judge of the Fifth judicial circuit, praying a writ of habeas corpus directed to the respondent named above, all, etc., to the end that the custody of said minor children might be awarded to petitioner.
From an order by said judge denying the petition, and dismissing same, this appeal is prosecuted. Code 1928, § 3238.
So far as we can see, the appeal is taken, and prosecuted, in substantial compliance with the terms of the Code section just cited, and the motion, by appellee, to dismiss same is denied.
The entire evidence adduced upon the hearing below, has been read, and carefully, we may say very earnestly, considered, by the full court. We do not believe it would be helpful to undertake a detailed discussion of same. Let it suffice to say that it is our opinion that in so far as the moral character of the parties, and the willingness, and financial ability to do so adequately, of them, to rear and educate said children, are concerned, the evidence, giving all due deference to the superior advantage of the learned judge hearing the petition, by virtue of his seeing and hearing the witnesses testify, makes what we may call a practical "stand-off." In other words, there is about as much to be said, from the evidence, in the particulars noted, for one party as for the other. In the home of each, it appears, good moral surroundings will prevail.
In this situation, our duty is plain. The books abound with cases dealing with the general subject here necessary to be dealt with. We will not undertake to collect them. Perhaps as good a one as another to illustrate the decision we have reached, and one in which is cited a number of others bearing on the same subject, is the case of Cook et al. v. Echols, 16 Ala. App. 606, 80 So. 680, 681, from the opinion in which we quote and adopt as our own language, the following: "The laws of nature teach us that the relation of parent and child is sacred, that the welfare of the child is conserved by the cultivation and promotion of that affection which should exist between parent and child, and that as a general proposition no one can watch over the growth and development of the child as a loving father or mother can and will. Consequently it is recognized that, other things being equal, the parent is not only under the sacred duty of providing and caring for his child, but that, in correlation of that duty, the parent is entitled to the care and custody of his child, unless some good cause is shown why he should not have such care and custody, not merely as a matter of right, but because the law presumes that the best interests of the child are thereby subserved."
It is therefore here adjudged that the order appealed from is reversed, and a judgment here rendered awarding the custody of the children named above, to the petitioner.
Reversed and rendered.