Hornbeck v. Hornbeck , 316 Mich. 208 ( 1946 )

I am not in accord with the opinion of Mr. Justice BUSHNELL insofar as it relates to the custody of the children for reasons hereinafter stated.

The parties were married November 10, 1942, and later moved to the home of defendant's mother on a farm near Edmore, Michigan. As a result of the marriage two children were born, Charlene M. Hornbeck born May 1, 1943, and Ralph J. Hornbeck born in April, 1945. Defendant is 14 years older than plaintiff. He lives on a farm with his mother and a younger brother. After the separation, plaintiff went to live with her mother and father who also live on a farm near Lakeview, Michigan. Living at this home is a brother of plaintiff.

The record clearly sustains the trial judge in the granting of a decree of divorce to plaintiff by reason of the several acts of cruelty committed by defendant. The report of the friend of the court shows that the homes of plaintiff's parents and defendant's mother, insofar as the physical surroundings are concerned, are each suitable for children to live in.

The substance of the trial court's opinion was that plaintiff is a proper person to have the care and custody of the younger child; and that defendant is a fit person to have the care and custody of the older child, despite the fact that defendant's treatment of plaintiff was such that she is entitled to a decree of divorce.

Section 12852, 3 Comp. Laws 1929 (Stat. Ann. § 25.311), provides in part:

"That in case of the separation of husband and wife having minor children, the mother of said children shall be entitled to the care and custody of all such children under the age of twelve years, and the father of such children shall be entitled to the care and custody of all such children of the age of twelve years or over."

In Liebert v. Derse, 309 Mich. 495, we said:

"We recognize the long-established rule that the best interest of the child is of paramount importance, Martin v. BenzieCircuit Judge, 200 Mich. 549; In re Gould, 174 Mich. 663, and that it is our judicial duty to safeguard his welfare and care,Bird v. Bird, 308 Mich. 230. However, we never have interpreted such rule so as to deprive a parent of the custody of his or her child, unless it was shown that the parent was an unsuitable person to have such custody."

In Coyle v. Coyle, 221 Mich. 76, we said:

"A girl of such tender years (about 7) should have the care and love of her own mother, and if she is a suitable mother the statute gives her this right."

See, also, Burkhardt v. Burkhardt, 286 Mich. 526.

The complaint made against plaintiff is that she neglected the care of the older child. The principal complaint is that plaintiff failed to keep the baby's bed and personal clothing dry, failed to give the baby proper baths, and failed to give the baby its proper formula for feeding. There is some testimony to support these claims, but we must have in mind that a child of tender years is liable to have its bed and clothing wet at unexpected moments. It is not at all improbable that the child could have had more personal attention from her mother if plaintiff had not been required to do the barnyard chores and run the tractor while she was carrying her second baby. The result of the decree is a separation of two young children who should be raised together under the guidance of the mother and with the love and affection that only a mother can give.

In coming to these conclusions, I have in mind that the paternal grandmother is a woman of advanced years; that plaintiff's health has greatly improved since she separated from her husband; and that plaintiff has a good home in which to rear the children.

A decree should be entered in the Supreme Court giving plaintiff custody of both children and the cause remanded for a determination of the amount that defendant should pay for the support and maintenance of both children. Plaintiff should recover costs.

BUTZEL, C.J., and NORTH, and DETHMERS, JJ., concurred with SHARPE, J.