Cooke v. Cooke , 67 Utah 371 ( 1926 )

In this jurisdiction, in actions involving the right to the custody of minors — especially children of tender years — it has become elementary that the best interests of the child, present and future, shall be the guiding star in controlling the court's conclusions. Stanford v. Gray, 42 Utah, 228, 129 P. 423, Ann. Cas. 1916A, 989; Hummel v. Parrish, 43 Utah, 373, 134 P. 898;Dorsey v. Dorsey, 52 Utah, 73, 172 P. 722; Farmer v.Christensen, 55 Utah, 1, 183 P. 328; Kurtz v. Christensen,61 Utah, 1, 209 P. 340; Alley v. Alley, ___ Utah, ___,247 P. 301 (not yet officially reported). It has not heretofore been considered necessary or important in cases of this nature to indulge in any technical reasons to exclude testimony found in the record in arriving at the court's conclusions.

In this case a referee was appointed by this court to take the testimony and make findings upon the controverted issues of fact involved. Among others of the referee's findings is the following:

"I find that James Henry Cooke, the plaintiff, is a man of good moral character and social and financial standing, and that he is a fit and proper person to have the custody of the child in question. On the witness stand he impressed me as being absolutely truthful. I find untrue the allegations that he is addicted to the use of narcotics or the excessive use of intoxicating liquors; that he attacked some of the defendant's female relatives or was familiar with a servant; and that he burned an automobile for the purpose of defrauding an insurance company; and I find untrue the allegations of misconduct contained in the following parts of Mrs. Cooke's answer: The third paragraph on page 3, and all of page 4; the paragraph beginning on page 6 and down to the first paragraph beginning on

"The plaintiff is willing and able to give the child a good home, under the charge of his sister, and he is well able financially to maintain and educate her."

That finding is abundantly supported by the testimony. Indeed, there is little, if any, reliable evidence in the record to support a contrary finding. The only evidence that casts any reflection upon the character of Mr. Cooke is that of the defendant Mrs. Cooke, her mother, Mrs. Bowman, now Mrs. Scott, and possibly a sister of Mrs. Cooke. Sixteen or more disinterested professional and business men gave their unqualified statements under oath as to the high character of plaintiff. These witnesses had known plaintiff personally and professionally and in business for many years. Some of them knew his father in his lifetime. Many of them knew his mother and sister, at whose home the child would be cared for if given into the custody of its father. Without a dissent they stated that, if the child were placed in the custody of its father and in the home in charge of the father's sister, it would have a home of culture and be surrounded with refinement and comfort. Two or more women who had known the family of Mr. Cooke for many years testified to the high character of his mother and sister and stated that in their judgment their home would be an ideal home for the little girl and that the surroundings there would be ideal for any little girl such as the one whose custody is in controversy here. The testimony of those witnesses furnished all the support necessary for the referee's finding that —

"The plaintiff is willing and able to give the child a good home under the charge of his sister, and is well able financially to maintain and educate her."

These witnesses are residents of the city of Toronto, province of Ontario, Dominion of Canada. That city was the marital home of plaintiff and defendant and both are natives and citizens of the province of Ontario. The witnesses knew the character of plaintiff and know his home surroundings by many years of everyday contact. Their testimony was not simply statements of members of plaintiff's family. On the contrary, the only relative who testified on behalf of plaintiff was a brother-in-law of the defendant, a Mr. Watts, who had married Mrs. Cooke's sister.

Six witnesses from the province of Ontario, most of them from the city of Toronto, testified to the good character of the defendant. Four of those witnesses were relatives of defendant. Two of them were her sisters. One was a brother. Another was an aunt. The other witness, a Mrs. Gertrude Langley and her son, were not relatives. The defendant resided in Toronto most if not all of her life. It is significant that out of all her acquaintances she was able to have but two witnesses not relatives testify concerning her character. It is true that witnesses from Nevada testified in her behalf and as to her character. It should be remembered, however, that Mrs. Cooke became a so-called resident of the state of Nevada only in January, 1925, and that she resided there but nine months and much of that time under an assumed name. It is merely a truism to say that these witnesses could not and did not know either her character or her fitness to have the custody of the child as witnesses would who had seen her grow up and who had known her from choldhood. True, the referee found that she is a fit and proper person to have the care and custody of the child; that she is a woman of intelligence and refinement; and that she and the child are devotedly attached. The testimony undoubtedly supports the statement that the mother is devotedly attached to the child and that the child is fond of its mother. We are not, however, required, neither ought we, to determine the future custody of this little girl on the mother's affections nor on the child's affections. That may be a proper and even an important element, but it is not the only nor the controlling one. The present and future interests of the child should be the deciding factor.

The order that the referee recommended would seem to indicate that he entertained some doubt as to the wisdom of giving the custody of this child to defendant. The judgment of this court indicates rather conclusively that the majority of the court entertain the same doubt. The recommendation of the referee is that the child be awarded to the defendant for a probationary period and that she be required to give security that she will not remove the child from the jurisdiction of this court. Apparently the order of this court not only follows the recommendation of the referee, but goes further in that it provides:

That "within 10 days after the filing of this opinion the defendant's mother and her husband, Mr. and Mrs. Frank B. Scott, shall file with the clerk of this court their written acceptance of all the duties and obligations to be observed and performed by them or either of them mentioned in this order."

If Mrs. Cooke, in the light of the testimony, is entitled by reason of her own fitness to have the custody of the child and to give the child a home, then she should be awarded the custody of the child. If she is not entitled by reason of her own fitness, then the custody should be awarded to its father, who is admittedly a fit and proper person to have the custody of the child. Defendant does not claim to be a permanent resident of Utah, nor is she at all a citizen or resident of Utah. Her residence in Utah in the record is referred to as being "temporary residence" only. What legal right has the mother of the defendant or her recently acquired husband to the custody of this child, or what legal duty to feed, clothe, and educate it is either of them under? In effect the order of this court charges the mother of the defendant and her husband with the duty not only of supporting the child, but of keeping it within the jurisdiction of this court. Their rights to or qualifications for the custody of the child are not in issue in this proceeding. No testimony was taken as to Mr. Scott's financial ability or other qualifications which would entitle him to be given the custody of the child. In fact, Mr. Scott is a stranger to this proceeding. It does appear that he made a statement that he would give the defendant and her child a home, but other than that he is in no way connected with this action. Mr. Scott's fitness for the custody of this child is not an issue in this case. No such issue was presented by the pleadings. No testimony was taken respecting his qualifications. Therefore the court is not advised as to his ability or his qualifications. The court, therefore, has not sufficient information upon which to found an order intrusting the custody of this child to him. The plaintiff, Mr. Cooke, had no opportunity to question or investigate Mr. Scott's fitness or his ability to give the child such a home as under the facts made to appear in this case is the child's right. It is wholly indefensible to contend that Mr. Cooke is lacking in any qualification necessary to entitle him to have the child. Why, then, give it to strangers? Is it the purpose of this court to again review this question in the event that Mrs. Cooke is derelict in her duty or unable to care for the child and then to modify or change its order and award the care and custody of the child to its father? Or does the court contemplate at all hazards keeping this child within the jurisdiction of this court even to the extent if need be of awarding its custody to some absolute stranger not only to the proceedings, but to the child itself? The order of the court is:

"The custody of the child until further order of this court is awarded to and left with the defendant, provided that she maintains and keeps the child at her mother's residence and under her care, or in some other suitable and proper home, in Salt Lake City, and keeps the child within the jurisdiction of this court and holds herself and the child amenable to the further orders and processes of this court."

Apparently the order of the court not only is that the child must be kept within the jurisdiction of the court, but must be kept within the boundaries of a particular municipality within the jurisdiction of the court, namely, Salt Lake City. Just what virtue attaches to Salt Lake City not equally existent in other parts of the court's jurisdiction is left somewhat in doubt.

There is, however, in my judgment other and very conclusive reasons why this court should award the custody of this child to the plaintiff. Both plaintiff and defendant are citizens of the province of Ontario, city of Toronto, Dominion of Canada. Their rights growing out of their marital relationship and their rights to the custody of this child were in litigation in the courts of that province at the date the child was brought into the United States. An action for alimony was pending in the superior court of the province of Ontario instituted by the defendant here, plaintiff there, against the plaintiff here, defendant there. The testimony taken on the hearing in that action is part of the record of this proceeding. That testimony by the referee was held not to be admissible to establish any controverted fact in issue here, and this court rules to the same effect. Looking at the judgment roll of that case alone, which was properly certified, there is no other conclusion permissible or reasonable than that the Canadian court in that action had jurisdiction of the parties and of the subject-matter and that the said court found the defendant guilty of such conduct as ought to deprive her of any right to claim the custody of this child. In the statement of claim filed with the clerk of the Canadian court in that action, which is analogous to a complaint under our practice, Mrs. Cooke, who was plaintiff therein, charged her husband, the plaintitff here, with certain acts of neglect and cruelty and with refusing to live with her, and sought the judgment of that court compelling her husband to pay alimony. Mr. Cooke, defendant there, plaintiff here, in his statement of defense, in the fifth paragraph thereof, said:

"After this action [in a previous divorce proceeding] on the part of the private bills committee, the plaintiff [Mrs. Cooke] offered to return to the defendant [Mr. Cooke] and live with him as his wife, which offer the defendant rejected, and the defendant admits his liability to pay alimony to the plaintiff in accordance with his means (which are not as stated by the plaintiff) if the defendant does not at the trial of this action establish to the satisfaction of this honorable court that the plaintiff has been guilty of adultery in some at least of the following instances. * * *"

At the conclusion of an 8-day hearing Judge Orde, who had presided and heard the testimony, entered an order dismissing the action. The fifth paragraph of the statement of defense above quoted tendered the real issue in that case. No other deduction is permissible from the issues presented by the pleadings than that the defendant in that action, Mr. Cooke, supported that allegation in the fifth paragraph of his statement of defense by evidence convincing to the court of its truthfulness.

While it is true that the majority opinion excludes the the testimony taken at the hearing and refuses to consider it as having any weight in determining the issues here, it is nevertheless stated in that opinion that there was some indirect testimony given in that action tending to show indiscretion on the part of Mrs. Cooke. If we are permitted to refer to that testimony at all and consider it, as the court evidently did when it stated that there was some testimony showing that the defendant had been indiscreet, then I fully agree with the statement contained in a decision rendered by Hon. J.J. Trabucco, of the superior court of the state of California in and for the city and county of San Francisco, rendered on Tuesday, September 29, 1925, disposing of a habeas corpus proceeding involving the right to the custody of this same child which he had heard or tried. In that statement Judge Trabucco said that he had examined the evidence and testimony taken and considered by the Canadian court and that after so doing he had reached the conclusion that the evidence taken in that case supported the judgment of Judge Orde that the defendant had been guilty of the acts charged in the fifth paragraph of the statement of defense by her husband, not only by a preponderance of the evidence, but to a moral certainty and beyond a reasonable doubt. The California court in that action, gave the custody of the child to its father. That judgment of a sister state is still in force and effect.

At the date the little girl, whose custody is in controversy here, was removed to the United States from Canada, to wit, January 14, 1925, there was pending in the Canadian court a habeas corpus proceeding to determine the right of the plaintiff therein, Mr. Cooke, to have the custody of this child. That matter had been in the court for some months. Both the plaintiff and the defendant here had appeared in that action. After the departure of the defendant Mrs. Cooke from Canada, and after her entrance into the United States with her mother and the little girl, a decree was obtained in the action awarding the custody of the child to the father. It is true that the hearing of the action, shortly after its institution, had been postponed indefinitely, but Mrs. Cooke had given her personal undertaking to the court there to keep the child within the jurisdiction of that court until the controverted question as to which of them was entitled to the custody of the child had been determined. Mrs. Cooke's counsel had likewise given his undertaking to the court that the child would be so kept within the jurisdiction. The attorney representing Mrs. Cooke in that action died before the action was called for hearing. Whatever irregularity there may have been in obtaining the decree awarding the custody of the child to the father it is without question that the court had jurisdiction of the parties. They had both appeared in court and been represented by counsel. It is undisputed that the mother of defendant, now Mrs. Scott, on the evening of January 14, 1925, the very day that the testimony was closed, the arguments made, and the judgment entered in the alimony action, took the child across the border and came into the United States. The defendant followed a day or two afterwards. Immediately thereafter they migrated to Reno, Nevada, and took up their residence there under an assumed name. In December, 1925, the defendant, with her mother and the child, came to Salt Lake City.

The principle or rule of law enunciated by the Court of Appeals, First District, Cal., in Ex parte Wenman, 33 Cal. App. 592, 165 P., at page 1025, expresses what, in my judgment, should be controlling in the present action. In the Wenman Case the court said:

"It is shown by the record before us that the minor was brought to this state by the respondent in direct violation of a decree of a court of competent jurisdiction of a sister state awarding its custody to the petitioner. The child's presence here is founded on a tort or offense against the law, and it is not made to appear that since the entry of the decree under which the petitioner is now claiming he has become an unfit or unsafe person to have the care and control of his minor child, and it is admitted, at least tacitly, by the respondent in her return that she could not establish her right in the courts of Connecticut or New York, to the relief which, 3,000 miles away from the place where the difficulties between the parties arose, she hopes to get in the courts of this state. Under these circumstances we think there is no question but that a due respect for the orderly administration of the law and according to the doctrine of comity among sister states requires this court to recognize the right of the petitioner under the decree of the court of the state of Connecticut hereinbefore referred to, to the custody of Byrd Wilson Wenman, Jr., the said minor."

The judgment of the Canadian court may not be protected by the full faith and credit clause of the Constitution, but it is a judgment of a court of competent jurisdiction in a country where the parties hereto are citizens and where they had their residence. The procedure in the courts of the province of Ontario, Canada, is not materially different from our own procedure. The child, whose custody is in controversy here, was removed from the province of Ontario into the United States in disregard of an undertaking entered into by the mother of the child with the court and was so removed at a time when the right to the custody of the child was in litigation. It was likewise removed on the very day that judgment was entered in the alimony action supporting the contention made by Mr. Cooke, the father of the child. The credit due from the courts of our country to the judgments of the courts of a friendly power in determining the rights of citizens of that power ought to be, if not conclusive, very persuasive upon the courts of this country.

Much importance is given by the majority opinion to the judgment of the Nevada court in the divorce proceeding instituted in that state by Mrs. Cooke against her husband and to the Nevada court's findings on the rights of the plaintiff and defendant to the custody of the child, and with reference to their qualifications and fitness for such custody. The service of summons in that divorce action was had by publication and not by personal service upon Mr. Cooke within the state. True, Mr. Cooke appeared specially and objected to the jurisdiction. He did not appear generally. The record of the proceedings had in the Nevada court is part of the record in this action and the record speaks for itself. This court is entitled to determine whether from that record it appears that Mr. Cooke appeared generally or specially. 34 C.J. 1140. As I have pointed out, Mrs. Cooke was a resident of the state of Nevada for the extensive period of nine months and a part of that time under an assumed name. Furthermore, during that period of nine months, to wit, on July 7, 1925, in a verified answer to the petition in habeas corpus proceedings at San Francisco, in the state of California, she said:

"Your petitioner herein [Mr. Cooke], your respondents [Mrs. Cooke and her mother], and the said minor child, Shirley Cooke, are and each of them has been for many years last past citizens and residents of the city of Toronto, province of Ontario, Dominion of Canada," etc.

I submit that the Canadian court, a court of jurisdiction where both plaintiff and defendant are citizens, and after hearing testimony offered by both parties, was better able to determine which of the parties was best qualified and fitted as well as best entitled to have the custody of the child, and that the judgment of such court ought to have more weight than the judgment of the Nevada court, where admittedly it was a default judgment, and that Mr. Cooke was not present and did not offer any evidence. Greater weight should be given to the judgment in the habeas corpus proceedings in the Canadian court than should be given to the Nevada divorce decree or findings respecting the custody of this child. The Nevada court did not, as I understand the authorities, have jurisdiction to enter judgment upon the qualifications or fitness of Mr. Cooke to have the custody of his child. Any judgment respecting his qualifications or fitness would be a judgment in personam and would affect him personally, if valid. The court had constructive service and did not have personal service. Any judgment attempted to be entered respecting his qualifications or fitness was a nullity, outside of the jurisdiction of the court entering such judgment. DeMeli v. De Meli, 120 N.Y. 185, 485, 24 N.E. 996, 17 Am. St. Rep. 652; note to Averbuch v. Averbuch, Ann.Cas. 1916B, 875.

If, however, there were nothing else in this record save the conduct of the defendant since she came to Salt Lake City, it would be a serious question. In my judgment, whether the court ought not to award the custody of this child to the father in view of his admitted ability to give it a desirable home. It seems that defendant, after arriving in Salt Lake City, was receiving somewhat ardent attentions from a married man, Mr. Earl Welsh. It is also quite evident from the testimony that Mrs. Welsh, the wife of Mr. Earl Welsh, was not particularly pleased with these attentions to the defendant by her husband. She therefore requested and received the aid of a deputy sheriff of Salt Lake county to spy out and ascertain the movements of Mr. Welsh and the defendant. What the deputy ascertained by reason of his efforts to observe the movements of Mr. Welsh and the defendant is stated in detail in the majority opinion. They were alone, in an unfrequented part of the city, between the hours of 2 and 3 o'clock a.m. Their excuse for being there was that they were desirous of viewing the lights of the city and went to this advantageous point to so view the lights of the city. Mr. Welsh at that time was a married man and this fact was known to the defendant. Mrs. Cooke was a married woman. She voluntarily accompanied Welsh on that evening and voluntarily remained with him alone on that ride in a lonely place during those early hours in the morning. The defendant and Mr. Welsh had known each other for only a few months at that time. I have read the testimony taken before the referee with more than usual care and I confidently assert that there is not a scintilla of evidence in the record to support the referee's finding that Mrs. Cooke "has been harassed for many months by" Mr. Welsh, nor that Mr. Welsh "has taken advantage of her condition and forced his attentions upon her." Nor is there any evidence that the attentions given her by Welsh were not welcomed by her. It should be remembered here that the defendant, as is set out in much detail in the majority opinion, had been charged in the Canadian court with adulterous acts and by reason thereof it was sought to take from her the custody of the child. In the light of those facts her conduct immediately after arriving in Salt Lake City is indeed most inexplicable if, as is claimed, this early morning ride at 2 a.m. was for pleasure only.

There is no testimony that the defendant is able to furnish this little girl with a home or the comforts of a home. Admittedly she is without funds and has no property of her own. Her mother, with whom she is now residing, has recently married a practicing attorney at law of this city. The mother was a widow at the time of her departure from the Dominion of Canada. The testimony is undisputed that the mother is without property and has no means of her own with which to support either herself or her daughter, or her granddaughter. There is no evidence of the financial ability of Mr. F.B. Scott, the husband of defendant's mother, to furnish this defendant and her child a home or surround them with any of the comforts of life or to educate the little girl as she should be educated. The defendant is admittedly without education. She does not even have a high school education. She has no occupation or business of any kind. There is no showing that she can support herself and the child by any form of labor or kind of work for which she is adapted. There is some testimony that she has a rich aunt and that that aunt has contributed some to their support since they hastily, surreptitiously, and clandestinely left their native land. The little girl in this case is entitled to be supported by her father or mother and not by charity. Her father is able and willing to give her that support. This little girl, as every little girl, is entitled to a home and a home where she can have such training as her parents are able to provide. That is her right. As I look upon this record, by the judgment of this court she is being deprived of that right. The father testified that it is his wish and desire to educate this child and give her every opportunity to become a cultured and useful woman.

Some statement is made in the majority opinion to the effect that the child is a comparative stranger to her father and that the plaintiff testified that the child does not know him. I have found nothing in the record justifying that statement. I do not, however, say that the record does not support the statement, but I do say that, after a most careful reading of the record, I am convinced that, if it be a fact that the child does not know its father or is a stranger to him, it is because the defenant, wrongfully and contrary to her agreement and undertaking with a court of her native land, clandestinely removed the child from its home land and has ever since kept it separate and apart from its father.

I appreciate the fact that the wealth of a parent ought not be the controlling factor in the determination of the right of that parent to the care, custody, and control of an infant child. Nevertheless, it is an element to be taken into consideration by the court when all of the facts are presented to it and it is called upon to determine where the custody of a child should be. The conduct and acts of the defendant, considered in the most charitable view that ought to be taken of such conduct and acts, considered in connection with the ability and fitness of the father to care for the infant, and especially considering the judgments of courts of other jurisdictions which have had occasion to consider this matter, should induce this court to grant the petition of and award the custody of the child to its father. I cannot at all understand just why the court in practical effect is awarding the custody of this child to its grandmother and stepgrandfather in face of the admitted fact that the father is in every way qualified morally and financially to have its custody.

What of the little girl ten years hence? Does anyone believe, or can anyone believe that her chances for an education, for a comfortable home at that stage in her life when she will need guidance, will or can be furnished her by her mother as it would be by the father? If the mother of this child, knowing all the facts as she does, were unselfishly considering the best interests of this child, present and future, in my judgment she would not refuse to let the father have the child. I doubt if she would refuse if she were removed from the influence of her mother.

If I did not feel so strongly that the judgment of this court is contrary to the great weight of the evidence and all the facts and circumstances in the case and that a grave injustice is being done the little girl thereby, I should not have written this dissent.