Dorothy U. Hunter has asked that we review the Court's action in refusing to award her the custody of an only child, Robert E. Hunter Jr., now six years of age.
The child's father, prior to his marriage to petitioner, and later, was enlisted as a soldier in the regular U.S. Army. Petitioner lived with her parents at Chattanooga, Tenn., until her mother's death in 1933. She continued to reside with her father, Z. R. Umbarger, until 1937. In 1925 Mrs. Hunter became seriously ill. It is contended by respondents that she did not fully recover, and that because of physical and mental handicaps she is not a proper person to care for the child. The Chancellor took this view. We determine whether he was supported by a preponderance of the evidence.
Mrs. Hunter's mother inherited property through a sister. By will the mother devised and bequeathed to the daughter an estate of considerable value, the income from which was approximately $300 per month when the case at bar was tried. However, the property did not vest until the beneficiary became twenty-one years of age in 1934. About four years later she married, but in the meantime had spent an appreciable part of the estate. This was before she learned how to handle money.
According to Robert E. Hunter Sr., he and petitioner corresponded before they met. Hunter was stationed at Marfa, Texas. Petitioner wrote to a "marriage bureau," where she procured Hunter's address. As a consequence she went from Mississippi to Marfa. The wedding occurred in May, 1938. Robert Junior was born September 2, 1940. It appears, however, that discord began before 1940. Mrs. Hunter testified that she became pregnant shortly after her marriage, and in October her condition was such that she thought it best to make arrangements for her confinement. Her husband was drinking, and *Page 608 had not been at home for two weeks; so Mrs. Hunter went to the home of an aunt in Georgia, remaining about six weeks. She wrote her husband, asking what his intentions were, and saying they should be together on account of the child. In reply a telegram was received in which Hunter admitted having done wrong.1 There are references by Mrs. Hunter to a visit to Concord, Tenn., for six weeks, and a return to Texas.
Mrs. Hunter remained at Marfa a short time, but left in 1941. Her husband was transferred to Fort Sill, Okla. This occurred a short time after Mrs. Hunter left in January. On the way to Tennessee Mrs. Hunter stopped in Arkansas for a visit with her husband's mother, Mrs. Fannie Carpenter (one of the respondents) and spent six weeks. She was with Mrs. Carpenter again in 1942. In November 1944 she again went to Georgia. At that time she disclosed a highly nervous condition. A year later her father, Z. R. Umbarger, was informed by neighbors that Mrs. Hunter appeared to be mentally affected. Following an examination she was placed in Madison Sanatorium near Nashville, Tenn. The child was left with Mrs. Hunter's father. Robert E. Hunter Sr. was in Germany with the army. He was notified by the Red Cross that petitioner was incapacitated. The suggestion was made that he should arrange for Robert Junior's care. However, the father did not return to the United States until September 1945. After being discharged from the army he reenlisted. This occurred November 17, 1945. At that time he filed with the County Clerk of Union County, Arkansas, an affidavit reciting his marriage to petitioner, birth of the child, a declaration that he and his wife had been divorced; that custody of Robert Junior had originally been left with Mrs. Hunter, but asserting that the mother had voluntarily surrendered custody to him, and that during absence in the army he (the father) desired that the child should remain with its paternal grandmother, Mrs. Carpenter. An allotment of $30 per month was made in favor of the child, and $37 per month for Mrs. Carpenter. *Page 609
July 27, 1946, Mrs. Hunter petitioned Union Chancery Court for a writ of habeas corpus, alleging that Robert Junior was illegally held by Mrs. Carpenter. The father intervened. The case is here on certiorari.
In summing up, Chancellor Speer found that according to the "great weight of authority" Robert Junior had not enjoyed the benefits of a permanent home until October, 1945, when he was placed with Mrs. Carpenter. Mrs. Hunter, said the Judge, "was suffering from psychosis"; and, said he, "the pitiful thing is that the child has gotten on the nerves of its mother. This is the decided weight of testimony, not only by the doctors, but by laymen." It was then found as a matter of fact that it was for the best interest of the mother, as well as of Robert Junior, that Mrs. Hunter be relieved of the care and custody, for "It is apparent that if the child is placed with its mother the same thing may happen again."
Was this finding correct?
Respondent Hunter procured the decree of divorce in Union County, Arkansas, alleging three years separation without cohabitation. He subsequently married another. Army base pay is $100 per month, with $15 extra. The government allotment in favor of Mrs. Carpenter and $22 of the allotment for Robert Junior is not deducted from appellee's pay. He proposes to increase the child's allowance to $50 per month. The present Mrs. Hunter is allotted $22 per month, paid by the government, while $34.40 is deducted from the item of $115 to pay premiums on insurance. Policies are payable to Hunter's mother and son.
Although petitioner complains of her husband's treatment before and after she left Texas, a letter written by Hunter February 9, 1941, contains expressions of endearment *Page 610 and solicitude. It is printed in the margin.2 Another letter was written February 22, and is also copied below.3
Hunter testified that when his wife left, it was with the explanation that she was going to Tennessee to look after business matters, saying she was tired of paying ten percent for people to attend to it for her.
Because while on guard duty he failed to report, or, as it was expressed, "for omitting to call in every hour," Hunter was court-martialed while at Marfa. He did not know when the first allotment was made in favor of wife or child; but, after being transferred to California, he directed payment of $10 per month. Later he was advanced in rank and increased the amount to $40.
Mrs. Hunter, in testifying, said that she was thirty-three years of age and lived at Lakeview, Georgia. She owns a house in Chattanooga and another in Knoxville, purchased with money that came through her mother. The inheritance included oil interests.
Mrs. Carpenter and the child's father "came over to my house to `take out' habeas corpus proceedings. I was not physically able to go through with the suit; had low *Page 611 blood pressure and had just had a blood transfusion. Was trying to rest and regain my strength; so I agreed that Junior's father and grandmother could take him home with them for a while. I did not agree to let them have the child permanently. When I recovered my health I came out here to get my child, but Mrs. Carpenter refused to let me have him, so I thereupon filed this suit."
While in the Sanatorium Mrs. Hunter left Junior with her father. Upon leaving she took the boy home with her. After a while petitioner placed the boy with a Mrs. Berkhart, and then with a Mrs. West.
Mrs. Carpenter testified that after Mrs. Hunter left the Sanatorium she (Mrs. Carpenter) spent a short time with the child's mother. Together they went to the Berkhart home, where Mrs. Hunter was paying $7.50 per week for the child's keep. This trip was made in June 1945. The witness says she told Mrs. Hunter the Berkhart place was unsuited to the boy's needs because of a lack of cleanliness. There was this testimony by Mrs. Carpenter: "When we left [Dorothy's] home I thought we were going to town, but we wound around and finally got to Mrs. Berkhart's. It was `kinder' a back alley way and [Dorothy] seemed to be lost. . . . It was a four-room house with a screened porch — a nasty place. It looked like a Negro settlement. [Junior's] bed was dirty. When we got back home I said, `Dorothy, don't keep that child in that nasty place. . . . If you can't keep him I can take him back home with me.' Dorothy said the place had been recommended to her."
With reference to the West home Mrs. Carpenter testified that she went there to get the child, but was not allowed to see him. Mrs. West would not let her in. The [yard] was "all grown up in weeds. It was not a place for a child. The little ones there were `tough.' Junior's father was with me, and he said, `It is a pretty come-off not to let the child's father and grandmother see it.' Mrs. West replied, `I can use a gun.' She said she had been in one kidnapping." When asked specifically what she *Page 612 knew about Mrs. West, Mrs. Carpenter replied, "Nothing, except that she was a mighty rough customer."
Apparently Mrs. Carpenter then went to Mrs. Hunter, who called her father, Z. R. Umbarger, and told him to get the child: — "I asked if it would be all right for us to get [Junior] and [Dorothy] said `Yes, it will be all right for [the father] to have the child part of the time.' [Junior's father] then said she (Dorothy) could come to see the boy at any time. I then brought Junior home with me. We live in a long building divided into three rooms and a bath." When asked if it was a comfortable home Mrs. Carpenter replied, "Yes. There are nicer homes, but we live there. My son Frank lives with us."
Testimony regarding petitioner's mental condition is in sharp conflict. Dr. Jesse Hill, psychiatrist at Eastern State Hospital [for the insane] at Knoxville, examined Mrs. Hunter at his office February 17, 1945. She gave her address as Rossville, Ga.: — "I found that she had a psychosis. The type was undetermined, but it was of a depressing nature. She had many delusions, such as . . . an impulse to put poison in the food of others; said she had nothing to live for; also had `spells' when she did not know what she was doing. I sent her home and advised that she be put in a mental institution." The witness would not say whether at the present time (September, 1946) Mrs. Hunter was competent to have custody of the child: this because his examination was in February, 1945, and he had not seen her since.
Dr. Hill's testimony was concurred in by Dr. F. O. Pearson, who examined Mrs. Hunter in February 1945. Dr. Hill thought she was suffering "from a definite psychosis and was mentally unfit to properly rear her child."
Another witness (Mrs. Ruby Drummonds) testified that when the boy was very small Mrs. Hunter would not take care of him: — "She would play with him until he began crying, then she would leave him. Later she came back and was worse than before. Instead of using a switch she would get a stick of stovewood. She told people *Page 613 she had to do this or she would have to put him in an orphans' home." On cross-examination the witness (who was a daughter of Mrs. Carpenter and appellant's sister-in-law) was asked if she had ever seen Mrs. Hunter whip the boy with a stick of stovewood. She replied, "Yes, but my mother got the baby and went into the house with him."
Against the medical testimony offered by the petitioner and intervener were statements by El Dorado doctors, and by non-professional witnesses, who thought that Mrs. Hunter was fully competent to care for the child. Some of the lay-witnesses were non-residents who had known Mrs. Hunter for a long time and who had not observed any abnormal conditions. The El Dorado physicians expressed opinions that if Mrs. Hunter had at one time suffered from any cause there had been complete recovery.
Perhaps the most striking testimony came from Mrs. Hunter's father. Umbarger, a citizen of Whitehall, Tenn., who had formerly lived at Chattanooga, detailed at some length the circumstances attending Mrs. Hunter's conduct and her mental and physical status. Her attitude toward her father and brother, he said, had always been peculiar, and "we never knew where we stood with her." Her unusual conduct began shortly after 1925 when an attack of scarlet fever left certain adverse results. In 1945 Mrs. Hunter seemed to have undergone a complete physical breakdown. Neighbors called and suggested that she might be deranged. "I made investigations," Umbarger said, "and Dorothy seemed to realize there was something wrong with her mentally and insisted that she be taken to an institution — this at her own request. She was to have stayed there three months, but at the end of half that time she caused such trouble to get out, and the doctor wrote me about her condition in every way, stating that her case, as he called it, was not a complete mental case, but an extreme case of nerves.
"She claimed her boy when she got out, and I knew it would cause the same old trouble. She went home after *Page 614 she got the child and went to Mrs. West's place. It seems she and the boy got on each other's nerves. She had no control over him. The child, being in her custody and care, made her condition worse; and it was not right for the child. She explained that her memory was bad; that she would get on a street car and not know where she was going. [She also explained] that once she used washing powder instead of flour in making bread. We were afraid that if there should be any poison around she might endanger her life and that of the child. Her nervous condition has not been so bad since she was relieved of the child. I have seen her very little, but her friends have remarked on her improvement. She seems to pride [herself] on doing just what she pleases, without any interference. You can never tell how she will react to any proposition. . . . I am acquainted with Mrs. Carpenter. I think she is a proper person to have the care and custody of this child and I think the child is very fortunate to have a grandmother to give him a home. I know very little about the child's father, but I believe he is devoted to the little boy, and as far as I know he is the proper person to have the care and custody. I do not think my daughter should have the custody, [and] I hate so bad to say it! I go to church and Sunday School. I am affiliated with the Presbyterian Church of Chattanooga, and have been since 1916. I am not addicted to strong drink."
In testifying further, Umbarger said he knew very little about the marital relationship of his daughter and her husband, but "When she came to my home she did not say anything about her husband having left her. Dorothy has an independent income — enough to maintain a good living standard. I know [this] from the fact that her mother left her money, and her brother has increased his holdings.4 I know that she prides herself on the fact that no one knows how much money [she has], `and nothing *Page 615 about her.' She has no feeling for us, and as far as I am concerned she can handle her own affairs." Question: "You don't care much about what your daughter does, do you, Mr. Umbarger?" Answer: "No, I don't. She does not want anyone to know anything about her business, and the best I can do is to respect her wishes."
Later Mr. Umbarger testified that he saw Mrs. Hunter "five or six months ago about a business proposition. She seemed able to transact business at that time, and I settled the business with her. The administration of Dorothy's property has never been taken away from her."
March 13, 1945, Mrs. Hunter wrote to her son from Madison Sanitorium, addressing him as "Dearest Bobbie," and closing with the expression, "Write Mother, and be good. With love, Mother." This letter is printed in full in the margin.5 *Page 616
It is suggested that the Chancellor, in weighing the evidence, did not give appropriate consideration to the probability of improvement during the lapse of time between examination and observation of Mrs. Hunter by physicians called by Mrs. Carpenter and the child's father; that Mrs. Hunter's testimony, given orally in open court, discloses a rational mind and logical conclusions; that Umbarger's attitude was not that of a natural father; that he had been disappointed because the daughter insisted upon handling her estate, to his exclusion, and that selfishness colored the testimony to such an extent as to render it of little probative value.
All of this may be true. It must be conceded that credible witnesses — both physicians and laymen — gave direct testimony tending to support Mrs. Hunter's contention that whatever disability may have impaired her capacity to care for the child in 1945 had been removed, and that her condition at the time the hearing was had was that of a sound and normal person. But to accept this analysis of the evidence we must believe (as the Chancellor seemingly did not) that Mrs. Hunter fully recovered after 1945, and that her father was mistaken and highly prejudiced. If Mrs. Hunter's father's conduct was singular, hers also was unusual. In her letter to the son who was at that time but four and a half years old, the entire tone is one of self-pity, and throughout the communication there is accusation. "I think," said she, "how hard you made yourself on me all the time I kept you, when you could have been good to Mother and played out in the yard and entertained yourself instead of staying inside right at my feet all the time, dictating to me the whole time, and fussing and finding fault with me." *Page 617
It seems preposterous that a normal mother would believe that a child less than five years of age would be "dictating" to her. And again: — "Since you seem to make more out of yourself without me, . . . it wasn't intended for me to live to raise you; but if you had made things easier on me I believe I could have held out, and never would have landed here. I'm going to have to look out for myself from now on and make other arrangements for your care when I come home."
The doctors at Vanderbilt had told Mrs. Hunter, according to her letter to the boy, that many things were wrong with her, and "I had known this for a long time, but knowing there was no insanity in our family I hated to ever give in to it, but had gone so long that I got in condition I had to; but your crying caused me some kind of spells I never had before."
The evidence indicates that under Mrs. Hunter's mother's will Umbarger had the discretion to turn the estate over to Mrs. Hunter when she attained the age of twenty-one years, or he could continue to administer it.6 The clear inference is that Umbarger chose to relieve himself of the responsibility involved in handling the estate; hence he did not, as might be inferred in respect of one interested in self-profit, attempt to retain the money. Yet, another construction might be that the father was indifferent to his daughter's welfare and availed himself of the first opportunity to wash his hands of the transaction.
We think the Chancellor, who had many of the witnesses before him, (as was the case in Tilley v. Tilley,210 Ark. 850, 198 S.W.2d 168), was in better position to judge the motives pertaining to the controversy than are we. The decision now reached is by a divided *Page 618 Court. Three of the Judges entertain views sharply opposed to those of the majority; and, if the trial Court had found that the child's best interests would be served by taking custody from Mrs. Carpenter and again investing Mrs. Hunter with a mother's responsibilities, perhaps all of us would agree. But to reach that conclusion we would be required to say that after patiently listening to all that was said; after observing the witnesses, and considering testimony given in Mrs. Hunter's behalf by physicians living in El Dorado, and after a judicial admeasurement of depositions and a balancing of sentimental ties and the boy's welfare — to reach a conclusion favorable to Mrs. Hunter we would be forced to say that the Chancellor was wrong in his appraisement, and that we, with only the printed record before us, are better prepared to evaluate the facts and to turn the scale to another balance. This the majority cannot do.
The order will be affirmed without prejudice to Mrs. Hunter's right later, by appropriate procedure, to establish her right to share in custody of the child if changed conditions are to her advantage. Affirmed.
1 The child referred to by Mrs. Hunter died.
2 "Dear Dorothy: Hope you and Junior are O.K. I sent your trunk to El Dorado, general delivery. I don't know lots and street address. Honey, they sent your mail to a fellow named Hunter in D. Battery and he said it was opened by mistake. You had a check and letter, and I am enclosing them. Dear, I sure have been missing you and Junior. I'll sure be glad when we get to Ft. Sill. Sweetheart, I'll have to quit and mail this. Kiss Junior for me and write real soon. Tell Lois and all the folks hello for me and for them to write me. All my love to you and Junior. Robert."
3 "Dear Dorothy and Junior: Hope you are feeling fine. I received your letter a few days ago. I kept putting off writing because we've been expecting the order to go to Ft. Sill any day. The order came in yesterday and we are going to leave next Thursday. . . . Don't know if we will get paid before we leave, or not. I will try to find an apartment soon as we get there and come after you and Junior some time next month. I'll come just as soon as I can get a pass. We'll be pretty busy for a while after we get there because we will have to organize a new outfit. Yes, Honey, I met Wheeler's wife the other night. She seems to be a nice woman. I haven't been able to sell the baby bed yet, but am going to town Monday morning and try to sell it to some one. Nobody wants one, and it is awfully hard to sell it. Will write you on my arrival at Fort Sill. Kiss Junior for me. Love, Robert."
4 In appellant's abstract this sentence reads, ". . . and her brother has increased her holdings." The inference would be that Mrs. Hunter's brother handled her estate. However, the transcript shows that "his" was used, indicating that each inherited from the mother.
5 "I want to thank you for the good old box of cookies you sent me. One of the nurses comes in my room and eats some of them with me. She likes your cookies too. "Sonny boy, I went to Vanderbilt yesterday for a fluoroscope, I believe it is called, and the Dr. told me this morning that it showed up many things wrong with me, that I had a form of epilepsy. I had known it a long time, but knowing there was no insanity in our family I hated to ever give in to it, but had gone so long that I got in condition I had to, but your crying caused me some kind of spells I never had before, but I had everything so hard on top of being up so much every night with you, but am satisfied that with other troubles I had had when single and still have that there were other causes too, sonny. "How you did cry when you were a little baby, and on up till after three years old. My condition since you were born has given me much concern. I realized that you needed mother to live to raise you, but couldn't see my way clear to holding out, so I could live to raise you, I wonder just how much longer I can live. You need me very much, but as I think of how hard you made yourself on me all the time I kept you when you could have been good to mother and played out in the yard, and entertained yourself instead of staying inside right at my feet all the time, dictating to me the whole time and fussing and finding fault with me, and I see how much better you do for other people than you ever did for me, I feel like it will be better for me not to even be worrying about living to raise you, since you seem to make more out of yourself without me, that it wasn't intended for me to live to raise you, but if you had made things easier on me I believe I could have held out, and never would have landed here. I'm going to have to look out for myself from now on and make other arrangements for your care when I come home. I had in mind a home like Aunt Susie worked in where you would have children to play with all the time and I can come by and get you and bring home on week ends. Maybe there is a place in Chattanooga for you. "I regret very much my inability to raise you honey, but I did the best I could, under the circumstances. I'm making you a quilt for your little bed. "I miss you so much. I wish you were close, where I could see you often. Bless your little heart, sonny, I've only made you a piece of a mother, but would have done better if I could have."
6 As reflected by the transcript, p. 109, Mrs. Hunter was asked by one of her attorneys: "I believe your mother stated in her will that the property was to be turned over to you at twenty-one, unless your father saw fit to do otherwise?" Answer: "He did turn it over to me, and I spent a good deal of it before I found out how to make the proper investments." Question: "He had turned the money over to you, and he had to make a settlement, and you have handled it since?" Answer: "Yes."