One of the commandments given to Moses on Mount Sinai, and one of the most beautiful, was: "Honor thy father and thy mother; that thy days may be long upon the land which the Lord thy God giveth thee."
I do not know the date when that command was delivered; but for many, many centuries it has been a guiding influence in the lives of untold millions of people. Very truly to my mind, it is time tested, and its inestimable value as a life motive fully proven. Whoever, or whatever, robs any child of the inspiration to be gained, of the comfort to be derived, from a faithful effort to live fully up to that sublime injunction, as I am persuaded, does that child a grievous wrong; a wrong that can be in no wise recompensed by any mere plethora of material comforts — by any mere superabundance of playthings, petting, and pandering.
There is no dispute here, as there was none before the learned circuit judge, as to the law. We are all agreed that it is stated correctly, fully, and as clearly as at any other place, in the two opinions by this court — one of which was written, however, by a Justice of the Supreme Court — in the case of Montgomery v. Hughes et al., 4 Ala. App. 245,58 So. 113. As there written it has been over and over again approved by both the Supreme Court and this court. See Shepard's Citations, Alabama Reports.
Mutatis mutandis, the two opinions in the said Montgomery v. Hughes et al. Case speak exactly my sentiments with reference to the instant case, not only as to the law (which perforce they do), but as to the application of the law to the facts here involved.
Perhaps the opinion prepared by the Presiding Judge might not be called unfair in its reference to the father of the child whose future is here being dealt with; but, as I see it, it could have well been more explicit in its description of the type of man he was, of his environment, etc., of the woman he married — as appears, for the dominant, if not sole, purpose of procuring a competent stepmother for his little daughter. This, in order to counterbalance in a way the highly — and, be it said, properly written — commendatory references to appellees Mr. and Mrs. Donnelly.
I realize the futility, as a rule, of dissenting opinions. But, somehow, I will feel better if I may set down these facts; they being shown without dispute in the testimony:
1. The first three months of the child's life — those in which the spark of life really flickered — were spent in ahospital, under the care of skilled physicians and trained nurses. The father paid the bill.
2. The father — whatever be the truth as to his intending, and stating, as he admits he did state, that it was his intention, to let Mrs. Donnelly "raise" the child — never at any time gave the slightest evidence of any lack of paternal love for his little daughter.
3. Mrs. Donnelly gave the child every attention, as though it had been her own.
4. All the parties concerned are above reproach of any kind.
5. Everything was harmonious, pleasant, and beautiful to behold, until appellant Hall remarried.
6. The woman he married last — his present wife — is a mature woman, with education as a trained nurse; an admittedly fine character in every way; and a woman who the testimony in the record shows without dispute to be fitted in all respects to be a kind and loving stepmother to the child.
7. Appellant's present wife states a willingness and desire — and all, including, especially, Mr. Donnelly, express the utmost confidence in her — to give up her business occupation and assume the rôle of mother to this child.
8. Appellant Hall, a pharmacist, is shown — while not possessed, since the current *Page 485 world wide "depression" took its toll, of any accumulated wealth — to have ample earning capacity to insure, reasonably, the material comforts to his child. In addition, his present wife has a considerable estate, all, as she affirms, at his disposal.
9. Neither Mrs. Donnelly nor the present Mrs. Hall have ever given birth to a child; though the present Mrs. Hall has "raised" at least one adopted child, to the age of some seventeen or eighteen years.
10. From the standpoint of physical care, attention, and comforts, the child would fare equally well either in its present home or with its father.
11. All praise may be accorded Mrs. Donnelly for the faithful and efficient attention she has hitherto bestowed upon the child.
12. But appellant married; then things rapidly became unpleasant. At first, appellant stated he would not take the child from Mrs. Donnelly, out of his own love and appreciation of her for her great kindness to both him and it. But he sought to have the child spend week-ends with him in his new home. More trouble — was it jealousy?
13. Anyhow, friction arose; appellant's present wife displayed a fine spirit, a big heart, and wonderful poise;all the parties were friends.
14. But Solomon was yet to be needed; arguments arose over the week-end visits, culminating in Mr. Donnelly, who is shown, though, throughout, to be a fine character, merely trying to solve an unsolvable problem, cudgeling appellant Hall around, in the immediate presence of his own child, and kicking him off his (Donnelly's) porch.
15. This was the straw (or the kick) that "broke the camel's back." Hall went to court, asked for the custody of his daughter.
16. There is not one single thing shown in the evidence to disqualify Hall in any way from having the custody of his child. This is not disputed.
Then the law steps in, or should: "* * * 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 goodcause is shown why he should not have such care and custody. [Italics mine.]" Montgomery v. Hughes et al., supra. This statement of the law is based upon the soundest of reasoning — all keeping in view the ever present lodestar of the "best interests of the child." See citations in majority opinion, and in this.
Providence has robbed this child of one parent; the decree ordered by my associates would rob it of the other. Nay, worse, because, as I see it, it would be vastly better for the child that its father be dead, rather than that the situation ordered by my associates obtain — where, from the very nature of the situation that has arisen, the child would not be taught, as the evidence in the record shows without dispute it has not recently been taught, to "Honor thy (its) father." And this father is shown likewise without dispute to be entirely worthy of honor.
To do this thing to this child would be in my opinion an irremediable wrong. See Gill v. Holdridge, 23 Ala. App. 398,126 So. 176, where we were all agreed.
I therefore respectfully dissent.