Greene County IL Archives Court.....Miner, V Miner 1849
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Source: Reports Of Cases Illinois
Written: 1849

Martin B. Miner v. Laura L. Miner. 

Appeal from Greene.

1. parent and child — custody of children. In cases of separation the father 
has the legal right to the custody and control of his children, unless he has 
forfeited, waived or lost it, by misconduct, misfortune or some peculiar 
circumstances, sufficient to deprive him of it.(l)

2. Same — jurisdiction of chancery. Next to the right of the father, that of 
the mother must be recognized; but these rights are subject to the control of 
a court of chancery, and when its aid is invoked, the best interests of the 
child should be primarily considered.(2)

3. Same — after divorce. Under our statute, the paramount right of the father 
to the children will not be recognized, where a divorce has been granted for 
his fault or misconduct.(3)

4. Same. The proofs taken upon the hearing of a question for divorce, may be 
considered by the court, in disposing of the children of the parties.

5. Same. When the aid of the court is once invoked to provide for the 
guardianship of infants, in case of separation of the parents, such infants 
become the wards of the court, and it will not permit them to be removed 
beyond its jurisdiction, or permit either parent to alienate the affections of 
the infants from the other.

The appellee, complainant in the Jersey circuit court, at the May term, 1848, 
filed her bill for a divorce, on account of extreme and repeated cruelty on 
the part of her husband. The venue was afterwards changed to Greene county for 
trial, and in that court a decree for a divorce was entered, the defendant 
having withdrawn all defense to a divorce, but reserving to himself "the right 
of contesting before the court all her legal claims, to the custody, care and 
maintenance of his daughter, Charlotte H. Miner, the "only surviving offspring 
of the marriage; and reserving, also, to himself, the right of contesting any 
claim which might be set up by complainant for alimony, as set forth in the 
bill." Subsequently to the entry of the decree for a divorce, the questions as 
to custody of the child and the allowing of alimony were heard and decided, 
whereby the custody, care, control and raising of the child, was given to the 
complainant, and that she have and retain as for her alimony, certain articles 
of personal property, enumerating some of them, "and such other items of 
personal property as she has in her possession, that may have belonged to the 
defendant;" the court making "no order for the payment of alimony in money," 
from which the defendant prayed an appeal to this court; but the court below, 
as the decree reads, in consequence of the additional expense which would have 
to be incurred by the plaintiff, in further litigating this cause, ordered and 
decreed that the defendant pay to the plaintiff $15, at the end of each month, 
from and after the date of the decree, until the questions involved are 
settled, and the child should be surrendered to the plaintiff." From all these 
decisions, except the one granting a decree, the defendant has appealed to 
this court. The testimony adduced on the final hearing of the questions 
reserved, some of which was objected to, is embodied in the bill of 
exceptions, and the defendant insists does not authorize the decisions of the 
court made therein.

By agreement of the parties, entered of record, David A. Smith, esq., was 
substituted for judge Woodson in the hearing of this cause, the latter having 
been of counsel for one of the parties, and the decision of Mr. Smith was to 
be and was entered as of the April term, 1849, of said Greene circuit court.

It is not deemed advisable to incorporate the testimony in the statement of 
the case, inasmuch as it is not essential to a full understanding of the 
opinion.

The appellant assigned several errors:

1. That he should be entrusted with the care of the child, instead of the 
mother.

2. That decree for divorce ought not to have been granted, nor should 
respondent have been adjudged to pay the costs.

3. That alimony was improperly allowed.

4. That the decree for alimony, besides being for specific articles of 
property, incapable of identification, is indefinite and uncertain.

5. That the circuit court imposed terms and required conditions unauthorized 
bylaw, and arbitrary in their character and terms.

6. That the allowance of fifteen dollars per month was wrong,  and it was 
error to give the appellee the custody of the child.

7. The allowance of five dollars per month to the appellee, for her support 
during the pendency of this suit.

8. And the issuing of the depositions, taken for the express purpose of 
divorce, in the hearing on trial for the custody of the child.

D. J. Baker, for appellant: 1. The father has the first right to the 
guardianship of his children, and to their custody, care, control and raising. 
This right is incident to and arises out of his duty to maintain them, and, 
consequently, to instruct them, and his right to their services. 2d Kent's 
Com., p. 193 and 195, note b; also 1 Hoff., Ch. R., 497; Ahrenfeldt v. 
Ahrenfeldt, 25 Wend. R., 64; Mercien v. People, 3d Hill's R., 399; The People 
v. Mercien, 2d Kent's Com., 195 and 205, and notes b and c; The King v. De 
Manneville, 5 East; 4 Humph. Rep., 523; 18 Wendell, 637. In The People v. 
Mercien, 3 Hill, 399, it was held as a general rule of law, that, as between 
husband and wife, the claim of the former to the custody of their infant 
children is paramount, and will be enforced on habeas corpus, though the child 
be a daughter under five years of age. The rights of parents result from their 
duties. 2 Kent's Com., 193 and 203. The father has the first right to 
guardianship, by nature; the mother the second. 2 Kent's Com., 220, note d. 
The rights and powers of a guardian are strictly local, and can not be 
exercised in other States. 2 do., 227, note b; 2d Bland's Ch. R., 504; 2d 
Mylne & Craig, 31; 5 Paige's Ch. R., 596; 2 Madd. Ch., 332. The father is 
still bound to support after a divorce, is granted. 3 Gilman's R., 435 et 
seq., Coles v. Coles; Staunton v. Wilson, 3 Day R., 37. The statute of 
Illinois relating to the support of the children of persons divorced, confers 
on the court no new authority. A court of chancery possessed it independent of 
the statute. Do., 438.

2. The facts proved in this case did not authorize the alimony of the specific 
articles of property mentioned in the decree, much less of property by the 
designation of "such other items of personal property as she has in her 
possession, that may have belonged to the defendant." Besides being 
unauthorized by the evidence and the law, a part of the articles decreed to 
her as alimony are uncertain, and incapable of identification. The depositions 
used on the trial of the divorce were improperly admitted as evidence, in 
regard to the questions as to the custody of the child, and the allowance of 
alimony. Reavis v. Reavis, 1 Scam., 242.

3. The court did not possess the authority to compel the defendant to pay for 
the support and maintenance of complainant, during the pendency of the suit.

4. The defendant possessed the absolute and unqualified right to appeal from 
the decision of the court below to this court; and the terms and conditions 
imposed upon the defendant in allowing the appeal prayed to this court, being 
the payment of $15 at the end of each month from and after the date of the 
decree, until the questions involved should be settled, and the surrender of 
the child to the complainant were unauthorized and arbitrary. Emerson v. 
Clark, 2 Scam., 489.

Wm. Thomas, for appellee: In this case the circuit court decreed: 

1. That the appellee should have the custody, care and control of her infant 
child, or female aged seven years.

2. That the appellee have and retain, as and for her alimony in the premises, 
certain articles of personal property, then in possession.

3. The court being satisfied that the value of appellant's property did not 
exceed the amount of his indebtedness, and that he was not in the receipt of 
any income, made no order for the payment of alimony in money.

4. That appellant should pay the costs.

5. That appellant should pay fifteen dollars per month for support, etc., 
pending the litigation.

From this decree the appeal is taken to this court. The defendant insists:

1. That, in so far as the decree affects the custody of the child, it was made 
in the exercise of a discretionary power, and therefore not the subject of 
revision by this court. Revised Statutes, 197, secs. 6 and 8; 2 Kane's, 181; 
10 Wendell, 39; 12 Johnson, 49; 18 Wendell, 329-30; 6 Peters, 648; 1 Scammon, 
135; 2 Bibb, 554; 5 Gilman, 169.

2. The jurisdiction of this court is appellate only, and can only be exercised 
in cases "wherein the rules of law, or principles of equity, appear from the 
files, records or exhibits [of inferior courts] to have been erroneously 
adjudged and determined." 5 art., 5 sec, Constitution; Revised Statutes, 143. 
The question decided by the circuit court depended, not upon any rule of law, 
or principle of equity, but upon the opinion of the judge, as to what was for 
the interest of a third person, not before the court.

3. This court will not look into the decree for divorce, because the decision 
upon that question is not objected to, nor appealed from.

4. It is stated in the abstract, that the appellant withdrew all defence to 
the decree for the divorce; and this fact is said to appear from the record. 
Upon this question there can be no controversy in this court; but the reply to 
the suggestion is, first, the paper referred to is no part of the record; 
second, it was never acted upon by the court below, and could not have 
influenced the decision of that court.

5. If such a paper had been brought to the notice of the court, with any 
evidence of agreement or collusion between the parties, the bill would have 
been dismissed.

6. The depositions prove such conduct toward the wife, as to satisfy any judge 
or court that the guilty party is wholly unfit to have the care of an infant 
daughter.

7. Upon the question as to the custody of the child, the evidence shows: 
First, that M'Neal, the father of the appellee, is a man of great wealth; that 
he is willing and anxious for the return of the appellee with the child, to 
him, and to educate and provide for the grandchild. Second, that the appellee 
is well qualified to have the charge and education of the child. Third, that 
the welfare of this child requires the care and attention of the mother. 
Fourth, that appellant is destitute of property, and, of course, without the 
ability to educate the child so as to fit her for the duties of life. Fifth, 
that appellant has employed a house-keeper, with whom the child must 
associate, who is ignorant — wholly unfit to have the charge or care of 
children. No witness proves, that either appellant or his house-keeper ought 
to be allowed to have the care and education of the child. Sixth, from the 
nature of the case, and the provisions of the law, it is impossible that the 
court could have erred in deciding any legal questions presented.

Upon the question of the custody of the child, the defendant relies upon the 
following authorities: Cowls v. Cowls, 3 Gilman, 436; U. S. v. Green, 3 Mason, 
484-5; Foster and wife v. Alston, 6 How. Miss., 456; Morcien v. The People, 25 
Wendell, 103; Cook v. Cook, 1 Barbour, 644.

Upon the question of alimony, it is not disputed but that the court had the 
power to make the order; the form of the decree in this respect seemingly 
making the $15 per month payable, because the appeal was prayed, can have no 
influence upon the question now before the court. Jones v. Jones, 2 Barbour's 
Chy., 147; 3 Barbour's Supreme Court, 624; 1 do., 431. This court will 
understand the decree as requiring the appellant to pay $15 per month, pending 
the litigation.

This is the substance and effect of the order. Upon the question of the 
reading of the depositions, the appellee insists: First, that the depositions 
were already before the court, having been read upon the trial for divorce. 
Second, that though it appears that the reading of the depositions was 
objected to, yet no exception was taken to their being read. Third, the 
depositions were regularly taken to be read as evidence in the cause; the 
witnesses reside in Jersey county; the court was held in Greene county. 
Fourth, the ground of objection does not appear from the record; none was 
stated before the circuit court, and it is now too late to make objections 
which, if made in the circuit court, might have been obviated.

In the case of Reavis v. Reavis, the court decided that the party was entitled 
to alimony, and the question to be subsequently determined was as to the 
amount. It was, therefore, improper to introduce evidence upon the question 
already decided; but in the case now before the court, the question of alimony 
had not been decided, and the depositions were properly admitted.

Caton, J. No complaint is made of the decree granting the divorce. The 
principal question submitted for our consideration, relates to the proper 
disposition to be made of the child. In determining this question, it is 
insisted that we ought not to look into the depositions, which were taken upon 
the trial of the main issue, and that we should limit ourselves to an 
examination only of such evidence, as was taken upon this incidental question. 
This is an appendage of the original suit, and all proofs regularly taken in 
the case, and bearing upon the present inquiry, are subject to an examination. 
We are asked, to be more exclusive in the admission of evidence in this than 
in any other case, whereas the reverse of this proposition has been decided to 
be the correct rule, and so laid down in Cowls v. Cowls, 3 Gilman, 435. In 
that case, also, the jurisdiction, powers and duties of a court of chancery, 
in the disposition of infants within its jurisdiction, are fully set forth; it 
is, therefore, unnecessary to enlarge upon them here. A court of chancery is 
seldom called upon to exercise a jurisdiction of so embarrassing and important 
a character as this, or one which requires more serious and anxious 
consideration. In the exercise of it we are called upon, not only to interfere 
with the interests of suitors, but to sound the deepest feelings of the human 
heart — the love of parents for their children. Especially in the present 
case, where the parents are separated by a divorce, and both seem equally 
attached to their offspring.

Upon the extent of the legal right of the father to the custody and control of 
his children, many contradictory decisions are to be found; we think it clear, 
nevertheless, that he does possess that right, unless he has forfeited, waived 
or lost it, either by misconduct, misfortune, or some peculiar circumstances, 
sufficient in the opinion of an enlightened chancellor to deprive him of it. 
In the event of a separation of the parents, this right must be conferred upon 
one of them, otherwise the impulses of their natures would induce them to 
resort to violence to retain possession of their children. Next to the right 
of the father that of the mother must be recognized. These rights, however, 
are subject to the control of the courts of chancery, and when its aid is 
invoked, while it may not disregard the natural rights of parents, and the 
ties of blood, the best interest of the child must be primarily consulted.   
It is upon this consideration that an infant of tender years is generally left 
with the mother, (if no objection to her is shown to exist,) even when the 
father is without blame, merely because of his inability to bestow upon it 
that tender care which nature requires, and which it is the peculiar province 
of a mother to supply.

This remark will apply with much force in cases of female children of a more 
advanced age. While the affection of parents for daughters may be equal, yet 
the mother, from her natural endowments, her position in society, and her 
constant association with them, can give them that care, attention and advice 
so indispensable to their welfare; which a father, if the same children were 
left to his supervision, wonld be compelled in a great degree to confide to 
strangers. I know there are some decisions of the common law courts of 
England, of a late date, where they have, by the writ of habeas corpus, torn 
nursing infants from the arms of innocent and unexceptionable mothers, and 
placed them in the hands of fathers, to be reared by adulteresses, with whom 
the fathers were living. But so far as I am informed, a court of chancery has 
never been disgraced by such a decision. Clothed with more discretion, it is 
to be hoped that court will continue to exercise that discretion under a more 
benign influence.

In no case do I find this legal right of the father asserted, where a divorce 
has been granted for his fault or misconduct. If such right ever did exist, so 
as to abridge or control the exercise of the equitable discretion of the court 
of chancery, it has been entirely removed by our statute; which authorizes the 
court, when a divorce shall be granted, to make such order touching "the care, 
custody and support of the children, or any of them, as from the circumstances 
of the parties and the nature of the case shall be fit, reasonable and just." 
What then is fit, reasonable and just, under the circumstances of these 
parties, and the nature of this case? Such a case of ill-treatment of the wife 
is shown, as authorized the court, under our statute, to grant a divorce. In 
determining the question submitted to us, we shall not minutely review the 
evidence upon which that court decided, but will content ourselves with 
remarking, that it shows the defendant to be a man of irascible temper and 
violent resentments, over which at times he loses all control. Towards his 
wife, at least, his conduct was so unreasonable, oppressive, and we may add 
cruel, as to render her life miserable, and to cause her health to be 
seriously impaired. It may be that her education, tastes and habits of 
thoughts may have unfitted her for the situation and circumstances in which 
she lived, and that she was unreasonable and irritating in her complaints; but 
these would not furnish a justification for the conduct of the husband towards 
her. Towards the child, his conduct, so far as is shown from the evidence, 
seems to have been unexceptionable. That he has the proper affection for her 
we may not doubt, and it may be that towards her his unfortunate temper would 
be but seldom manifested. Notwithstanding this, it can not be expected that he 
would bestow that personal care and attention upon a girl seven or eight years 
old, which may be expected from a mother, who appears to be well qualified for 
the care of the child, and against whom no just objection is shown to exist. 
If left with the father, the child must, to a great extent, be entrusted to 
the superintendence of others; her nature will lead her to associate with her 
own sex, by whom her manners will be formed, her thoughts and tastes directed, 
and, in truth, her character mainly moulded. His occupations will doubtless 
prevent that constant watchfulness over her, so essential to her proper 
cultivation, and which could be better contributed by a vigilant and tender 
mother. We shall, therefore, leave her for the present, at least, where she 
has been placed by the circuit court.

It is apparent from the record that there is some intention on the part of the 
mother, if allowed to retain the custody of the child, to remove her beyond 
the limits of the state. This can not be tolerated, and must be guarded 
against. While the custody of the child is given to the mother, the father 
must not be wholly deprived of its society, but must be allowed access to it 
upon all reasonable occasions. The child, although intrusted to the care of 
the mother, is nevertheless the ward of the court, and any attempt on the part 
of either parent to alienate its affections from the other, would be a 
contempt of the court, and would be visited by its judgments as such. Indeed, 
this, by whomsoever attempted, would be held to be an abuse of the child, 
which the court would consider it a solemn duty to prevent.

That portion of the decree which awards to the complainant in the bill the sum 
of fifteen dollars per month, to be paid by the respondent, is reversed, and 
the remainder of said decree is affirmed, with costs. Upon this condition, 
however, that the said complainant enter into a bond to the people of this 
state, in the sum of two thousand dollars, with security to be approved by the 
master in chancery, or the clerk of the circuit court of Greene county, 
conditioned that the child shall not be removed beyond the jurisdiction of the 
state, and shall be produced at anytime hereafter, upon the order of the said 
circuit court. And the suit must be remanded for such further action as future 
circumstances may require in the premises.

Decree modified.

-------------
Cited—Pet'n of Smith, 13 Ill., 138; Hewitt v. Long, 76 Ill., 399.

(1) The parent's right to the control and custody of infant children is not to 
be abridged by statute except from necessity, arising from gross misconduct, 
or almost total unfitness on the part of the parent, People v. Turner, 55 
Ill., 280. The paramount right of the father, at common law, arises from the 
obligation imposed on him to provide for the maintenance of such infant 
children, Hewitt v. Long, 76 Ill., 309, and, under ordinary conditions, the 
right of the mother to the custody of such children will not arise during the 
life time of the father, and in the absence of proof to the contrary, the law 
presumes the father to be alive, with right of action as to his children 
remaining in him, Hobson v. Fullerton, 4 Bradw., 282. Thus, in an action of 
trespass, by the taking of a child, defendant set up, as a defense, permission 
of the mother. The plea was held defective, in that it showed no circumstances 
implying authority in the mother to give such permission, the father, by law, 
being entitled, Pierce v. Millay, 62 Ill., 133.

(2) But, the right of the mother arises only under the order, in a proper 
case, of a proper court, Hobson v. Fullerton, 4 Bradw., 282. It is one of the 
peculiar duties of a court of chancery to protect the rights of infants, 
Hartman v. Hartman, 59 Ill., 103; White v. Glover, 59 Ill., 459; indeed, from 
the earliest days such a court has been regarded as a general guardian of all 
infants within the jurisdiction, to see that their rights be not trifled away 
or sacrificed, and they be not made the prey of their kindred or strangers, 
Smith v. Sackett, 5 Gilm., 534; wherefore, it has been deemed the exercise of 
the power of control of infants is indispensable in the court. In the exercise 
of this power the court is to move only in the interest of the infant; not to 
be urged by consideration of the rights of parents, or others, that are to be 
enforced in the proceeding — as in the case of divorce, Cowles v. Cowles, 3 
Gilm., 435, or in case of the disposition of the custody of an infant orphan, 
Smith, in re, 13 Ill., 138; and, where the child is of age so to be able to 
choose for itself, looking to the good of the child only, the court will not 
take it from one parent to give it to the other, against its own wishes, 
Hewitt v. Long, 76 Ill., 399; so, if on divorce decreed, if by the decree the 
father be discharged of his obligation to maintain the child, the absolute 
common law right of custody and control yields to the discretionary power 
vested in the court by statute, Hewitt v.  Long, 76 Ill., 309.

(3) There being no evidence of her unfitness to take care and have the custody 
of infant children, it is not improper, in decree of divorce, to award the 
custody to the mother, Becker v. Becker, 79 Ill., 532, and, such decree, ipso 
facto, takes away all control of the father, until it be restored to him by 
decree of the proper court, Wilkinson v. Deming, 80 Ill., 342; Stat. 1874, 
Mar. 10; R. S., 1874, p. 421, § 13; Cothran's Stat., p. 546, § 13, custody of 
children pendente lite; Stat. 1874, Mar. 10; R. S., 1874, pp. 421-2, § 18; 
Cothran's Stat., 547, § 18, custody and support after divorce decreed.

Additional Comments:
Reports of Cases Argued and Determined in the Supreme Court of the State of 
Illinois, from November Term, 1849, to June Term, 1850, Both Inclusive. By 
Ebenezer Peck. Volume XI. Annotated by Henry Binmore, of the Chicago Bar. 
CHICAGO: CALLAGHAN & CO. 1886.

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