Samuel K. CLIFFORD, Appellant,
R. Reid WOODFORD, Appellee. In the Matter of the Guardianship of the Persons of: Jacqueline CLIFFORD and Marrie Gretchen Clifford.
[83 Ariz. 259] Rawlins, Davis, Christy, Kleinman & Burrus, and Chester J. Peterson, Phoenix, for appellant.
Henderson, Trew & Clark Ford Dodd and Stockton & Karam, Phoenix, for appellee.
Appellant Samuel K. Clifford appeals from a judgment quashing a writ of habeas corpus in which he sought custody of Jacqueline and Marrie Gretchen Clifford, his minor children, by his former wife who subsequently married appellee and cross-appellant, R. Reid Woodford, and further from the court's order directing that letters of guardianship be issued to Woodford and adjudging the latter to be entitled to the custody of said children. Appeal was also taken from certain orders of the court made during the course of the proceedings which it will not be necessary to designate.
Woodford cross-appealed from the order of the trial court entered April 25, 1957 denying his motion to quash the writ of habeas[83 Ariz. 260] corpus and from its further order denying his motion to consolidate a cause of action instituted by his wife, the mother of Jacqueline and Gretchen, for the appointment of Woodford as guardian of said children, the same being casue No. 37886. Woodford further cross-appealed from certain portions of the order and judgment in the instant case which we deem it unnecessary to set out at this time.
For convenience Clifford will be hereinafter designated as 'Clifford', his minor children here involved as 'Jacqueline' and 'Gretchen' or 'the children', and their mother as 'the mother' or 'their mother', and Woodford simply as 'Woodford', and Clifford's present wife as 'Charlotte.'
In order to understand the situation with which we are dealing we will go back to the year 1942 when Clifford married Constance V. Brooks at Safford, Arizona. The above-named children are the issue of that marriage. Jacqueline will be 15 years of age on her next birthday. Gretchen was 12 years of age on her last birthday. On February 2, 1946 a divorce was granted the mother of the children by the Superior Court of Graham County, Arizona, awarding the custody of said children to the mother and ordering Clifford to pay to her the sum of $150 per month for their support. It also set aside to her Government bonds in the sum of $500. No alimony was awarded the mother.
Clifford thereafter, in August 1946, married his present wife Charlotte and there are now three children as issue of that marriage, ages 9, 7 and 4. On October 29, 1946 Woodford married the mother of the children here involved and to her and Woodford were born as issue of that marriage two children, Dodie and Bobbie, ages 10 and 7. At the time of this marriage Jacqueline was approximately three and one-half years of age and Gretchen was a little over one year old. At the time of the separation of Clifford and the mother of the children Jacqueline was a little over two years old and Gretchen was about one week old. Prior to the separation Clifford was away from home on assignments in the military service with which he was then connected so that the total period of his association with Jacqueline was in the neighborhood of a year. The children lived with Woodford and their mother at all times after her second marriage until Noevember 4th, 1956 the date of her death, and since have been and now are living with Woodford.
On October 29, 1956 the mother who had been informed by her doctor she had but a short time to live filed a petition in the Superior Court of Maricopa County for the appointment of her husband, Reid Woodford, as guardian of the children. Upon hearing, letters of guardianship were directed to be issued to Woodford, but later the order was vacated for lack of bond. Thereafter, on [83 Ariz. 261] April 11, 1957, Clifford filed a petition for writ of habeas corpus in the Maricopa County Superior Court seeking custody of the children, and on April 17 following, Woodford filed a petition in the same court for his appointment as guardian of said children. The two cases were consolidated for trial, and after hearing, the court on May 7, 1957 quashed the writ of habeas corpus and ordered that letters of guardianship issue to Woodford and awarded him custody of the children. It is from this order and judgment, and from the order denying his motion to set aside the order and judgment, and to grant him a new trial that Clifford appeals.
Clifford has presented five assignments of error all of which are directed at the court's order quashing the writ of habeas corpus wherein he sought custody of his minor children and at its order appointing Woodford guardian of said children and awarding their custody to him. He argues that our pronouncement in Woodford v. Superior Court, 82 Ariz. 181, 309 P.2d 973, 974, predetermines the issues in this case wherein it said that upon the death of one of the spouses who held custody of minor children pursuant to a divorce decree, the right of legal custody automatically inures to the surviving parent. The court then continued to say in that opinion that, 'the legal custody so derived continues until it is shown that such survivor is unfit to assume the responsibilities inherent to parenthood.' If the surviving parent is shown to be unfit to assume such responsibilities in the sense that his custody would be detrimental to the best interest and welfare of such children then he is not entitled to their custody.
In the instant case as pointed out above Woodford and his wife, the mother of the children here involved, had the custody of these children from their very infancy. They had reared and nurtured them through all the years of their life until their mother's death when Jacqueline was blossoming into young womanhood and Gretchen stood upon the threshold of the
same wonderful transformation. They continued in the custody of Woodford after the writ of habeas corpus issued upon the petition of Clifford for their custody. Woodford then sought his appointment as their guardian. He had the right to have the trial court determine the question of what would be for their best interest and welfare in this particular litigation. The writ of habeas corpus alone provided adequate legal mechanism for such determination. However, the court consolidated that case with Woodford's petition for his appointment as their guardian and for the custody of said children. Both cases had for their purpose the same end result; therefore, their consolidation resulted in no prejudice to either party.
[83 Ariz. 262] Conceding that under the rule laid down in Woodford v. Superior Court, supra, Clifford was automatically entitled to the custody of the children upon the death of their mother until it was shown that he was not a fit person to have such custody, we believe Woodford had the right to raise that issue and to show by a preponderance of the evidence, if he could do so, that Clifford was not a fit person to have their custody. This is true if for no other reason than to avoid a multiplicity of lawsuits where the entire matter could be settled in the instant case. Certainly the children should not be subjected to such frustration either by keeping them in a mental condition of uncertainty or by ordering a change of custody until the question of the natural father's fitness was determined. The children have rights that we have consistently held to be superior to even the parents, in that, the court will always look to their best interest in determining their custody.
The primary question presented to us is whether the trial court abused its discretion in determining this most important issue by placing the children in the custody of Woodford. We believe it did not. This court has said that a parent is entitled to the custody of his own children as against anyone else, yet, in every case it has made the further pronouncement, in substance, that the primary consideration of the court in such case is the best interest and welfare of the child or children, as the case may be, rather than the technical legal right of the parent. Harper v. Tipple, 21 Ariz. 41, 184 P. 1005. In Dickason v. Sturdavan, 50 Ariz. 382, 72 P.2d 584, 586, this court said:
'* * * (T)here can be no question under all the authorities but that in answering the query, Who should have the custody of the children? the pole star by which it is led to a decision is their best interest. While it is true that a father, who is a proper and fit person to care for his child, is entitled to its custody above any other person, since the 'voice of nature, which declares that the father is the natural guardian of the minor child, cannot be silenced,' Harper v. Tipple, 21 Ariz. 41, 184 P. 1005, 1006, yet he must be so fit and suitable for the performance of this most important function that the court can say that the child's best interest will be subserved by placing it in his care and custody. The paramount consideration being the child's welfare, the parents' prima facie right to its custody is not an unconditional one. Neither does the sole fact that one is the parent and able and willing to care for it necessarily have this effect, because this could easily be true and yet the best interest of the child be subserved by placing it in the custody of another.'
[83 Ariz. 263] Arizona State Department of Public Welfare v. Barlow, 80 Ariz. 249, 296 P.2d 298, recognized the above to be the rule. See also, Fladung v. Sanford, 51 Ariz. 211, 75 P.2d 685, and In re Winn, 48 Ariz. 529, 63 P.2d 198.
Let us apply this test in considering whether the judgment of the trial court is justified by the evidence, and especially the fitness of Clifford to have the custody of the children in the light of his relationship to them since they were infants in arms until the death of their mother in 1956, a period of over twelve years, and then compare that with the relationship of
Woodford to them during that period. It is only by this comparison that the trial court could determine the best interest and welfare of the children. During all this period Clifford never wrote the children until after their mother's death. There of greeting of love or anything by that would indicate an interest in anyone that would indicate an interest in them. He neither sent them birthday presents nor greetings at such times. He said he always sent them Christmas presents. Charlotte testified that during the time they lived in Colorado from the spring of 1951 until the death of the mother of the children (November 4, 1956) Clifford neither wrote them a letter nor did he remember them with gifts either on their birthdays or on Christmas. This conflicts with Clifford's testimony that he always sent them Christmas presents. Clifford and his family moved to Colorado in the spring of 1951, and he stated he had not written them at all between that date and November, 1956. Woodford and their mother moved to Tucson in 1946 where he attended the university for four years. During that period Clifford never visited the babies a single time in Tucson. However, when the Woodfords returned to Safford on a visit, which Clifford said was on Thanksgiving, Christmas and holidays, which he said was two or three times a year, their mother notified him of their presence in Safford and he would have them over for a day.
While in the military service he received an allotment from the Government to pay the $150 per month allowed by the court in the divorce decree for the support of his children. He said this amount was allotted in full by the Government. Notwithstanding this fact, he, of his own accord and without an order of court, reduced the payment for the support of his children to $60 per month and continued to withhold $90 of said allotment for the use of himself and family until his attorney told him he could not do so without an order of the court and that before he could have the divorce decree modified reducing such monthly payments he would have to pay all amounts withheld. This he did, amounting to around $500 or $600. He was compelled to do this before he [83 Ariz. 264] would have any standing in court to seek a reduction of the $150 allowance. Then upon application to the court the allowance for child support was reduced to $75 per month. This was not paid regularly and he was $225 in arrears on the $75 allowance in the divorce decree at the time of the mother's death. A check for that amount was received later but was returned to him by Woodford. Clifford at the time of this shortage had an income of around $8,000 per year.
Upon his request the children visited in his home in Colorado for two months during the summer of 1952, and he was advised by their mother they could visit him any summer thereafter he wanted them to do so, but he never invited them again, and he did not see them again until 1955 when he and his family stopped in Phoenix on their return from a trip to California and took the children swimming, to dinner, and to a show. This is the year Clifford stated he was injured in some kind of an accident. During the time he was in the military service he had furloughs due while in Albuquerque but never used them to visit his children in Safford, a comparatively short distance from him. He has had vacation allotments of thirty days a year since he began working for they Colorado Game & Fish Department on November 17, 1953, but never has used one to visit his children. He went Elk hunting in 1953 and 1954. From the time of his divorce in February of 1946 until August of that year when he married Charlotte, he was in Safford several times and called him wife and made appointments to see the children. On several occasions he did not keep such appointments nor did he explain why he did not keep them. Clifford testified he did not recall such an occurrence. In each instance the mother prepared them for the occasion. He did come from Albuquerque to Phoenix five or six times from June to August of
1946 to call upon his present wife to whom he was then paying court, but did not take time to visit or even inquire about his children who were then living in Safford.
Can it be said that the trial court was not justified in awarding the custody of these children to Woodford in the light of the above facts regardless of what Clifford's reputation may be among his associates in Colorado or elsewhere? Do the facts above stated demonstrate an affection for these children or even an interest in them which cries out in such anguish against depriving Clifford of their custody that the 'voice of nature * * * cannot be silenced' in this case? We think not. We believe the trial court was justified in concluding from this evidence that Clifford's relationship with them from several months before their mother divorced him to the date of her death and up to the date of the trial, was such as to make him unfit to assume the responsibilities of parenthood to these children.
[83 Ariz. 265] Woodford and the mother of these children during the period of their helplessness in their early infancy necessarily cared for them day and night. They unquestionably shared with them in all their childish joys and disappointments to the date of their mother's death in November, 1956. In that tragic event Woodford walked beside them in their hour of supreme need into the greatest depth of despair to which the human heart can descend or is ever called upon to endure. The evidence shows he loved them as he did his own and they unstintedly returned his love in full measure.
The ties that cement the members of a family into a unit of solidarity is not necessarily the result of blood relation, but they arise out of and are formed by an intimate association sharing with each other the joys and sorrows, the fears and hopes, the successes and failures of each and all. There is a deep seated desire in the breast of every person, whether child or adult, to have some one care about their welfare to whom they may anchor and find peace and contentment in the knowledge that they do care. Jacqueline and Gretchen have found such an anchor in Woodford. They found no such feeling of security or refuge in Clifford. To illustrate: In answering the questions of Judge Stevens, Gretchen stated that some times she got up on the wrong side of the bed and felt as if she were mad at the whole world. She was then asked if when she felt that way she then wanted to go and live with Kemp (Clifford) and Charlotte and she replied, 'No, I would rather stay with my daddy now because he calms me down.' She said he straightened out their problems when she was needling the other children by talking to them in lectures instead of taking them over his knee. She was asked if anything had ever occurred so far as Kemp is concerned which made it difficult for her to get along with him. She said she just didn't feel like Kemp was her real father 'because I know my father's ways now and I don't know Kemp's ways too well.' She said her mother and father had never said anything about Kemp that wasn't real nice. She said it didn't make any difference to her whether she visits Kemp and Charlotte or not-'I mean it would be nice to go see them, but then it would be nice to stay here, too.' When asked if she would rather live with her dad or with Kemp and Charlotte she said, 'I would rather live with my ...