30 Wn.2d 402, JOHN D. L. FITZGERALD, Appellant, v. JOHN H. LEUTHOLD, RespondentIn the Matter of the Guardianship of JOHN L. FITZGERALD, a Minor W. M. LEUTHOLD et al., Respondents, v. JOHN D. L. FITZGERALD, Appellant
[Nos. 30363, 30364. Department Two.     Supreme Court      April 1, 1948.]
JOHN D. L. FITZGERALD, Appellant, v. JOHN H. LEUTHOLD,
                          Respondent.
In the Matter of the Guardianship of JOHN L. FITZGERALD,
                          a Minor.
W. M. LEUTHOLD et al., Respondents, v. JOHN D. L.
                     FITZGERALD, Appellant.«1»

"In a habeas corpus proceeding instituted by parents to recover the custody of their minor child, it is incumbent upon the one detaining the body of the child to make a return to the writ and show facts justifying his detention of that child."

Appellant further states that the presumption is that Johnny's welfare will best be served by his being in the care and control of his father.

[1] It may be admitted that, upon the death of Johnny's mother, Dr. Fitzgerald's bare natural right to the care, custody, and control of his son was revived, but nevertheless, this being a case involving the custody of a minor, the controlling question before the court is the welfare of the little boy.

414 FITZGERALD v. LEUTHOLD. [30 Wn. (2d)

We are clearly of the opinion that the following general rule stated in Warnecke v. Warnecke, 28 Wn. (2d) 259, 182 P. (2d) 699, is the rule applicable to the facts in this case:

"In cases of this kind, the welfare of the minor children is the sole matter with which the court is concerned. Their custody is of supreme importance, regardless of the claims and personal desires of the parents. Even the wishes of children in such cases must yield to the determination of what is for their ultimate good." (Italics ours.)

The trial court found that:

"John [Sam] and Betty Leuthold are completely devoted to the minor John L. Fitzgerald. Their love for him is deep, sincere and real and he, in turn, loves them and depends on them utterly. Grace and Walter Leuthold are equally devoted. The home life of these four adults is marked by consideration, kindness and affection. Each of them is deeply and sincerely religious [the Leutholds are all members of the Episcopal Church] and under their supervision the minor John L. Fitzgerald is receiving careful early religious instruction. John and Betty Leuthold, in the care of the minor, make provision for his companionship with children of his own age. He is a well trained, obedient child, kept to a regular schedule and under the supervision of John and Betty Leuthold is receiving physical and emotional training that is ideally suited to his temperament. John and Betty Leuthold are eminently fit persons to have the care, custody and control of the minor and his welfare will be best served by entrusting him to their custody."

The evidence is so conclusive that appellant admits all of the facts stated in the above finding, except that the welfare of Johnny will be best served by entrusting him to Sam and Betty Leuthold. Specifically, the doctor admits that the Leutholds are a congenial, happy family group; that Walter and Grace love children; that Sam and Betty have for Johnny the same love and affection parents would have, and that Johnny has for them the love a child has for its parents; that Johnny was shown to have been shy and nervous, a little lost boy, shortly after his mother's death, and that he was shown to have "come out of it" and to be a normal, healthy boy; that Johnny is receiving religious training in the Leuthold household, and that Sam, Betty,

Apr. 1948] FITZGERALD v. LEUTHOLD. 415

Walter, and Grace Leuthold are all persons of sincere and deep religious faith.

One of the most convincing pieces of evidence showing the interest and love that all of the Leutholds have had for Johnny since his birth is defendant's exhibit No. 2, which consists of some seventeen pages of photographs showing Johnny and his mother, and Johnny and other members of the Leuthold family, from the time of his birth up to May, 1947. These pictures, many of which were taken at a time long before the instant proceedings were contemplated show more plainly than words the attitude of every member of the family towards Johnny.

As stated, appellant admits the facts above stated but contends that, notwithstanding such facts, he should not be deprived of the custody of his son, unless it appears from the evidence that he is utterly unfit to have such custody. He contends that the evidence does not show such unfitness.

[2] It may be admitted that a natural parent should not be deprived of the custody of his or her child merely because some person other than such parent may desire to have the care and custody of such child, and may have more of this world's goods with which to give the child advantages which the natural parent cannot give.

[3] But can it be said that the trial court was not justified in concluding that appellant was unfit to have the care and custody of this little boy, when it appears by his own testimony that his moral standards are such as to permit him, at a time within a month prior to his marriage to Caroline, and when he was professing love for her and attempting to gain permission of his mother and Caroline's parents to an early marriage, to indulge in relations with another woman, such as he admitted having had with Mrs. X, and to continue to keep in contact with this woman for a considerable time after his marriage; and which standards are such as to permit him to endeavor to persuade his wife to obtain a collusive divorce from him in Canada, he to furnish the evidence which would form the basis for the divorce in order, as he said, that he could be free.

416 FITZGERALD v. LEUTHOLD. [30 Wn. (2d)

We reiterate, can it be said that the trial court was not justified in concluding that this man was unfit to have the care and custody of his son - this man who professes such love for his son and yet who admits that he agreed that his wife should have the custody of their son, who was willing to sever all relations with him and did not even desire the right of visitation, and who even contemplated that Caroline might marry again and that her future husband would probably want to adopt Johnny - this man who had seen his son only three times for short periods before he came to Spokane in March, 1947, and who had made no effort to see him after Caroline obtained her divorce - this man who admits that during his college days and during the time he was doing his intern work he was accepting from his mother almost half of her income for his maintenance, and who will be largely dependent upon her and his present wife for some time to come - this man who has no home of his own to which he could take Johnny (and it is problematical when he will have) - this man who comes to Spokane and registers at a hotel under an assumed name?

Why did appellant register under an assumed name? In so far as the record shows, the Leuthold family had shown him every consideration, and there would seem to have been no reason, if the doctor had the welfare of the child at heart, why he could not come openly to Spokane and talk to the Leutholds openly and frankly about the boy.

And again we ask, why this sudden interest in Johnny?Can it be that the doctor's interest was in any way motivated by the fact that Johnny, under his mother's will, had inherited an estate valued at between $250,000 and $300,000?The doctor denies that he was influenced by this fact, and attempts to support his position by stating that he was not asking to be appointed guardian of Johnny's estate. However, we think it quite apparent that if the doctor were awarded Johnny's custody, he would be justified in asking that the court make a reasonable allowance to him for the boy's support and education.

There is another occurrence shown by the record, which is difficult to associate with a father who has the best

Apr. 1948] FITZGERALD v. LEUTHOLD. 417

wishes of his son at heart. It will be remembered that Caroline's will was made prior to her marriage to Dr. Carnahan. She never changed her will after this marriage. Dr. Fitzgerald did not remember just the date when he saw Caroline's will, but he had knowledge of it. The following questions were asked the doctor in regard to this will:

"Q. Do you know, also, that it is the law of the state of Washington that if Dr. Carnahan, and only Dr. Carnahan, sees fit to do so, he may set aside this will, by virtue of that fact take away half of the property which the will gives to Johnny? . . . Q. Do you know that? A. I assume that to be correct, that he could do so. Q. And by virtue of doing that, that would take from Johnny half of the estate that his mother gave him by her will? A. I assume that to be correct. . . . Q. Dr. Fitzgerald, you stated that you assumed that was correct. Had you been informed of that correctness by an attorney? A. I think I was informed of it at home, sir. Q. In Canada? A. Yes, sir. Q. By your attorneys? A. Yes, I believe that is correct. . . . BY THE COURT: Q. In any event, you had that in mind at all times after the death of Caroline?A. I don't understand you, sir. Q. You had that knowledge in mind? A. I had that knowledge in mind. Q. At all times after her death? A. Yes."

It is not material here whether or not what the doctor understood to be the law is in fact the law of this state. The material fact is that he assumed the above to be the law.

Having in mind the above situation, and also having in mind that under Caroline's will, Sam Leuthold was made the residuary legatee in the event of the death of Johnny, without issue, we find counsel for appellant calling Dr. Carnahan and asking for an interview. Dr. Carnahan called at the office of counsel for appellant, and there Caroline's will was discussed, and the doctor was informed that the will was null and void, as it was made before his marriage to Caroline, and he had not been mentioned in it. He was also informed that he had six months in which to contest the will. He testified:

"Q. Did he say to you what would be the financial result to you of contesting the will? A. I believe he did

418 FITZGERALD v. LEUTHOLD. [30 Wn. (2d)

mention that it would be divided equally between the father and the son. Q. Half would come to you and half would come to Johnny? A. Yes. Q. Under the terms of the will it all goes to Johnny, did you know that? A. Yes, sir."

Dr. Carnahan was also informed that, if he contested the will, there was a chance that he would be appointed administrator. However, the doctor stated that he had already been advised by the attorneys for the Leutholds of his right to set aside the will if he desired to do so.

The only inference which can be drawn from the facts disclosed by the foregoing testimony is that Dr. Fitzgerald, believing the legal situation to be as above stated, was willing that Johnny be dispossessed of one half of his estate, in order that the Leutholds be removed from the picture as executors of Caroline's will and trustees of Johnny's estate, and that Sam Leuthold lose any right he might have as residuary legatee. It would also follow that, if Caroline were decreed to have died intestate, the doctor would become Johnny's heir.

We think no further comment necessary in regard to the facts last above stated.

It may be admitted that Dr. Fitzgerald's family stood by him in these proceedings, although undoubtedly it must have been something of a shock to his mother and the doctor's present wife to learn some of the facts revealed in the hearings, for undoubtedly appellant's mother is a fine woman, as is his present wife. His mother stated that she was willing to continue to contribute to the support of the doctor and his family until he was able to maintain them, apparently contemplating that this situation would continue at least until sometime in 1950. She was willing that the doctor, his wife, and Johnny live in her home, and she hoped that, when the doctor started to practice, he would take over her home. His present wife stated that he had talked with her about Johnny before they were married, and that while she would like to have children of her own, she was willing to take Johnny; that she had agreed to contribute, if necessary, from her own money the sum of one

Apr. 1948] FITZGERALD v. LEUTHOLD. 419

hundred dollars per month to help support the family. The present Mrs. Fitzgerald has no children of her own and had never seen Johnny until she came to Spokane for the hearing.

The Fitzgerald family is an old Canadian family. Appellant's father was an eminent man in Toronto in the medical profession. It would seem to us to be perfectly proper, in considering whether or not Johnny's welfare would be best served by awarding his custody to his father, to consider the environment which would surround him in his new home, and in so doing to consider whether or not, regardless of the professed desire of the members of the Fitzgerald family to have this little boy, he would be received into the family and given the love and affection which is his due, in view of the fact that indirectly he was the cause of all the unfavorable publicity given to appellant by these proceedings.

Appellant stresses the testimony of his character witnesses, who testified to the effect that they knew of no reason why appellant would not be a proper custodian of his minor son. Among these witnesses, whose depositions were taken in Toronto, was Dr. Henry John Cody, chancellor of the University of Toronto. Dr. Cody was a man seventy-eight years of age. He had been a friend of appellant's father and mother for many years. The chancellor had recommended appellant's father for the deanship of the faculty of medicine of the University of Toronto.

Mr. George Franklin McFarland, justice of the high court of justice of the province of Ontario, had known appellant's parents for forty years. His family and the Fitzgerald family had visited back and forth. The justice stated he had never heard anything against appellant.

Dr. Archie McCallum, medical director general for the Royal Canadian navy, knew appellant as one of his medical officers. The doctor's knowledge of appellant was confined largely to his interrogation of appellant, and he could not point to any person to whom he had talked about appellant.

Mr. Hendrik Peter Van Gelder, at the time his deposition was taken, was consul of the Netherlands, in Toronto.

420 FITZGERALD v. LEUTHOLD. [30 Wn. (2d)

He had known appellant's father and mother since 1912. When the witness was married in 1927, Dr. Fitzgerald, Sr. was his best man.

Dr. Herbert K. Detweiler is in the private practice of medicine in Toronto. The witness knew appellant's father when the witness was a student and Dr. Fitzgerald, Sr., was a lecturer at the University of Toronto.

It may be admitted that all of the above-mentioned gentlemen are men of prominence, and it may be also admitted that they were sincere in stating that they knew of no reason why appellant would not be a proper custodian for his minor son. However, it does not appear that any of these witnesses knew any of the facts which were brought out in this proceeding, and which formed the basis for the court's conclusions. After reading the testimony of these gentlemen, we are strongly impressed that, to a very large extent the real basis of their opinion of appellant is found in a statement made by Dr. Cody that

". . . everybody knew him as his father's son. Naturally, he was the son of the most outstanding medical man on the staff [of Toronto University]."

Dr. Fitzgerald took the deposition of two other character witnesses, one of whom was Mr. Robert Stuart, a young man about the age of the doctor. He first met appellant when they were both attending Upper Canada College, from 1928 to 1934. This witness stated that he had been in the Fitzgerald home many times, and the doctor had been in his home. Mr. Stuart did not see appellant after the latter went to Baltimore, except on one occasion after the doctor had finished at Johns Hopkins. Mr. Stuart saw appellant again in the spring of 1946 and has seen him frequently since that time. Mr. Stuart stated he had never known the doctor to use liquor to excess, and that he knew of no reason why appellant should not have the custody of his son.

Mr. Daniel Lang was also called as a character witness. This young man was twenty-seven years old, and not married. He also knew appellant at Upper Canada College.

Apr. 1948] FITZGERALD v. LEUTHOLD. 421

The witness saw very little of appellant from the time he finished the preparatory school until he met him in Halifax in 1943, on an occasion when Lang was passing through. He next met the doctor in 1944, when he was appointed to a ship in the Canadian navy upon which appellant was the medical officer. Mr. Lang and appellant were on the same ship from October, 1944, to April, 1945. Mr. Lang stated that in the fall of 1945 appellant telephoned him to the effect that he had parted company with his wife, Caroline. Mr. Lang was of the opinion appellant would be a proper custodian for his son.

We have read the cases cited by appellant. We fully appreciate what was stated in some of them, such as Lovell v. House of the Good Shepherd, 9 Wash. 419, 37 Pac. 660, 43 Am. St. 839, relative to the rights of the natural parent, and we do not desire to be understood as holding that the rights of the natural parent are not to be given consideration in custody cases. However, the facts in the particular case must be considered in order to understand the basis of the opinion, and, when that is done, we are of the opinion that we have consistently announced that in custody cases the controlling question is the welfare of the minor. As stated in Pardee v. Pardee, 21 Wn. (2d) 25, 31, 149 P. (2d)522:

"The court, in arriving at what would be best for the welfare of these young children, had many things to consider - not only the fitness of the respective parties, but also the homes to which the children would be taken, the financial ability of respondent to provide for the children wherever situated, and other questions which the trial court was certainly better able to determine from observing all the witnesses than are we from reading a cold record."

After a consideration of all the testimony in this case, and the many exhibits introduced, we are clearly of the opinion that there is ample evidence to support the finding of the trial court that appellant is an unfit person to have the care and custody of this little boy, nothwithstanding that Johnny is his own son, and also to support the finding that the welfare of Johnny will be best served by leaving him in the custody of Sam and Betty Leuthold.

422 FITZGERALD v. LEUTHOLD. [30 Wn. (2d)

It follows that the trial court did not err in concluding that appellant's petition in the habeas corpus proceeding should be dismissed; that Johnny should remain in the custody of John H. (Sam) Leuthold until the further order of the court; and that respondent John H. Leuthold should have judgment against appellant for costs. The court did not err in entering judgment in accordance with such conclusions.

For the reasons herein stated, the judgment of the trial court in the habeas corpus proceeding is affirmed.

The guardianship matter was heard on July 7, 1947, and a decree was entered the same day, appointing John H. (Sam) Leuthold guardian of the person and estate of Johnny. From this decree, Dr. Fitzgerald has appealed.

It will be remembered that all the evidence introduced in the habeas corpus proceeding, in so far as material, was to be considered by the court in this action.

It will also be remembered that Caroline, at the time of her death, was the owner of a twenty per cent interest in the Deer Park Lumber Company, a partnership, and also had an interest in the holding corporation, Deer Park Pine Industries, of which Sam Leuthold was president. In addition to the interest Johnny had in the estate of his mother, he was also the beneficiary of an insurance policy which Caroline carried, in the amount of $5,000, and of certain bonds of the face value of about $18,000, making a total of between $22,000 and $23,000.

While appellant asked to be appointed guardian of the person of his minor son, he asked that some trust company be appointed guardian of Johnny's estate, and contended that Sam Leuthold should not be so appointed, for the reason that there might be a conflict between the interest of Sam and that of his ward. Appellant claimed that this possibility of a conflict might arise, because part of the estate of the minor consists of stock in the Deer Park Pine Industries, of which Sam is president, and a partnership interest in the Deer Park Lumber Company, Sam Leuthold also holding an interest in both concerns, and because Sam Leuthold is a contingent remainderman under the will of Caroline.

Apr. 1948] FITZGERALD v. LEUTHOLD. 423

The integrity of Sam Leuthold has not been questioned in these proceedings, nor has the fact that he has the same love and affection for Johnny as he would have for a son of his own. It would seem that, in working to make his own interest in the above concerns more valuable, he would of necessity make the interest of his ward more valuable. There can be no question but that Caroline had the greatest confidence in her brother Sam, for she made him one of the executors of her will, and one of the trustees to administer the trust set up for Johnny.

It is also apparent that Caroline was satisfied with the manner in which the affairs of the Deer Park Lumber Company were being conducted, as she directed in her will that her share in the partnership be not withdrawn upon her death, and she authorized her executors and trustees to do all acts and things deemed necessary, advisable, or proper to facilitate the continuance of the business, to the end that such business should not be hindered or interfered with in any degree by her death.

In view of the situation presented by the record as we see it, we cannot visualize that there could be or will be such a conflict between the interests of Sam Leuthold and his ward as would cause Sam to take any action which would be detrimental to the interest of his ward. To the contrary, it seems to us that there is every reason in this case for the appointment of Sam Leuthold as guardian of Johnny's estate, in order that the two concerns hereinbefore mentioned be permitted to operate as they have in the past.

[4] Again, we are satisfied that the trial court was entirely justified by the evidence in this case in making Johnny a ward of the court; in appointing Sam Leuthold guardian of his person and estate and awarding to Sam Leuthold the care, custody, and control of the minor; and in dismissing the cross-petition of appellant.