# Mullen v. Mullen

> Supreme Court of Virginia · September 8, 1948 · 188 Va. 259

URL: https://www.frixlaw.com/law-library/cases/6821919

## Case

- **Full name:** Elizabeth Wangler Mullen v. James W. Mullen, II
- **Court:** Supreme Court of Virginia
- **Decided:** September 8, 1948
- **Citations:** 188 Va. 259; 49 S.E.2d 349; 1948 Va. LEXIS 163
- **Precedential status:** Published
- **Opinion:** Dissent by Hudgins
- **Judges:** Buchanan, Eggleston, Gregory, Hudgins, Spratley, Staples
- **Cited by:** 70 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6821919

## Opinion text

Hudgins, C. J.,
dissenting.
I am in full accord with that part of the majority opinion which declares that the evidence introduced conclusively supports the chancellor in granting the husband a divorce a mensa et thoro-, I am equally strong in my conviction that the decree of the chancellor awarding custody of the child to the father for a major part of every year should be affirmed.
The statute, section 5111 (Michie’s Code) empowers the trial court to award the custody of minors in all controversies between husband and wife in this language: . . the court may make such further decree as it shall deem expedient concerning . . . the care, custody, and maintenance of their minor children, and may determine with which of the parents the children or any of them shall remain.” Further power is given the court to change the custody “as the circumstances of the parents and the benefit of the children may require.”
It will be noted that the discretion to be exercised is the discretion of the trial court, and not the discretion of this court. This court heretofore has held that the discretion of the trial court will not be disturbed unless the evidence clearly shows that it has been abused. This principle is firmly inbedded in the decisions of this court. We said in Butler v. Butler, 145 Va. 85 , 133 S. E. 756 : The Supreme *278 Court of Appeals “has always been loath to interfere with the discretion of trial courts in matters touching custody of minor children. It seems (sees) no reason for doing so in this case. The evidence indicates that the respondent is a far more stable person than complainant to rear these infant children, but if he should prove an improper custodian, it is always in the power of the court, and it would be its duty, to make such other provision for the care and custody of these infants as would promote their best interests.” To the same effect, see: Meyer v. Meyer, 100 Va. 228 , 40 S. E. 1038 ; Markley v. Markley, 145 Va. 596 , 134 S. E. 536 ; Duff v. Duff, 145 Va. 526 , 134 S. E. 555 ; Martin v. Martin, 166 Va. 109 , 184 S. E. 220 ; Elam v. Elam, 182 Va. 469 , 29 S. E. (2d) 222 .
There is another principle which the majority opinion ignores—or rather refuses to apply—namely, that the innocent party upon whose prayer the divorce is granted, other things being equal, usually will be given the custody of the children. Owens v. Owens, 96 Va. 191, 196 , 31 S. E. 72 ; Martin v. Martin, supra; Nix v. Nix, 186 Va. 14, 20 , 41 S. E. (2d) 345 . Mr. Justice Gregory, speaking for the court in the Nix Case, said: “In cases of this nature the general rule is that the innocent parent is entitled to the custody of children. In this case there is no fact or circumstance shown by the record which would require us to withhold the application of the general rule.” This statement and the application of the general rule is fully warranted by the evidence in this case.
Human experience supports the conclusion that it is not best for young children to be deprived of the care of either mother or father. The unwarranted, the unreasonable action of the mother in this case is conclusive of the fact that she, without cause, brought about a situation which will inevitably deprive her child of the care, the tenderness, and the training of either the father or the mother.
When a marriage barque is wrecked upon the rocks that appear upon every sea of matrimony, the innocent child of the marriage is the helpless victim. The weeping mother *279 and the grief-stricken father have our compassion, but the welfare and best interests of the child are our paramount consideration. The awarding of such care and custody involves a most difficult and perplexing question. No court can be positive, at the time, that its award will prove to be for the best interests of the child. This uncertainty is the reason that the General Assembly in Code, section 5111, empowers the court to alter or change the custody as subsequent events might prove to be for the child’s welfare. To this welfare the personal desires of the parents must give way. What is best for the future welfare of the child is the controlling factor in determining its best interests, not its immediate happiness.
The majority of the Court yields to the protestation of love and affection that this mother claims to have for her child. Yet this love and affection was not sufficiently strong to restrain her from leaving her husband without cause.
The husband provided his family with a comfortable home in one of the best residential sections of Richmond, and one in keeping with his social standing. While the home was owned by the husband’s parents, it was large enough to comfortably house two families. The wife’s allegation and testimony to the effect that her husband made no attempt to provide a home separate and apart from his parents was refuted by the overwhelming weight of the testimony, and it is so declared in the majority opinion. The fact that the shortage of housing and the lack of domestic help reached its most acute stage in 1946 made no impression upon her, a fact which shows that she either lacks sufficient stamina, or entirely disdains the effort to meet the realities of life.
Another bit of evidence tending to show her instability is the fact that in the summer of 1946, while she and her child were on a visit to her mother in Madison, New Jersey, she wrote her husband, early in August, a most ardent and intimate letter in which, in substance, she said she was counting the moments until she could return to his arms and be *280 invigorated by his kisses. This letter shows that relations between her and her husband were not only pleasant and cordial, but most affectionate; yet within two weeks thereafter, and without apparent rhyme or reason, she wrote him that she was not going to live with him any longer, but was going to Reno, Nevada, to obtain a divorce and asked her husband to surrender the care and custody of the child and for separate maintenance for herself and child.
She regarded the marriage vow like a child who on being handed a box of candy, takes a piece and bites into it, puts it back, and selects another piece in an effort to find a sweet to her taste. She has a complete disregard for the dignity of marriage and all that it implies.
We can only judge the future by the past. If this wife has so little conception of the dignity, obligations, and responsibilities of the marriage vows, how can a court with any degree of certainty decide that she will not regard the obligations and responsibilities of motherhood in the same light vein? A child needs not only love and affection, but it needs to be trained to meet the responsibilities of life, to be taught the sanctity of an obligation, obedience to those in authority, and an intelligent understanding of the verities of life. How can it be expected that this child will be so taught and trained in these fundamentals by an emotional, unstable mother who ignores them herself? Judge Keith, speaking for the court on this phase of the question in Owens v. Owens, supra, said: “The innocent parent on whose prayer the divorce is granted will usually have the custody of the children.. A woman compelled by her husband to resort to divorce ought not to obtain it at the expense of losing the society of her children. And as one who has done well or ill in the marriage relation will be likely to do the same in the parental, all courts lean to the innocent parent when determining the custody of the child.” In the Nix Case, cited above, this court for the same reasons awarded the custody of a child to its father.
The financial ability of either spouse to support, maintain, and educate the child is not the dominating factor in deter *281 mining which should have its custody, but it is a factor to be considered.
Mrs. Mullen has no income or property of her own; she is wholly dependent upon her mother, Mrs. Margaret Wangler, who is herself a divorced woman, engaged in the real estate brokerage business. Like her daughter she has no income other than what she earns. She maintains a separate real estate office, and testified that her net income for 1946 was $31,081.14 and for the preceding year $23,000. While this is a substantial income, it varies from year to year, and is dependent upon economic conditions and the activities of the broker. Regardless of her income, she is under no legal obligation to support her daughter or her granddaughter and has not promised to do so. The present and future financial outlook of the wife is not bright. She testified that she is occupying an apartment which contains a combined living room and bedroom, a kitchen, and bath, with an enclosed porch. She has studied stenography and can type now, but it would take her some time to refresh her shorthand. She has not sought employment because she has devoted her whole time to her child except for three hours a day when the child was in a nursery school. She is allowed in the majority opinion $110 per month for the support of the child but nothing for her own maintenance. Under these circumstances necessity will compel her to seek employment, in which event it will be necessary to employ a nurse to look after the six-year-old child. Therefore, the mother will be in no position to give any more personal care to the child during business hours than the father.
Mr. Mullen, the husband, on the other hand, has a business of his own, and within two years his salary has been increased from $6,000 to $10,000. He is the only child of wealthy parents, and has taken his doctor’s degree in chemistry. He was so proficient in this line of endeavor that his services were commandeered by the government and, during the war, he was required to devote his time and ability to developing chemicals for war purposes. He is in a position now to give his child a comfortable home, his personal care, *282 and to supervise her training and education, in which he will be aided by both his mother and father. His financial outlook is bright, the possibilities being that his income will be increased from year to year. The present and future financial ability of the husband to support, maintain, and educate the child is fully established.
While Mrs. Mullen, senior, the paternal grandmother, may not be as efficient or as understanding in her love and tenderness for the child as a normal mother would be, we are not dealing with a normal mother. At least the grandmother’s love, care, and tenderness for her granddaughter are very superior to those of any hireling, and she has expressed an earnest desire to give her grandchild all the love, care, and tenderness of which she is capable.
It is stated in the majority opinion that the welfare of the child is the primary, paramount, and controlling consideration of the Court in all controversies between parents over the custody of their minor child. The following cases are cited to support that statement: Stringfellow v. Somerville, 95 Va. 701 , 29 S. E. 685 , 40 L. R. A. 623; Parrish v. Parrish, 116 Va. 476 , 82 S. E. 119 , L. R. A. 1915A, 576; Fleshood v. Fleshood, 144 Va. 767, 770 , 130 S. E. 648 ; Markley v. Markley, 145 Va. 596, 602 , 134 S. E. 536 ; Darnell v. Barker, 179 Va. 86, 93 , 18 S. E. (2d) 271 ; Elam v. Elam, 182 Va. 469, 472 , 29 S. E. (2d) 222 . This is a correct statement of the law in Virginia, but in no case cited has this court gone as far in denying an innocent spouse the custody of his child as the majority opinion goes in this case.
In three of the above cases, Stringfellow v. Somerville, Parrish v. Parrish , and Fleshood v. Fleshood , the question of custody arose on a writ of habeas corpus. In the Stringfellow Case the mother with the consent and acquiescence of the father had given her child to her two sisters to be reared. After the sisters had retained the child for six years, the father sought its custody. The trial court weighed the claims of the two sisters and the father and determined that, under the circumstances of the case, the father had sur *283 rendered his rights to the custody of his child. In the Parrish Case, the father, a citizen of Chicago, had obtained a divorce from his wife in that city. At the time the divorce decree was entered the mother was living with the child in Suffolk, Virginia. The mother proved that she was in a financial position to support and maintain the child, and that the child’s health might be seriously impaired if it were required to live in Chicago. The trial court agreed with this view and awarded the mother the custody for nine months of the year, authorizing the father to have the custody for the three summer months. Judge Keith, speaking for the Court, said:
“As we have said, the evidence fully sustains the finding of the court, and it cannot be read without sincere regret that a man and a woman who, with respect to others, have established the reputation and character among those with whom they have lived which they have won for themselves, should not by mutual forbearance and compromise be able to live together and give to their infant son the strength and support which is due from a father tempered by the tenderness and love which is always present in a mother’s heart.
“There is no duty which a court has to perform more difficult than that which confronts us in this case, for whatever our decision may be, we are compelled to turn a deaf ear to the pleadings of nature, separate a parent from its child and deprive the child of the care and nurture of one of its parents. As the wisest solution of this difficulty, the tendency of the courts has been, especially in recent years, to consider all the facts and circumstances of the particular case, and to determine what is best for the present and future interests, moral and physical, of the child. Our law fully recognizes the primary right of the father to the custody of the child (Carr v. Carr, 22 Gratt. (63 Va.) 168; Latham v. Latham, 30 Gratt. (71 Va.) 307); but it is also well established that ‘where he has not the custody and is seeking to be restored to it, the court will exercise its discretion according to the facts, consulting the wishes of the minor if of years of discretion; if not, exercising its own judgment *284 as to what will be best calculated to promote the interests of the child, having due regard to the legal rights of, the party claiming the custody.’ ”
The maternal grandfather to whom the child had been given by the father on the death of the mother in Fleshood v. Fleshood, supra, filed a petition for a writ of habeas corpus against the father who had claimed the child. The trial court awarded the custody to the maternal grandfather. On appeal the temporary possession of the child was given to the father with direction that he be required to keep it at the home of his father on the ground that the wife, son, and daughter of the maternal grandfather had died of consumption; that another son had been stricken and was in a sanatorium; that the health of the daughter upon whom would fall the care of the child was precarious; and that, hence, the child’s health might be seriously impaired if required to stay there. This court, however, ordered the case to be retained upon the docket to give the maternal grandparent an opportunity to remove the menace to health from his home.
The trial court in Markley v. Markley, supra, granted the husband a divorce and the custody of his 6/2 year old child. This court affirmed the decree as to the divorce but gave the custody of the child to the mother without prejudice to the right óf the father to apply to the trial court for modification of the decree. The basis of the decision seems to have been as follows:
“The record discloses that it is the intention of the complainant to place the child in the home of his parents, who reside in the city of Roanoke. While it does appear that the paternal grandfather has expressed a willingness to have the child brought to his home, it nowhere appears that this willingness is shared by the paternal grandmother, who, the record shows, is a semi-invalid. It also appears that living in the home of complainant’s parents is an invalid sister. As the business of the father is conducted in Salem, Virginia, it is apparent that he is not often in a position to devote the requisite care and attention to the child that its tender years *285 require. On the other hand, the record discloses that it is the one desire of the maternal grandparents that they share the responsibility with the mother in the rearing and support of the child.”
The facts in the Markley Case are not similar to the facts in the case now under consideration. The maternal grandparents with whom the mother and child had been living for approximately three years desired to share the responsibility with the mother in the rearing and support of the child. In the case now under consideration the maternal grandmother, although she stated she had an income in 1946, of more than $31,000, has indicated no purpose or desire to share the mother’s obligation, financial or otherwise. She did advance the money for the support of the mother after the mother left the father, but the trial court ordered this money repaid to the mother. In the Markley Case the father conceded the fitness of the wife as custodian and the parity of the living conditions offered by her parents. No such concession is here made nor do the facts in my judgment support any such conclusion.
The facts in Darnell v. Barker and Elam v. Elam, supra, are entirely dissimilar to the facts in the case now under consideration. The fundamental principles were restated in each case and in each case the innocent party was awarded the custody of the child.
In affirming the judgment of the trial court in the Elam Case, we said: “The chancellor could have granted the prayer of either parent, or he could have refused the prayers of both parents and placed the child in the custody of the State Welfare Board. However, in the exercise of the sound discretion with which the statute clothes him, he decided that the welfare of the child required that his care and training be entrusted to the wife and the mother, notwithstanding the fact that she had misconceived her duty to secure an absolute divorce before attempting to contract marriage with another person. The suit is still pending on the docket. The order awarding custody may be changed to meet the exigencies of the situations which hereafter may *286 be brought to the attention of the court.. Viewing the case as a whole, this court cannot say, as a matter of law, that the chancellor, in reaching his conclusion has abused the discretion reposed in him.”
Without further elaboration, the principal reasons which convince me that the innocent spouse should be awarded the custody of the child may be summarized as follows:
(1) The wife has failed to carry the burden that the law places upon her to point out wherein the trial court abused the discretion imposed upon it by statute.
(2) The husband proved by the overwhelming weight of the evidence that he was not guilty of any of the charges his wife made against him.
(3) The wife is emotionally unstable and is not mentally endowed with sufficient stamina to face the realities of life.
(4) The wife without cause broke her marriage vows. There is no reason to believe that she would be any more faithful in performing her parental duties.
(5) The wife is now, and will be for sometime to come, financially dependent upon the charity of her mother, or she will seek gainful employment. If she is employed, the care and training of the child in business hours will have to be entrusted to a hireling.
(6) The physical environment which the child will enjoy in the custody of the father will be far superior to anything that the mother or the maternal grandmother will be able to give her.
(7) The laudable desire of a parent to participate in the care, custody, and training of his or her child is the strongest link in the chain that binds a husband and wife together in times of stress, discord, and disagreement. It is a strong incentive which brings about mutual forbearance, concessions, and compromises, that enable the parties to live together and share in the love, affection, and training of the offspring. If the mother knows that, notwithstanding the fact that she has been guilty of breaking the marriage vows, she will be given the custody of infant children, much of the incentive for exercising such forbearance, concessions. *287 and compromises will be removed. Unfortunately, this will be the result of the conclusion reached by the majority.
As I view the case, the decree of the learned chancellor should be affirmed.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6821919. Public record. Not legal advice.