Brown v. Brown

Griffin Smith, Chief Justice, dissenting. When Bobbie Sue’s mother procured a divorce from appellant, the parents had been separated for six months, hence Bobbie Sue was a year and a half old when her father’s acts of indignities directed toward the mother of his three children justified the chancellor in granting a divorce and in awarding the mother full custody of all of the children.

As the majority opinion points out, there were subsequent court proceedings disclosing appellant’s want of respect for the duties of fatherhood. There is a presumption — conclusive in the absence of an appeal — that considerations of sound social policy motivated the decrees and orders. Appellant did not provide the means of support found by the court to be necessary, but that is not the question here.

The mother’s sister and the sister’s husband — Bobbie Sue’s uncle and aunt — took the infant at a tender age and have bestowed upon her all that love can supply or that material means require. The father stood by with an attitude of partial contempt in respect of court orders directing him to contribute to the little girl’s support; and he permitted bonds of love and affection to grow to such an extent that the foster parents, and the child who is now six years of age, each look upon the other with emotions that fondness acquired through association, and love instilled through reciprocal dependence, alone can supply.

Of paramount consideration is the child’s welfare. If I could be persuaded that the father (who turned from the mother of his three children in her hour of direst need, and who to the extent of his parental responsibilities allowed the discarded mother’s sister and her husband to compensate Bobbie Sue for his errancy and the frailties of his nature) — if I could believe that this father is now a better person, and that he and his young wife would follow a course that would erase from the infant’s active consciousness the substituted ties of parenthood the uncle and aunt have supplied, then I would say that these relatives who have done so much for Bobbie Sue could have no alternative- but the satisfaction that comes to those who have served well in circumstances of extraordinary duty, and their reward would be memories of childish laughter and the recollection of things that entered into a beautiful relationship abruptly brought to an end.

But the record does not justify this degree of punishment in a crisis where the father’s fault destroyed a home and transplanted his youngest offspring into an environment where love and solicitude have supplied the deficiencies he brought about.

I know that my associates who make the majority opinion have been beset with doubts. Their problem has not been lightly treated, nor has the result been reached without conscientious consideration. It is therefore with reluctance that this dissent is written; but, feeling as I do, there is no other course.