In Re Kimel

117 S.E.2d 409 (1960)

253 N.C. 508

In the Matter of Irene Pearl KIMEL.

No. 397.

Supreme Court of North Carolina.

December 14, 1960.

*411 Blackwell, Blackwell & Canady, Winston-Salem, for petitioner.

Averitt, White & Crumpler, James G. White, Winston-Salem, and Leslie G. Frye, for respondent.

DENNY, Justice.

A careful examination and consideration of the affidavits, documentary evidence, and oral testimony adduced in the hearing below by the petitioner and respondent, leads us to the conclusion that the findings of fact hereinabove set out are supported by competent evidence. Therefore, the exceptions entered to the findings of fact and the assignments of error based thereon, are overruled.

However, finding of fact No. 7, in our opinion, is not sufficient to support the conclusion that it is for the best interest of the minor child, Irene Pearl Kimel, that *412 her custody be awarded to her mother, the petitioner herein.

The petitioner testified that she has no income whatever of her own. It is clear that she is relying on her husband to support the child. Conceding as true all the petitioner said in the hearing below about her husband's income and his willingness to cooperate in the support of the child if the petitioner is awarded her custody, there is nothing in her testimony to support an order that would bind the husband of the petitioner to support her child. State v. Ray, 195 N.C. 628, 143 S.E. 216. He did not join in the petition or otherwise establish his consent or willingness to assume the legal responsibility for the support of such child if her custody is awarded to the petitioner, and we have been unable to find any statute in effect in Ohio that would require him to support such child.

In our opinion, the burden is on the petitioner to show that, in the event she is awarded custody of the child, resources for the support and maintenance of the child are or will be available.

Certain statements in the testimony of the respondent tend to show that the minor child, Irene Pearl Kimel, has a personal estate of $40,000, or one-half of her father's estate, and that a guardian has been appointed for her in Forsyth County. According to the evidence, Irene Pearl Kimel was never adopted by her father, Shirley A. Kimel, and his wife, Ruth Kimel. Then the question rises: How can she inherit anything from her father? Section 2105.18 of the Ohio Revised Code, Volume 2, Illegitimate children deemed legitimate, provides: "* * * The natural father of a child by a woman unmarried at the time of the birth of such child, may file an application in the probate court of the county wherein he resides or in the county in which such child resides, acknowledging that such child is his, and upon consent of the mother, or if she be deceased or incompetent, or has surrendered custody, upon the consent of the person or agency having custody of such child, or of a court having jurisdiction over the custody thereof, the probate court, if satisfied that the applicant is the natural father and that establishment of such relationship is for the best interest of such child, shall enter the finding of such fact upon its journal and thereafter such child shall be the child of the applicant as though born to him in lawful wedlock."

The agreement referred to hereinabove, dated 9 February 1956, sets out therein that, "Whereas, on the 21st day of June 1955, the said Shirley A. Kimel filed in the Probate Court of Stark County, Ohio, a written declaration subscribed by him and attested by Lawrence W. Renner declaring that the said Shirley A. Kimel is the father of the said Irene Pearl Aungst who was born on January 2, 1952, and the said Ollie C. Aungst of Canton, Ohio, the mother of Irene Pearl Aungst, filed her answer and consent in the Probate Court of Stark County, Ohio, admitting that Shirley A. Kimel was the father of said child and consenting to the change of the name of said child from Irene Pearl Aungst to the name of Irene Pearl Kimel, and the Judge of the Probate Court of Stark County, Ohio, being satisfied that the said Shirley A. Kimel was of sound mind and memory and free from any restraint did therefore order that such facts be entered on the journal of said court and that a complete record of such proceedings be made, also that the name of said child be changed from Irene Pearl Aungst to Irene Pearl Kimel."

There would seem to be no doubt of the legal right of Irene Pearl Kimel to inherit from her father by reason of his compliance with the provisions of the above statute. Furthermore, the Ohio Revised Code, Volume 2, section 2105.06, Statute of descent and distribution, provides: "When a person dies intestate having title or right to any personal property or to any real estate or inheritance in this state, such personal property shall be distributed and such real estate or inheritance shall descend and pass in parcenary * * * in the following *413 course: * * * (B) If there is a spouse and one child or its lineal descendants surviving, one half to the spouse and one half to such child or its lineal descendants, per stirpes."

In our opinion, there is nothing disclosed by the record in this case to support the contention of the respondent that the petitioner had wilfully abandoned her child and, therefore, has forfeited her right to its custody.

This Court, in the case of In re Shelton, 203 N.C. 75, 164 S.E. 332, 334, said: "It is well settled as the law of this State that the mother of an illegitimate child, if a suitable person, is entitled to the care and custody of the child, even though there be others who are more suitable."

To the end that the question of support, and the further question as to whether or not Irene Pearl Kimel does have a substantial estate which she inherited from her father that might be available for her support, may be inquired into and considered in connection with what is for the best interest of said minor, this cause is remanded for further hearing and determination.

Error and remanded.

PARKER, Justice (concurring in the result).

Irene Pearl Kimel will be nine years old on 2 January 1961. When she was four years old, her natural mother granted the exclusive care, custody and control of the child to her natural father, and he had such care, custody and control of the child until his death on 25 November 1959. On 7 December 1957 the natural father married respondent Ruth Kimel. During her natural father's married life the child lived in his home, and was treated by Ruth Kimel as her own child.

On 9 June 1956 the natural mother married Arthur Henry Kuhlins.

It appears that the child inherited $40,000 from the estate of her deceased natural father, and that a guardian has been appointed for her in Forsyth County, North Carolina. The child wishes to live with respondent Ruth Kimel, with whom she has lived since 7 December 1957.

The natural mother, after her marriage, did not seek to obtain custody, nor partial custody, of the child until the child had inherited $40,000. Did the natural mother's interest in obtaining the custody of the child originate when she learned that the child had inherited $40,000? Is her primary interest obtaining the custody of the child or obtaining possession of the inheritance? If custody of the child is awarded to the natural mother, what can or will be done to require the use of the child's inheritance for her exclusive benefit, and to secure its safety? The natural mother has no income of her own, and it does not appear that her husband owns any substantial property, though he has a monthly salary of $385. If her husband agrees to support the child, and then fails to live up to his agreement, how can it be enforced? In my opinion, all of these matters should be investigated and considered by the court in determining what will best promote the interest of the child, for that is the crucial question in this proceeding.

The case of Harris v. Harris, 115 N.C. 587, 20 S.E. 187, 188, involved the custody of a nine and one-half-year-old child. The Court said: "What the preferences of the child were is not found as a fact, though this has weight always with a court in such cases, according to the age and intelligence of the child." See also Spears v. Snell, 74 N.C. 210 (the infant here was thirteen years old), and In re Gibbons, 247 N.C. 273, 101 S.E.2d 16 (the infant here was ten years old) to the effect that the feelings and wishes of the child, according to his mental capacity to form them, who is the party mainly concerned, should be given serious consideration by the court, in the exercise of its discretion, as to the person to whose custody and control the child is to be subjected. In my opinion, the feelings and wishes of *414 the child here, according to her mental capacity to form them, should also be given serious consideration by the trial judge in his determination of her custody.