Reversing.
Stella Thornsberry and Charles Coleman were married April 7, 1923; she was then 20 years old and he was 18. After living together about four months, they separated. On January 17, 1924, their child, Edwin Gray Coleman, was born. A reconciliation then occurred, and she returned to her husband. But they soon separated again, and on December 18, 1924, she filed an action for divorce on the ground of cruel and inhuman treatment. The grounds of divorce were clearly proved, and on April 23, 1925, she was granted a divorce, but nothing was said in that action about the child. After she separated from her husband and when she was in very bad health she was living with her sister. Charles Coleman's parents came to see her, and they say, in substance, that she gave up the child to them. She says that she agreed that they might take the child and keep it until her health got better. They took the child to their house and kept it. On December 4, 1926, after she had married Russell H. Baker and they were keeping house, Baker being a railroad employee in the office of the C. O. Railway Company at Pikeville, she filed this suit against Charles Coleman, his father and mother, asking that the custody of the child be committed to her. The issues were made up; voluminous proof was taken, and on final hearing the circuit court dismissed her petition. She appeals.
Section 2016, Kentucky Statutes, provides that the father and mother shall have the joint custody of their infant child or children, and, in the event of the death of either, the survivor, who is suited to the trust, shall have such custody. In this case neither of the parents is dead. In Moore v. Smith,
In Preston v. Preston,
Applying these principles here, the court has no difficulty in determining that the custody of the child should not be committed to the father. He is a traveling man. He has no home of his own. He is very dissipated. When he is at home, he drinks. He is the father of a child born out of wedlock since his wife left him, and the treatment of his wife, as shown in the divorce proceedings, shows him an unfit person to have the custody of the child.
The question then arises, should the custody of the child be committed to the mother or the grandparents? The grandparents are worthy, good people, living on a farm. They both are about 60 years old, and, while they are much attached to the little boy, they have much to do, and the child is in fact without a mother's control and all that this implies. On the other hand, the mother lives in Pikeville; she and her husband are able to give the child a home and provide for it and give it better educational advantages than it can obtain in the country. The defendants introduced a mass of evidence to show improper conduct on the part of the mother and her bad character. It would serve no good end to set out here the proof, pro and con, on these questions; suffice it to say that, upon the whole record, the court is satisfied that there was no improper conduct by Mrs. Baker in the matters relied on, and the record as a whole satisfies the. court that she is a lady of good character and a suitable person to have the custody of the child. Having in view the welfare of the child, it is the settled practice for this court to award the custody of a child of tender years to *Page 476
the mother, unless it appears that she is not a suitable person, subject to the right of the father to see the child at reasonable times. Hoffman v. Hoffman,
While this court gives much weight to the finding of the chancellor on questions of fact, in cases like this, it must give judgment as the right of the case requires, where on all the proof the court is satisfied as to the real facts.
Judgment reversed, and cause remanded for a judgment as above indicated in favor of the mother.