Bullock v. Bullock

NOURSE, P. J. On November 2, 1933, in a divorce action between Mr. and Mrs. Bullock, a decree was entered denying divorce to either party and awarding custody of tbe minor child — a boy of eleven years — to the mother, subject to tbe boy being placed as a boarding pupil in a certain military school.

On November 9, 1933, tbe mother filed her notice of appeal from the portion of tbe decree denying her a divorce and from that portion directing that tbe child be placed in the military school. On, November 16th the father - filed his petition in the juvenile court charging that the mother had failed and neglected to exercise proper parental control over the child and asking that the child be made a ward of the court free from the custody of the mother as provided in the former decree. The juvenile court granted this petition and the mother appeals.

A preliminary attack is made upon the allegations of the petition upon which the child was brought into the juvenile court. This petition is filled with conclusions of law and expressions of the personal opinions of the pleader. There are just two allegations of fact which, under any possible theory, would justify a hearing on the petition. These are that the mother “has actually failed and neglected to [666]properly care for said minor’s health” and that she had failed “to have said child attend school”.

The order must be reversed for the reason that the petition was insufficient to give the juvenile court jurisdiction and also for the reason that the evidence does not support it. Discussion of the pleading will be deferred to a review of the evidence.

The testimony of the petitioner discloses that the father and mother have been separated since the child was seven months old. Throughout this ten-year period the parents have engaged in bitter controversies over the care and education of the child. When the mother placed the boy in a parochial school the father insisted that he should attend the public schools. When the mother placed the boy as a day pupil in a private military school the father objected that the daily bus ride was injurious to the boy’s health. When the mother planned to place the boy in a public school situated two blocks from her home the father insisted that he be sent to a private boarding-school. These differences of opinion were emphasized in the hearing in the juvenile court, but there is nothing in the record which might be characterized as evidence tending to prove that the mother had failed to care for the child’s health or had failed to have him attend school. The only evidence was to the effect that the mother regularly employed a family physician to give medical care and attention to the boy, that she complied strictly with his directions and advice, and that when she kept the boy out of school it was on the advice of this physician because of his illness.