Eilers v. Eilers Brief for Appellant

    (Hmtrt f j  Appeals ni Kmiutky
No. F-110-66

A nna F rances F ilers (now Anna Frances Anderson),
Appellant,

— 'v.—

George F. E ilers,
Appellee.

APPEALED FROM JEFFERSON CIRCUIT COURT, CHANCERY BRANCH

BRIEF FOR APPELLANT

J ames A. Crumlin
608 West Walnut Street 
Suite 503
Louisville, Kentucky 40202

J ack Greenberg 
J ames M. Nabrit, III 
Leroy D. Clark

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellant

A n t h o n y  G . A m s t e r d a m  
3400 Chestnut Street 
Philadelphia, Pennsylvania 
- Of Counsel

This is to certify that a copy of this brief 
has been served on the adverse party and 
the trial judge pursuant to RCA 1.250.

Attorney for Appellant



TABLE OF CONTENTS AND AUTHORITIES

PAGE

Questions Presented .......................................................  1

Statement of the Case ....................................................  3

A rgument—

I. The Court Below Erred in Granting Custody of 
Appellant’s Children to Their Father and in 
Denying Custody to Their Mother.......................... 14

A. The Court below failed to properly apply the 
principle that the mother has the paramount 
right to custody of young children, where there 
were no valid grounds for finding her unfit or 
incapable of properly caring for the children .... 14

KRS 403.070 ..................................    14
Clark v. Clark, 298 Ky. 18, 181 S.W.2d 397 .. 14 
Hatfield v. Derossett, Ky., 339 S.W.2d 631 .... 14 
Callahan v. Callahan, 296 Ky. 444,177 S.W.2d

565 ...............................       14
Estes v. Estes, Ky., 299 S.W.2d 785 ............  14.
Byers v. Byers, Ky., 370 S.W.2d 193 ..........  14
Hinton v. Hinton, Ky., 377 S.W.2d 888  ...... 14
Wilcox v. Wilcox, Ky., 287 S.W.2d 622  ...... 14
McElmore v. McElmore, Ky., 346 S.W.2d 722 14 
Salyer v. Salyer, 303 Ky. 653, 198 S.W.2d

980 .............................................................  14
Price v. Price, 214 Ky. 306, 206 S.W.2d 924 14

B. The Court below erred by applying improper 
and discriminatory standards for determining 
custody by the manner in which it compared the



11

mother’s and father’s homes and arbitrarily- 
disregarded the mother’s willingness and ability 
to provide a home of suitable size if awarded 
custody .........    15

Sowders v. Sowders, 286 Ky. 269,150 S.W.2d
903 .............................................     16

KRS 403.070 ...................      16
Reitman v. Reitman, 168 Ky. 830, 183 S.W.

215 .................................................................  16
Grow v. Grow, 270 Ky. 571, 110 S.W.2d 275 .. 16
Buchanan v. Warley, 245 TT.S. 60 ........ .........  18
Shelley v. Kraemer, 334 U.S. 1 ............. ........  18
Barrows v. Jackson, 346 U.S. 249 ................  18

C. The Court below erred in basing the custody 
determination on racial considerations in viola­
tion of the due process and equal protection 
clauses of the Fourteenth Amendment to the 
Constitution of the United States ......................  18

KRS 403.070 ........      20
Vincent v. Vincent, Ky., 316 S.W.2d 853 ____  20
Heltsley v. Heltsley, Ky., 242 S.W.2d 973 .... 20 
Shepherd v. Shepherd, Ky., 295 S.W.2d 557 -  20 
Brown v. Board of Education, 347 U.S. 483

(1954) ....      20
Shelley v. Kraemer, 334 U.S. 1 (1948) .......20, 21
McLaughlin v. Florida, 379 U.S. 184 (1964)

20, 21
Cooper v. Aaron, 358 U.S. 1 (1958) ..............  20
Goss v. Board of Education, 373 U.S. 683

(1963) ............................................................ 20
"Watson v. City of Memphis, 373 U.S. 526 

(1963)

PAGE

20



Johnson v. Virginia, 373 U.S. 61 (1963) ....... 20
Burton v. Wilmington Parking Authority,

365 U.S. 715 (1961) .................................... 20
Peterson v. Greenville, 373 U.S. 244 (1963) .. 20 
Griswold v. Connecticut, 381 U.S. 479 (1965) 21
Meyer v. Nebraska, 262 U.S. 390 (1923) ..... 21
Skinner v. Oklahoma, 316 U.S. 535 (1942) .... 21 
In re Adoption of a Minor, 228 F.2d 446 (D.C.

Cir. 1955) .....................................................  22
People ex rel. Portnoy v. Strasser, 303 N.Y.

539, 104 N.E.2d 895 (1952) .........................  22
Fountaine v. Fountaine, 9 111. App.2d 482,

133 N.E.2d 532, 57 ALB 2d 675 (1956) ...... 22

D. Assuming arguendo that the Court below could 
properly consider appellant’s interracial mar­
riage, the Court erred in failing to grant her 
relief in view of her change of residence to a 
state permitting* interracial marriages ..........  22

KBS 402.020 ................... ................................. 22
McLaughlin v. Florida, 379 U.S. 184............  22
Griswold v. Connecticut, 381 U.S. 479 _____  22
Meyer v. Nebraska, 262 U.S. 390 ......    22
Workman v. Workman, 191 Ky. 124, 229 S.W.

379 .............. ......... ........................ ._____ ___ 23
Duncan v. Duncan, 293 Ky. 762, 270 S.W.2d

22 ............ .......................... ............................ 23
Beutel v. Beutel, 300 Ky. 756, 189 S.W.2d

933 ................................................    23
Lambeth v. Lambeth, 305 Ivy. 189, 202 S.W,2d 

436 ................    23

I ll

PAGE



PAGE

E. The expressed desire of some of the children 
to live with their father should not he con­
trolling in view of the circumstances of the 
case .......................................................................  24

Rallihan v. Motschmann, 179 Ky. 180, 200
S.W. 358 ...................................... .................  24

Combs v. Brewer, 310 Ky. 261, 220 S.W.2d
572 ...............   24

Stapleton v. Poynter, 111 Ky. 264, 62 S.W.
730 ........    24

Bunch v. Hulsey, 302 Ky. 763, 196 S.W.2d
373 .................................................................  24

Haymes v. Haymes, Ky., 269 S.W.2d 237 .... 24
Byers v. Byers, Ky., 370 S.W.2d 193 ...........  26

P. The proof showed that defendant George Eilers 
is unfit to be granted custody of the children .... 26

KRS 436.200 ................    28

G. The custody award in effect places the children 
in the care of defendant’s sister, a woman who 
is hostile to their mother and a relative stranger
to the children ....................................................  31

West v. West, 294 Ky. 301, 171 S.W.2d 453 .... 32 
Stapleton v. Poynter, 111 Ky. 264, 23 R. 76,

62 S.W. 730 ..........................................    31

H. The Court’s finding that two professional work­
ers supported the conclusion that it was in the 
best interests of the children to grant custody 
to the defendant is clearly erroneous and with­
out evidentiary support .....................................  32



V

II. The Court Below Violated Appellant’s Bights Un­
der CE 43.10 and the Due Process Clause of the 
Fourteenth Amendment to the Constitution of the 
United States by Refusing to Allow Her to Make 
a Record of Excluded Exhibits, Identify the Ex­
cluded Exhibits, or Make an Avowal With Re­
spect to the Exhibits, and in Directing the Court 
Reporter Not to Record Appellant’s Counsel’s 
Remarks About the Exhibits ......... ........................  35

CR 43.10 ................ ...........................................  38
Pennsylvania Lumbermen’s Mut. Fire Ins.

Co. v. Nicholas, 253 F.2d 504 (5th Cir.
1958) .......................... .................................. 39

East Ky. Rural Elec. Coop. v. Smith, Ky.,
310 S.W.2.1 535  .........................................  39

Brinkerhoff-Faris Trust & Savings Co. v.
Hall, 281 U.S. 673 (1930) ...........................  39

Hovey v. Illinois, 167 U.S. 409 (1897) ......... 39
Carter v. Texas, 177 U.S. 442 (1900) ........... 39
Ferguson v. Georgia, 365 U.S. 596 (1961) .... 39
In re Green, 369 U.S. 689 (1962) ................ 39
Coleman v. Alabama, 377 U.S. 129 (1964) .... 39 
Morgan v. United States, 304 U.S. 1 (1938) 39
Kent v. United States, 383 U.S. 541 (1966) .. 39 
Schwartz v. Schwartz, Ky., 382 S.W.2d 851 39

III. The Court Below Erred in Excluding Certain Evi­
dence and Exhibits Which Were Pertinent to the 
Defendant’s Fitness for Custody ...........................  40

A. The Court erred in excluding Mr. Eilers’ crim­
inal record prior to September 29, 1964, as 
contained in Anderson Avowal Exhibit No. 2 .. 40

PAGE



VI

KKS 403.070 ........     40
Vincent v. Vincent, Ky., 316 S.W.2d 853 ....... 40
Schwartz v. Schwartz, Ky., 382 S.W.2d 851 .. 41

B. The Court erred in excluding evidence of de­
fendant’s relationship with the children and 
with plaintiff during* the marriage.......... .........  42

Vincent v. Vincent, Ky., 316 S.W.2d 853 .... 42 
KRS 403.070 ...........................................   42

Conclusion ..........................................................................   43

PAGE



©mart of Kppmh of Eiutturkij
No. F-110-66

A nna F eances E ilees (now Anna Frances Anderson),
Appellant,

George F. E ilees,
Appellee.

APPEALED EEOM JEPPEESON CIRCUIT COUET, CHANCERY BRANCH

BRIEF FOR APPELLANT

Questions Presented

1. Whether the court below erred in granting custody 
of five young children to their father and denying custody 
to their mother in that:

a. The Court improperly disregarded the principle that 
the mother has a paramount right to custody, since there 
were no valid grounds for finding her unfit or incapable 
of properly caring for the children;

b. The Court applied erroneous and discriminatory 
standards for custody in comparing the mother’s home 
and neighborhood with the father’s home, and arbitrarily 
disregarded the mother’s willingness and ability to pro­
vide a home of suitable size if awarded custody;

c. The Court refused to set aside its determination that 
the mother was unfit because she contracted an interracial 
marriage and continues to premise its action on this hold­



2

ing in violation of the due process and equal protection 
clauses of the Fourteenth Amendment;

d. Assuming arguendo that the Court could constitu­
tionally consider the mother’s interracial marriage in de­
termining the children’s interests, the Court failed to grant 
appropriate relief upon the mother’s showing of changed 
conditions, including her having moved to a community 
with laws permitting interracial marriages, and other cir­
cumstances ;

e. The Court inappropriately gave weight to the desire 
of some of the children to live with their father in view of 
their youth, the nature of their expressed reasons, and the 
other circumstances of the case;

f. The proof showed that the father had not changed 
his habits and character and that he was not fit to have 
custody of the children, considering his admitted illegal 
employment as a poker dealer, and one who is in the 
business of accepting wagers, his irregular employment 
and refusal to disclose some places of employment on the 
ground of self-incrimination, and the lack of credible evi­
dence that there has been a reform of his character and 
habits;

g. The custody award to the father contemplates that 
principal responsibility for caring for the children will be 
in the hands of defendant’s sister who has had little prior 
contact with the children and who is so unfriendly to their 
mother that she refuses to speak to her, and is not fit by 
temperament to care for the children;

h. The Court’s finding that testimony by two social 
workers employed by the public agency having custody of 
the children supported the ruling that the children’s best 
interest were served by granting the father custody was



3

clearly erroneous, where the social workers expressly dis­
claimed having made any evaluation or recommendation, 
and the public agency’s usual placement investigation, 
evaluation and recommendation process was not under­
taken because of the Chancellor’s jurisdiction over the 
children.

2. Whether the Court below violated plaintiff’s rights 
under CR 43.10 and her rights to a fair hearing and to 
he represented by counsel under the due process clause of 
the Fourteenth Amendment to the Constitution of the 
United States by refusing to permit plaintiff to make a 
record of, or to identify, excluded exhibits, refusing to al­
low plaintiff to make an avowal, and directing the court 
reporter not to transcribe plaintiff’s counsel’s remarks iden­
tifying the exhibits.

3. Whether the Court below erred in excluding certain 
evidence and exhibits (a) concerning the defendant’s crim­
inal record and (b) concerning his relationship with plain­
tiff and the children prior to the parties’ divorce, where 
such evidence was pertinent to an informed judgment about 
the defendant’s present fitness for custody.

Statement of the Case

This is an appeal from a judgment entered July 13, 1966, 
by the Jefferson County Circuit Court, Chancery Branch, 
Third Division (Supplemental Record, pp. 29-30),1 in which 
the Hon. Lyndon Schmid, Chancellor, awarded custody of

1 The record of pleadings and orders subsequent to the former appeal 
in this case and marked “ Supplemental Transcript of Record”  is cited 
hereinafter as “ Supp. R.”  The 1966 testimony is in two volumes. The 
transcript of the hearing on April 13, 1966, is cited herein as “ Tr. A ” 
and the hearing on May 4, 1966, is cited as “ Tr. B.”  The record on the 
former appeal (this court’s file No. W-151-65) is cited as “R” .



4

five minor children (Michael, Charles Thomas, David, 
Georgeanne and Francine Eilers) to their father, George 
F. Eilers, defendant and appellee herein, and denied cus­
tody to their mother, Mrs. Anna F. Anderson (formerly 
Mrs. Anna Eilers), plaintiff' and appellant herein. Mrs. 
Anderson asserts that the custody award is improper be­
cause it violates the statutory command of KRS 403.070, 
and because it violates her rights under the due process 
and equal protection clauses of the Fourteenth Amendment 
to the Constitution of the United States.

The matter came before the court below on supplemental 
complaints filed by Mrs. Anderson and Mr. Eilers, both of 
whom sought custody of the five children.2 The court 
below heard evidence on April 13 and May 4, 1966, and 
rendered an opinion July 5, 1966 (Supp. R. 23-28). As 
stated in the opinion below, the court took judicial notice 
of prior proceedings in the case including “all the evidence 
in the case regarding the divorce and regarding the judg­
ment of September 29, 1964” (Supp. R. 24). The prior 
proceedings are contained in the record of a former ap­
peal in this court, Anna Frances Eilers (Anderson) v. 
George F. Eilers, File No. W-151-65, and appellant has 
requested that the Clerk of this Court place the record of 
the former appeal with this record pursuant to RCA 1.140. 
The prior proceedings are summarized briefly below and 
followed by a statement of the facts adduced at the most 
recent hearings.

2 Mrs. Anderson’s Supplemental Complaint filed March 11, 1965, re­
quested that she be granted custody of three o f the five children (Charles 
Thomas, David and Francine) (Supp. R. 4). Mr. Eilers’ Supplemental 
Complaint, filed February 17, 1966, sought custody of all of the children 
(Supp. R. 12). Mrs. Anderson’s Answer and Second Supplemental Com­
plaint filed April 13, 1966, prayed for an order denying Mr. Filers’ 
request for custody and asked for custody o f all o f her children (Supp. 
R. 16-18). In her testimony, Mrs. Anderson also stated that she desired 
custody of all five children (Tr. A. 35).



5

Plaintiff and defendant were married in 1950 and di­
vorced on June 14, 1963 (Supp. R. 23; Tr. 4/13/66 p. 7). 
Plaintiff was granted a divorce on the ground of cruel and 
inhuman treatment (KRS 403.020 3(b)). As stated in the 
opinion below, there was no adjudication of custody at 
the time of the divorce, but plaintiff had actual custody 
and “it is presumed that this arrangement was satisfac­
tory to the parties at the time” (Supp. R. 23). In January 
1964, plaintiff, who is white (as are defendant and the five 
children), was married to Marshall Anderson, a Negro, 
in Chicago, Illinois (Supp. R. 17-18). On February 13, 
1964, George Eilers filed a Supplemental Complaint to 
secure custody of the children. The Circuit Court heard 
evidence and rendered an opinion and judgment on Sep­
tember 29, 1964 (R. 13-17).3 The opinion found the father 
unfit to have custody and said that there was “uncontra­
dicted evidence” that the divorce was caused by George 
Eilers’ “ failure . . .  to properly care for his family,” and 
his “excessive drinking, cruelty, gambling and association 
with women other than his wife” (R. 14). It noted that 
Eilers “objects to his children being, reared in the home 
of a colored man” but said that the court declined to rule 
on the validity of Mrs. Anderson’s marriage to her present 
husband (R. 14). However, the court ruled that it would 
not be in the best interest of the children to remain with 
Mrs. Anderson, stating:

The Court is compelled to take notice of the racial 
unrest prevalent at this time, and of the struggle on 
the part of the colored race for equality with the white 
race. Of course, we realize that this “equality” is a 
relative word and we use the phrase merely to call 
attention to the fact that in rearing these children in 
a racially mixed atmosphere will per se indoctrinate

3 The citation “R.” refers to the record on the former appeal in this 
Court, File No. W-151-65.



6

them with a psychology of inferiority. We think that 
subjecting these children to such a hazard would be 
in negation of their “best interests” (R. 15-16).

The court held that Mrs. Anderson was not fit to have 
custody of the children because she contracted “a marriage 
which she knows, or should have known, would re-act to 
the detriment of these children” (R. 16). The court ordered 
the children placed in two Catholic orphans homes in 
Louisville (R. 16).

Subsequently, the two Catholic orphanages did not accept 
the children and the Chancellor ordered that custody be 
transferred to the Jefferson County Juvenile Court for 
placement (R. 22). But when the Juvenile Court, on Feb­
ruary 18, 1965, placed the two oldest children with their 
father and the three youngest children with their mother, 
the Chancellor entered an order on February 25, 1965, that 
they be removed from the custody of the parents (R. 25). 
Mrs. Anderson appealed to this Court. Mr. Eilers moved 
to dismiss the appeal on ,the grounds that the appeal was 
untimely. On January 14, 1966, this Court dismissed the 
appeal without opinion (Supp. R. 8-9).

During the pendency of the former appeal on March 18, 
1965, the five children were committed by the Juvenile 
Court to the Louisville and Jefferson County Children’s 
Home (Tr. A. 74-75). The Children’s Home placed them 
in a variety of foster homes in Kentucky and Indiana and 
in institutions operated by the home. The agency was 
unable to place the five children together and they were 
frequently moved from one foster home to another (Tr. A. 
74-75, 77-78). For example, Francine Eilers, the youngest 
child, was placed in one institution, three different foster 
homes, and with two relatives during a period of seven 
months (Tr. A. 74).



7

At the time of the hearing below, April 13, 1966, Fran- 
cine Filers was 6 years old, David was 10, Charles Thomas 
was 11, Michael was 12, and Georgeanne was 13 years of 
age (Tr. A. 18). Lonnie C. Carpenter, Executive Director 
of the Children’s Home testified that at that time Michael 
and Charles Thomas were placed in a long-term residential 
institution called Ridgewood, and Francine, Georgeanne 
and Michael were placed in three foster homes (Tr. A. 73- 
76). Mr. Carpenter testified that Michael and Charles 
Thomas were “quite normal boys,”  who had initially made 
a good adjustment to Ridgewood but had more recently 
had a “decline in their adjustment” (Tr. A. 76). He stated 
that they were not typical of the boys at Ridgewood, most 
of whom were in the institution because they had person­
ality, behavior, health or adjustment problems (Tr. A. 78). 
In June 1965, Ridgewood was racially integrated and 
Negro and white children and staff members were assigned 
to all cottages, including the one where Michael and Charles 
lived (Tr. A. 78). Indeed, the social worker assigned to 
them happened to be a Negro (Tr. A. 79).

Mr. Carpenter explained that normally his agency as­
sumes full control over children placed with it by the 
Juvenile Court and makes the decision whether to place 
the children with a parent or to make other placements 
(Tr. A. 86). However, he said that in this case, where 
the Circuit Court was involved, his agency was not able 
to make placements with the parents and had not arrived 
at any agency decision as to where it would be best for 
the children to be placed (Tr. A. 87). He stated that none 
of the agency’s usual studies and information gathering 
processes about the children and their parents necessary 
to a judgment about their placement had been undertaken 
(Tr. A. 86-89). His staff members were specifically in­
structed not to form opinions in this case and to be neutral 
between Mr. Eilers and Mrs. Anderson (Tr. A. 89-90).



8

Two social workers assigned to these children, Mrs. 
Millet and Mrs. Golden were called as witnesses by George 
Eilers. They both testified as to the favorable physical 
environment of George Eilers’ house, but both declined to 
express an opinion as to what placement would be best 
for the children, explaining that they had not performed 
the necessary studies and investigation to make such a 
judgment (Tr. A. 182-185; Tr. B. 12-13, 15-21, 22-28, 29). 
Indeed, Mrs. Golden had seen several of the children only 
once (Tr. B. 25-26), and Mrs. Millet said that she did not 
even know the appellant Mrs. Anderson and that she was 
not making a recommendation (Tr. A. 185). Mrs. Golden 
testified: “ . . .  if I would have to make judgment between 
the parents, I could not do it because I have not had enough 
contact with them and I do not know enough about them 
to make that decision” (Tr. B. 26).

In May 1965, Mrs. Anderson and her husband moved to 
Indianapolis, Indiana (Tr. A. 28), where they live in a 
two and one-half room efficiency apartment. Mrs. Ander­
son earns $80 per week as a waitress at the Mandarin Inn 
(Tr. A. 32). Mr. Anderson earns $85 a week working for 
the Radio Corporation of America in the manufacture of 
phonographs (Tr. A. 32-33, 57). Mr. Anderson works as 
a musician on weekends to supplement his income (Tr. A. 
33, 41-42, 46).

Before Mrs. Anderson lost custody of the children she 
lived in a three-bedroom house in Louisville (Tr. A. 38). 
She testified that if given custody of the children she would 
get a larger home to receive them, saying:

In fact, I have a gentleman that’s looking for a house 
for us right now. I looked at a big home last week 
and the only reason that we haven’t gotten a big place 
is because I saw no reason to rent a great big three



9

or four bedroom home until I got custody of these 
children, although it would only be a matter of picking 
up a telephone and calling a real estate man and even 
renting a home (Tr, A. 29).

Mrs. Anderson gave similar testimony on cross-examination 
expressing her willingness to get a larger home if she got 
custody (Tr. A. 59).

Mrs. Anderson said that her employer and her husband’s 
were aware of their interracial marriage, and that there 
would be no harassment concerning their present jobs (Tr. 
A. 59-60). Indiana’s prior laws prohibiting interracial mar­
riages were repealed in 1965 (Supp. R. 22; Burns Anno. 
Ind. Stats., §44-102 (1965 Supp.), §§10-4222, 10-4223 (1965 
Supp.)). Mrs. Millet, one of the social workers assigned 
to the case testified that the agency at one point wanted 
to evaluate Mrs. Anderson’s situation in Indianapolis be­
cause “the emotional climate for interracial marriages was 
supposed to be better up there” and possibly present a 
placement plan to the Court, but that she “never did get 
permission to go on” with this approach (Tr. A. 189-190; 
Anderson Exhibits 3 and 4).

Three of the children testified at the hearing. George- 
anne Eilers, who was 13 years old at the time (Tr. A. 144), 
stated that she had not visited her mother because she did 
not want to do so (Tr. A. 147); that she did not like Mr. 
Anderson (Tr. A. 148); and that “ there’s really not any 
particular reason (Tr. A. 148); that she would rather not 
see her mother because “I think if she cared about us she 
wouldn’t have ever done what she did, or she would have 
never left us” (Tr. A. 148-149); that she would prefer to 
live with her father (Tr. A. 152); and testified over objec­
tion that she did not want to live in a neighborhood where 
there are Negro children (Tr. A. 153-154).



10

Michael Eilers, age 12, was permitted to testify, over 
plaintiff’s objection, that he preferred to live with his 
father (Tr. A. 169). Charles Thomas Eilers, age 11, also 
testified that he wanted to live with his father (Tr. A. 
173).

Mrs. Anderson testified that her relationship and Mr. 
Anderson’s with the four younger children had been good 
and was pleasant on their weekend visits, and that the 
children cry when they have to leave, don’t want to leave, 
and ask when they can live with her and her husband 
(Tr. A. 28). Mrs. Anderson stated that Georgeanne did 
not want to visit her; that she thought it better not to 
force her if she doesn’t want to come; and that she loves 
and wants her regardless of the child’s attitude toward her 
(Tr. A. 34).

The court below found that defendant George Eilers 
“works as a bartender and as a professional gambler” 
(Supp. R. 26). Mr. Eilers was arrested January 21, 1965, 
and charged with bookmaking; he pleaded guilty to dis­
orderly conduct and paid a fine (Tr. A. 112; see also, Tr. 
A. 67, Anderson Exhibit No. 1). The court below excluded 
from evidence the record of Mr. Eilers’ other convictions 
on the ground that they related to incidents arising prior 
to the judgment of September 29,1964 (Tr. A. 67-70, Ander­
son Avowal Exhibit No. 2; Tr. A. 98-101). On April 6, 
1966, one week before the hearing below commenced, George 
Eilers bought a federal wagering tax stamp and registered 
under the applicable laws, as he had done in prior years 
(Tr. A. 110-111).4 He testified that he answered “yes” on 
the registration form to the question “Are you or will you

4 26 U.S.C.A. § 4401 imposes taxes on “ each person engaged in the busi­
ness of accepting wagers.”  Occupational tax and registration require­
ments are imposed by 26 U.S.C.A. §§ 4411, 4412.



11

be engaged in the business of accepting wagers on your 
own account?” (Tr. A. 122).

Mr. Eilers stated that he worked as a poker dealer (Tr.
A. 105-106; Tr. B. 49-50), but on two occasions refused to 
answer where he worked as a poker dealer and invoked 
his privilege against self-incrimination (Tr. A. 107; Tr.
B. 51). Mr. Eilers also denied that he took bets (Tr. A. 
110), and said that he was a race horse “tout,” that he 
spent a lot of money for books on race horses and: “I study 
them books sometimes 8, 10, 12 hours a night, and I’m a 
very good handicapper. I could probably right here this 
afternoon, if you let me look at a form, I could pick any 
one of you gentlemen a winner” (Tr. A. 114).

Mr. Eilers said that people pay him for picking race 
horses, and that he got the gambling stamp “in case I 
would ever take a bet” (Tr. B. 60-61). Mr. Eilers said 
that he did not “know for sure” whether his children 
knew about his betting on horses (Tr. B. 82).

Mr. Eilers’ record of other employment was irregular. 
He said that in 1965 he worked at bars from February 
until August, and that “After that I worked here and there, 
and no one place no leng*th of time” (Tr. A. 105). At the 
hearing on April 13, 1966, he stated that he had worked in 
a bar called the Decanter, the previous day, but that he 
just worked “that day” (Tr. A. 103-104). When the hear­
ing resumed on May 4, he stated that he had worked as a 
bartender for approximately a month (Tr. B. 30), or three 
weeks (Tr. B. 48) and earned $100 a week (Tr. B. 73). He 
said he was previously “self-employed” dealing cards and 
playing poker (Tr. B. 49).

In early 1966, Mr. Eilers rented a four bedroom house 
which was comfortably furnished (Tr. A. 180; Tr. B. 73), 
at a monthly rental of $120. His sister, Mrs. Olivia Mace, 
has lived in the house with him since February 1966 (Tr.



12

B. 85). Mrs. Mace is 52 years of age, is permanently sep­
arated from her husband and planning a divorce (Tr. B. 
90). She previously resided in Elmira, New York, and had 
little or no contact with the Eilers children, until she 
returned to Kentucky in 1965 (Tr. B. 94; Tr. B. 83). She 
expressed a willingness to keep house and care for the 
children (Tr. B. 88). During the Eilers’ marriage, Mrs. 
Mace had a phone conversation with the now Mrs. Ander­
son in which she (Mrs. Mace) “was very upset” and “it 
was an emotional outburst” (Tr. B. 93); that she had 
never talked with Mrs. Anderson “since the telephone 
conversation” (Tr. B. 102); and that she would not say 
they had a good relationship: “I don’t talk to her, I don’t 
visit her, I have nothing to do with her, so that isn’t good, 
is it?” (Tr. B. 102).

Mr. Eilers continues his association with Mrs. Patricia 
Strut (Tr. B. 65), which began during his marriage (Tr. 
A. 14, Anderson Avowal).6 He still sees her “quite fre­
quently” (Tr. B. 65). Mr. Eilers who had been found by 
the Circuit Court to be an “excessive” drinker testified 
that he has “an occasional drink” (Tr. A. 117).

The opinion of the court below discussed Mrs. Anderson’s 
small apartment, the fact that it is in a predominantly 
Negro neighborhood, that the occupants share a bathroom 
with other tenants, and that the boys share a bed when 
they visit Mrs. Anderson (Supp. R. 25-26). The court 
contrasted this with the larger home Mrs. Anderson had 
in Louisville and decided that “were custody given to Mrs. 
Anderson the circumstances and environment of these 
children would deteriorate rather than improve” (Supp. 
R. 26). The court described Mr. Eilers’ house; noted that 
he works as a bartender and professional gambler; ruled

6 The Circuit Court has acknowledged that Mr. Eilers’ divorce was 
caused in part because o f his “ association with women other than his wife” 
(E. 14).



13

that the fact that he is a professional gambler did not 
render him unfit to have custody; noted the desire of three 
of the children to live with Eilers; and noted the avail­
ability of Mrs. Mace to care for the children. The court 
concluded that “the best interests of these children lie 
with their father” and awarded defendant George Eilers 
custody of the five children (Supp. E. 26-28). The court 
stated that it took judicial notice of all prior evidence in 
the case, including that prior to the judgment of Septem­
ber 29, 1964, but it would not permit any evidence of 
events before the September 1964 judgment, and would 
consider only whether changed circumstances since that 
date would justify a change of custody (Supp. R. 24-25).

As noted above, Mr. Eilers was granted full custody. 
Mrs. Anderson was granted visitation privileges on al­
ternate weekends from 10:00 a.m. Saturday morning until 
7:00 p.m. Sunday (Supp. E. 29-30, 9-10). Mrs. Anderson 
on August 1, 1966, filed notice of appeal (Supp. E. 30) 
from the judgment entered on July 13, 1966 (Supp. E. 
29-30).

A collateral proceeding involving custody of these same 
children was recently before this Court sub nom. Michael 
Eilers, et al. v. Lonnie C. Carpenter, Executive Director, 
Louisville and Jefferson County Children’s Home, Case 
No. S-41-66. In that action Mrs. Anderson sought a writ 
of habeas corpus to obtain release of the children from 
the Juvenile Home, and appealed a denial of the writ to 
this Court. This Court dismissed the appeal in an opinion 
rendered October 7, 1966, stating that because during the 
pendency of that appeal the Circuit Court had removed 
the children from the custody of the Juvenile Home and 
awarded custody to George Eilers, the issues presented 
were “academic.”



14

ARGUMENT

L

The Court Below Erred in Granting Custody of Ap­
pellant’s Children to Their Father and in Denying 
Custody to Their Mother.

A. The Court below failed to properly apply the principle 
that the mother has the paramount right to custody of 
young children, where there were no valid grounds for 
finding her unfit or incapable of properly caring for the 
children.

It is settled law, and, we take it, the common ground 
upon which all arguments in this case rest, that the princi­
pal consideration to be applied in determining child custody 
disputes is “the interest and welfare of the children.” KBS 
403.070. But another principle of equally general appli­
cability has not been followed by the Court below. That 
is the rule that the mother is entitled to the care, custody 
and control of children of tender years, unless the evidence 
is to the effect that she is incapable or unfit. Clark v. Clark, 
298 Ky. 18, 181 S.W.2d 397; Hatfield v. Derossett, Ky., 339 
S.W.2d 631; Callahan v. Callahan, 296 Ky. 444, 177 S,W.2d 
565; Estes v. Estes, Ky., 299 S.W.2d 785; Byers v. Byers, 
Ky., 370 S.W.2d 193; Hinton v. Hinton, Ky., 377 S.W.2d 
888; Wilcox v. Wilcox, Ky., 287 S.W.2d 622; McElmore v. 
McElmore, Ky., 346 S.W.2d 722. The rule has been said 
to apply with special force to young children, Salyer v. 
Salyer, 303 Ky. 653, 198 S.W.2d 980, and to girls. Byers 
v. Byers, Ky., 370 S.W.2d 193; Wilcox v. Wilcox, Ky., 287 
S.W.2d 622. The rule rests on the unquestionable premise 
that maternal care is vitally important for children. Price 
v. Price, 214 Ky. 306, 206 S.W.2d 924. Indeed, the mother 
is prima facie entitled to custody.



15

We submit that there are no circumstances in this case 
which indicate that Mrs. Anderson is unfit or incapable 
of providing maternal care for the children. She cared 
for them all from birth until the time they were separated 
from her by court order, and is plainly still capable of 
giving them loving maternal care. There is nothing in 
the record reflecting against her unfavorably with respect 
to morals, competence, intelligence, or honesty. Indeed, the 
record reflects only a strong devotion to her children, as 
evidenced by her long trips from Indiana to Kentucky for 
regular visits with them, and a concern for their proper 
religious training (Tr. A. 26-31). As we contend in more 
detail in the arguments below, there is no lawful justifica­
tion for depriving her of custody because of the apartment 
she moved to after her children were taken from her, or 
the race of her second husband. These children are of 
the age where they need maternal care, and depriving them 
of maternal care is plainly not in their best interests, and, 
indeed, inflicts irremediable harm upon them in their forma­
tive years.

B. The Court below erred by applying improper and discrim­
inatory standards for determining custody by the manner 
in which it compared the mother’s and father’s homes 
and arbitrarily disregarded the mother’s willingness and 
ability to provide a home of suitable size if awarded 
custody.

The opinion below relies heavily upon the fact that Mrs. 
Anderson lives in a small efficiency apartment that is un­
suitable for a family with five children. The opinion com­
pares this apartment unfavorably with Mrs. Anderson’s 
previous home and with Mr. Eilers’ four bedroom house. 
But Mrs. Anderson never for a moment suggested that if 
she obtained custody of the children she proposed to con­
tinue to live in the small efficiency apartment. On the con­



16

trary, she made it plain that if granted custody she and 
her husband could and would obtain a home of suitable 
size and accommodations for the family (Tr. A. 29, 59).

Mr. and Mrs. Anderson maintained suitable quarters for 
the children when they did have custody. After they lost 
custody they moved to another city and obtained a small 
apartment. They stand ready to provide a home of ap­
propriate size if they regain custody. Nothing could be 
simpler. It is unconscionable to take custody from Mrs. 
Anderson on one ground and subsequently to attempt to 
justify the denial on the ground that she moved to smaller 
quarters in face of a prolonged change in the size of her 
family group which was occasioned by the Court itself. 
The ruling below on this ground was arbitrary and unfair.

Nor is there any justification for awarding custody to 
George Eilers merely because he rented a large house on 
a month-to-month basis immediately prior to his request 
that the court grant him custody.

This Court has frequently rejected economic tests for 
determining custody. In Sowders v. Sowders, 286 Ky. 269, 
150 S.W.2d 903, 926, the Court, commenting on the statu­
tory test of KRS 403.070, said “the poverty of the mother 
constitutes no legal reason for declaring not to give her 
custody and control of minor children.” Reitman v. Reit- 
man, 168 Ky 830, 183 S.W. 215; Grow v. Grow, 270 Ky. 571, 
110 S.W.2d 275. Plainly, in view of the father’s primary 
obligation to provide financially for his children, the rela­
tive economic positions of the father and mother should 
not determine which parent is given custody. We submit 
that for a court to sanction the denial of custody to a 
mother on the ground that she was poorer than the father, 
where the court controlled the father’s contribution to the 
child’s support, would constitute an impermissible economic



17

discrimination denying equal protection of the laws in 
violation of the Fourteenth Amendment. But that issue 
need not be decided here, for there is no showing that Mr. 
Filers is in a better economic position than Mr. and Mrs. 
Anderson to provide for the children,

Mr. Eilers had no steady job from August 1965 until 
the time of the first hearing on April 13, 1966. He relied 
upon his gambling earnings to support himself. As he 
stated it, he was a self-employed poker dealer and player 
and a race horse “tout.” His income plainly depends upon 
his vicissitudes of the cards and horses. He denied ac­
cepting wagers, although he admitted registering with the 
Federal Government as one in the business of accepting 
wagers. He had no property, stocks or securities, bank 
account, safety deposit box or large sums of cash (Tr. B. 
71). He later obtained a job earning $100 a week as a 
bartender, which he had maintained for at least three 
weeks when the trial ended. He had a record of staying- 
in similar jobs for only brief periods of time. His entire 
job history is placed in focus by the following questions 
and answers:

457 Then I’m asking you: where did you work be­
fore you worked yesterday?

A. Well, it might be that the people that I worked 
for, I mean, I worked for some private parties, I 
mean, I don’t know if they would like for me to say 
that I worked there, or—

The Court: Answer the question, Mr. Eilers.
Mr. Hubbs: Answer the question as best you can.

A. I don’t remember the last time I worked. (Tr. 
A. 104)

In contrast, Mrs. Anderson and her husband are reg­
ularly employed, Mrs. Anderson earning $80 per week,



18

and Mr. Anderson earning $85 per week and also sup­
plementing his income as a musician on weekends. Based 
on past performance, their prospects of steady employ­
ment and financial responsibility are better than Mr. Ellers’ 
prospects by any standard. This is true, even without 
considering the hazards inherent in Mr. Eilers’ illegal en­
terprises, including the possibility of fines or imprisonment. 
With respect to his record of prior convictions, see Argu­
ment II, infra.

The Court below also thought it relevant to note in its 
opinion that Mr. and Mrs. Anderson live in an interracial 
neighborhood and that three interracial couples live in their 
apartment building. The relevance of this is not apparent 
in the context of the obvious necessity and plan for the 
Andersons to move if they obtained custody. But plainly, 
the courts may not, consistent with the Fourteenth Amend­
ment, condition the enjoyment of legal rights on racial 
considerations. It is a patent denial of equal protection of 
the laws for a court to promote segregation by condi­
tioning a mother’s right to custody on her residing in a 
segregated neighborhood. The States may not require 
segregation by direct or indirect means. Buchanan v. 
War ley, 245 U.S. 60; Shelley v. Kraemer, 334 U.S. 1; 
Barrows v. Jackson, 346 U.S. 249. And, of course, there 
was no evidence to support a conclusion that Mrs. Ander­
son’s expressed desire to live in an integrated neighbor­
hood in Indianapolis (Tr. A. 66-67) would have any de­
leterious effect on the children.

C. The Court below erred in basing the custody determination 
on racial considerations in violation of the due process 
and equal protection clauses of the Fourteenth Amend­
ment to the Constitution of the United States.

The original decision denying Mrs. Anderson custody 
of her children was explicitly premised upon racial factors,



19

in particular her marriage to a Negro. The Opinion and 
Judgment of September 29, 1964, was frank and open in 
its reliance upon Mrs. Anderson’s interracial marriage as 
the sole ground for denying her custody. The Court stated, 
with respect to her marriage:

We wish to re-iterate at this time that while we 
are fully cognizant of the perplexities of the present 
situation we will consider these perplexities only as 
they relate to the well-being of these children and their 
status in the present social community without regard 
to any theoretical conceptions regarding the proper 
relationships between the races entertained by some 
folk (E. 14).

The Court concluded that “rearing these children in a 
racially mixed atmosphere will per se indoctrinate them 
with a psychology of inferiority. We think that subjecting 
these children to such a hazard would be in negation of 
their ‘best interest’ ” (E. 15-16).

The most recent opinion of the court below continues the 
explicit references to race only by mentioning that the 
Andersons live in “a predominantly Negro neighborhood” 
and that “there are three inter-racial couples living in the 
building” (Supp. E. 25). But, the opinion below contains 
no disclaimer of continued reliance upon the theory that 
plaintiff was unfit for the racial reasons stated in the 
September 29, 1964, opinion. Moreover, the Court neces­
sarily rejected plaintiff’s federal constitutional attack on 
the prior judgment and her request that the Court enter 
an order vacating and setting it aside (Supp. E. 17, 18), 
by denying the relief requested and by limiting the scope 
of inquiry to changes in the circumstances since that judg­
ment. The premise of the September 29, 1964, judgment, 
i.e., that Mrs. Anderson was unfit—a racial and unconsti­



20

tutional premise, we submit—was the starting point for 
the Chancellor’s consideration of the supplemental com­
plaint. The chancellor apparently took the view that since 
the only ground upon which Mrs. Anderson was deprived 
of custody of her children was her interracial marriage— 
only the dissolution of that marriage could be the change 
of circumstances which would warrant returning custody 
to Mrs. Anderson.

As this Court has held, KRS 403.070 permits the courts 
to revise their orders as to child custody at any time. The 
doctrine of res judicata is inapplicable. Vincent v. Vincent, 
Ky., 316 S.W.2d 853. Questions involving child custody are 
always open to modification where prior determinations 
are unjust and erroneous. Heltsley v. Heltsley, Ky., 242 
S.W.2d 973. See Shepherd v. Shepherd, Ky., 295 S.W.2d 
557. And plainly, an error of constitutional dimension 
must be still open to review, lest the procedure unjustly 
discriminate against the assertion of federal rights.

Plaintiff’s substantive claim that the racial ground for 
denying custody is unconstitutional is simple and well 
grounded in precedent. This ruling below is in the teeth 
of Brown v. Board of Education, 347 U.S. 483 (1954), and 
a multitude of rulings since Broivn which have emphasized 
over and over again in many contexts that agencies of the 
states violate the due process and equal protection clauses 
of the Fourteenth Amendment when they compel racial 
segregation and discrimination.6

Shelley v. Kraemer, 334 U.S. 1 (1948), and McLaughlin 
v. Florida, 379 U.S. 184 (1964), control this case. Shelley

6 See, for example, Cooper v. Aaron, 358 U.S. 1 (1958) (schools); 
Goss v. Board of Education, 373 U.S. 683 (1963) (pupil transfer plan) ; 
Watson v. City of Memphis, 373 U.S. 526 (1963) (public parks); John­
son v. Virginia, 373 U.S. 61 (1963) (courtrooms) ; Burton v. Wilmington 
Parking Authority, 365 U.S. 715 (1961) (restaurants in public build­
ings); Peterson v. Greenville, 373 U.S. 244 (1963) (restaurants).



21

makes it plain that state equity courts may not intervene 
and use their powers to require racial discrimination, and 
that the Fourteenth Amendment is as much a protection 
against discriminatory judicial action as it is against leg­
islative or executive action. “But for the active interven­
tion of the state courts, supported by the full panoply of 
state power,” (Shelley v. Kraemer, 334 U.S. at 19), these 
children would have been free to remain with Mr. and 
Mrs. Anderson. But here the state has “made available 
. . .  the full coercive power of government” in support 
of George Filers’ racial objection to his former wife’s 
marriage to a Negro (ibid.).

Mrs. Anderson was denied custody because she married 
a Negro and for that reason alone. If she had married a 
white person the rule would have been otherwise. Because 
this rule “applies only to a white person and a Negro who 
commit the specified acts and because no couple other than 
one made up of a white and a Negro is subject” to it, the 
rule is “a denial of the equal protection of the laws guaran­
teed by the Fourteenth Amendment.” McLaughlin v. Flor­
ida, 379 U.S. 184 (1964). This interference with the 
sanctity of the home and the marriage relationship (Gris- 
wold v. Connecticut, 381 U.S. 479 (1965)), penalizing a 
marriage by depriving a mother of her five children, is an 
even more serious punishment than the minor criminal 
penalties imposed in McLaughlin, supra. The right to 
marry, establish a home and bring up children is a pro­
tected liberty under the due process clause of the Four­
teenth Amendment. Meyer v. Nebraska, 262 U.S. 390, 399 
(1923); Skinner v. Oklahoma, 316 U.S. 535, 541 (1942).

In a case similar to this one in important respects, the 
District of Columbia Circuit reversed a trial judge’s de­
termination that a white child could not be adopted by 
its natural (white) mother and her Negro husband. In re



22

Adoption of a Minor, 228 F.2d 446 (D.C. Cir. 1955). See 
also, People ex rel. Portnoy v. Strasser, 303 N.Y. 539, 104 
N.E.2d 895 (1952), where New York’s highest court re­
versed a judgment denying custody of a white child to its 
mother whose second husband was a Negro.

Similarly, an Illinois court in Fountaine v. Fountaine, 
9 111. App.2d 482, 133 N.E.2d 532, 57 ALE 2d 675 (1956), 
held that the race of a mother’s second husband could not 
overweigh other questions and be decisive of custody.

D. Assuming arguendo that the Court below could properly 
consider appellant’s interracial marriage, the Court erred 
in failing to grant her relief in view of her change of 
residence to a state permitting interracial marriages.

Appellant has contended throughout this proceeding that 
her interracial marriage is not a constitutional ground for 
denying her custody, and that giving direct or indirect 
effect to Kentucky law and policy prohibiting such mar­
riages (KRS 402.020) violates the due process and equal 
protection clauses of the Fourteenth Amendment. Mc­
Laughlin v. Florida, 379 U.S. 184; Griswold v. Connecticut, 
381 U.S. 479; Meyer v. Nebraska, 262 U.S. 390. However, 
even assuming for the purposes of argument that this con­
tention is incorrect, the fact is that appellant’s marriage 
is plainly recognized by the laws of Indiana, the state 
where she is now living. There is no justification for ap­
plying Kentucky’s law on interracial marriages to resi­
dents of Indiana.

Indiana, in 1965, repealed its laws prohibiting marriages 
between whites and Negroes; this was brought to the at­
tention of the Chancellor (Supp. R. 22). There is no sound 
basis for an attempt to give extraterritorial application to 
Kentucky’s law or policy with respect to interracial mar­
riages. Furthermore, there is no ground for the Kentucky



23

courts to make any assumption that social conditions in 
Indiana would cause the interracial marriage to harm the 
children. The only evidence on the question—by Mrs. An­
derson (Tr. A. 59-60) and Mrs. Millett (Tr. A 189-190)— 
is to the contrary. The very fact that the Indiana legis­
lature in 1965 repealed its ancient laws prohibiting mar­
riages between white and Negroes reflects a political and 
social climate not incongenial to such unions.

If it is at all appropriate to consider the appellant’s inter­
racial marriage in the context of the social environment, it 
is necessary to consider that question in the context of this 
changed environment in Indianapolis. Of course, this rec­
ord reflects the changing environment in Kentucky as well. 
Although the Eilers’ children were removed from their 
mother’s home to avoid an interracial environment, two of 
the children were placed in a public agency which was 
racially desegregated—without any reported ill effects on 
these children—during the period they were in its cus­
tody (Tr. A. 78-79). We urge that changing conditions in 
the society make it inappropriate for courts to attempt to 
regulate custody determinations with reference to racial 
associations. But whether or not that is correct, it is surely 
inappropriate to attempt regulation of racial associations 
across state lines. And, of course, it has long been recog­
nized by this Court that it is proper to pei’mit parents to 
move children to other states in efforts to improve their 
family lives. Workman v. Workman, 191 Ky. 124, 229 S.W. 
379; Duncan v. Duncan, 293 Ky. 762, 270 S.W.2d 22; Beutel 
v. Beutel, 300 Ky. 756, 189 S.W.2d 933; Lambeth v. Lam­
beth, 305 Ky. 189, 202 S.W.2d 436. No other rule would be 
conceivable in view of the mobility of the American popu­
lation.



24

E. The expressed desire of some of the children to live with 
their father should not be controlling in view of the cir­
cumstances of the case.

Three of the children expressed a desire to live with the 
father George Eilers; they were Georgeanne, who was 13 
years old (almost 14), Michael, age 12, and Charles Thomas 
age 11. The other two children, David (age 10) and Fran- 
cine (age 6), did not testify.

Plainly, David and Francine were too immature for their 
desires to be credited or relied upon by the Court, and there 
was no attempt to elicit their feelings. We submit that it 
should be equally plain that they should not be bound by 
the desires of their older brothers and sister. As we shall 
argue below, the older children’s desires should be disre­
garded in this case. The reasons which will be given, apply 
with even greater force against the proposition that the 
older children should be allowed to determine the custody 
of David and Francine.

This Court has frequently disregarded the desires of 
children in deciding custody matters where objective 
factors such as the unfitness of a parent, or the preferred 
right of a mother to custody, make it plain that the rights 
of the parents are not in equipoise, or doubtful. Rallihan 
v. Motschmann, 179 Ky. 180, 200 S.W. 358; Combs v. 
Brewer, 310 Ky. 261, 220 S.W.2d 572; Stapleton v. Poynter, 
111 Ky. 264, 62 S.W. 730; Bunch v. Hulsey, 302 Ky. 763, 
196 S.W.2d 373; Haymes v. Haymes, Ky., 269 S.W.2d 237.

Eleven year old Charles Thomas Eilers expressed a 
preference for living with his father “Just because I think 
I would get a better education with him.” Obviously, the 
child had no sufficient basis to make an informed conclu­
sion. Nothing in George Eilers’ history of illegal enter­
prises, arrests, unstable employment, and financial irres­
ponsibility, justifies any conclusion that he will provide



25

liis children with a better education than their mother. 
(Note the excluded evidence about his lack of interest in 
their education during the Eilers’ marriage, which is dis­
cussed in Argument III, infra). It seems probable that 
Charles Thomas expressed his preference under the in­
fluence of his older brother—who wrote letters to the 
father’s lawyer and signed them for his younger brother 
(Tr. B. 122-123)—or of his father with whom he had more 
frequent contact during the period just before his testi­
mony. Nothing in the youth’s testimony, or elsewhere in 
the record, suggested he had any hostility to his mother; 
all the evidence is to the contrary.

Michael Eilers, age 12, said that he preferred to live 
with his father “because my Dad understands me most” 
(Tr. A. 169). Here again, the reason is insufficient to 
outweigh the objective factors pertaining to George Eilers’ 
unfitness, which are discussed in detail below. Again, the 
circumstances make the expression of preference inherently 
unreliable. The testimony of Mr. Lonnie Carpenter, head 
of the Children’s Home, demonstrated that Michael and 
Charles Thomas were unhappy in the Ridgewood institu­
tion and that their adjustment was declining. The trial 
judge had already made it clear in his September 1964 
ruling that he would not grant custody to Mrs. Anderson 
while she was married to a Negro. The boys clearly ex­
pressed their desire to be released from the Children’s 
Home (Tr. B. 122). It cannot have been lost on these 
young boys that their only realistic hope of release by the 
Circuit Court from the public institution was to profess a 
desire to live with their father. This is plainly not the 
kind of free and reasoned choice which this Court should 
regard as binding. The relative immaturity of the child 
and the strong possibility of undue influence require that 
the child’s desire be disregarded. Michael expressed no



26

hostility to his mother and the evidence was that he was 
affectionate towards her.

Georgeanne Eilers did express hostility to her mother 
and stepfather, and resentment about her mother’s remar­
riage (Tr. A. 147-149). But nothing about her testimony 
indicates that her preference was the result of a mature 
judgment. She blamed her mother for the fact that the 
children were separated from one another, notwithstanding 
the fact that her father instituted the legal proceedings 
which resulted in the children being separated (Tr. A. 
148-149). When asked why she disliked her stepfather 
she said, “ . . . there’s really not any particular reason. 
I just don’t like him” (Tr. A. 148). Notwithstanding these 
feelings, there is no sufficient basis for believing that 
Georgeanne and her mother cannot be reconciled if given 
an opportunity. We submit that Mr. Eilers’ unfitness (Ar­
gument I. F, infra) and the recognized need of an adoles­
cent girl for maternal supervision (Byers v. Byers, Ky., 
370 S.W.2d 193) justify the disregard of her expressed 
preference. There is every indication that Georgeanne’s 
alienation from her mother has been aggravated, if not 
caused, by the court-ordered separation from her mother.

F. The proof showed that defendant George Eilers is unfit 
to be granted custody of the children.

In the opinion and judgment entered in this case on 
September 29, 1964, the Chancellor found defendant George 
Eilers unfit to have custody of the children, stating:

The uncontradicted evidence in the case is to the 
effect that the original divorce was caused by failure 
of the Defendant to properly care for his family. This 
failure was occasioned by excessive drinking, cruelty, 
gambling, and association with women other than his 
wife (R. 14).



27

The opinion of July 5, 1966, said with respect to defen­
dant’s fitness:

According to Defendant’s testimony, he has now at­
tained a state of sobriety and he is regularly employed. 
He works as a bartender and as a professional gambler.

While the Courts in Kentucky frown upon gambling 
and the Statutes inveigh against it, we cannot in this 
day and age reach a conclusion that because a parent 
is a professional gambler or an amateur gambler that 
they are unfit to have the custody of their own children 
(Supp. R. 26).

It is submitted that the defendant entirely failed to show 
that he is a fit and proper person to be granted custody 
of young children. His own testimony, and other uncon­
tradicted evidence, which is detailed in the Statement of 
the Case, supra, pp. 10 to 11, shows that he has long 
supported himself by illegal gambling enterprises. He 
describes himself as a self-employed poker dealer and 
player (Tr. B. 49) and a race-horse “tout” , who studies 
racing forms “8, 10, 12 hours a night” and boasted from 
the witness stand that he could pick a winner for anyone 
in the courtroom (Tr. A. 114). He invoked the privilege 
against self-incrimination to conceal the location of the 
private poker club he operated (Tr. A. 106-107). He had 
no regular employment aside from gambling from August 
1965 to April 1966 (Tr. A. 105, Tr. B. 72). A  week before 
coming to court to seek custody of the five children, he 
again registered as a gambler and purchased a federal 
gambling tax stamp, as he had done in previous years 
(Tr. A. 110, 111). He admitted giving a false address for 
his gambling activities in his federal registration (Tr. B. 
54-57). He refused to name his gambling associates (Tr. 
B. 50-51). His testimony was evasive and equivocal to the



28

point that notwithstanding his admission that he registered 
with the government as one in the business of accepting 
bets, he denied doing so. Indeed, he claimed at a prior 
hearing in 1964 that he had stopped being a bookmaker 
(Transcript of Hearing, June 8, 1964, pp. 8, 29-30) ;7 but 
registered as a gambler in 1965 and 1966 and pleaded 
guilty to a gambling charge in 1965 (Tr. A. 111-112).

There was no clear evidence of reform with respect to 
his drinking habits; only his assertion that he now drinks 
“occasionally” (Tr. A. 117). He still keeps liquor in his 
home and works occasionally in bars (Tr. A. 117, Tr. B. 
77-78).

Gambling offenses of various kinds are proscribed by 
Kentucky law, and are classified in the Revised Statutes 
as “ Offenses Against Morality” (KRS 436.200 et seq.). 
The potential deleterious effects of defendant’s unlawful

7 Transcript of June 8, 1964; George Eilers, direct examination:
40 And you have a reputation of being a booky?
A. Previous, till the time I  got sick in 1961.
41 You haven’t been since then?
A. No, sir. (Transcript p. 8.)

At the same hearing on cross examination (Tr. pp. 29-30):
161 What do you do for a living sir?
A. Well I  have been a bartender, I have been, back in the old days, 

I  had a gambling stamp, I  was a gambler, and I have been a rail­
roader, and I have been a whiskey salesman, I have been in a lot of 
different occupations. Eight now I can’t say that I am doing anything 
for a living because I am not working.

162 You say you were a booky?
A. I said I had a gambling stamp. Do you call that a booky?
163 I understood your lawyer to ask you if you were not a booky? 

I f  you had a reputation for being a booky ?
A. I had a gambling stamp, and I took bets on race horses.
164 You don’t call that a booky?
A. That’s what I have heard it called.
165 You don’t do that now, is that what you are telling this Court.
A. That’s right.



29

activities on the children are readily evident. One who 
makes his living unlawfully is not likely to inculcate the 
children with a respect for the laws of society. Nor is he, 
nor are his children, likely to receive the respect of their 
neighbors so essential to the children’s self-esteem and 
healthy growth. I f it be so, as the Court below wrote in 
its first opinion, that “It is a known fact that children 
can be most brutal in their frankness” (R. 15), it is easy 
to imagine the humiliations to which these young persons 
will be exposed as dependents of a “tout” and common 
gambler.

Equally important, the financial position of an inveterate 
gambler is inherently unstable. Even while he remains at 
large, his capacity to provide for his dependents rides 
with the horses and the cards. He is always subject to 
be arrested and confined for federal or state offenses. In 
the event of his incarceration, neither parental care nor 
income will be available to these children.

Moreover, the potentially dangerous character of de­
fendant’s undisclosed criminal associates cannot be ig­
nored. Defendant’s claim of the privilege entirely pre­
cluded inquiry by the Court below into this vital question. 
Doubtless, the claim of privilege was defendant’s right, 
and rightly honored by the Court.8 But its effect was to 
leave the Court uninformed concerning the character of 
the adults with whom these children may come into con­
tact in defendant’s home. Surely, common knowledge of 
the ordinary close relations between gambling and a gamut 
of other criminal activities, from blackmail and corrupt 
pay-offs to strong-arm violence, suggests the risks to which

8 Tr. B. 50-51. However, the Court’s later ruling that the names o£ 
defendant’s gambling associates was not material (Tr. B. 60) was plainly 
erroneous.



30

the Court’s ignorance in this aspect leaves the children 
prey.

One need not, therefore, be overly pious about gambling 
to perceive the disastrous effects Mr. Eilers’ occupation 
may have on the children; nor to perceive that Eilers will 
not only be compelled to rely on the fruits of his illegal 
occupation, but to expand his gambling business to care for 
the children; nor to perceive that one who boasts of spend­
ing eight to twelve hours a night poring over racing forms 
and books is unlikely to provide a wholesome example for 
young children.

Eilers also continues his association with Mrs. Patricia 
Strut, with whom he associated during his marriage. In 
short, there is no evidence to establish that Eilers has 
changed and suddenly become a fit person to rear five 
young boys and girls. All this is in contrast to the plain­
tiff, Mrs. Anderson, an affectionate and devoted mother 
with habits and character traits plainly fitting her to care 
for her children.

Diligent research by counsel has located no case in which 
a professional gambler or other criminal has been awarded 
custody of children merely because his illegal profits enable 
him to provide them with a physically desirable home. We 
urge that such a theory violates the express public policy 
of the Commonwealth against gambling, and is no proper 
ground for determining the best interests of young children. 
Especially must this be so where there is an alternative 
parent, the mother, who is normally preferred and against 
whom no charges have been made that she has been ar­
rested or convicted for any crime and who has demon­
strated her fitness over many years.



31

G. The custody award in effect places the children in the 
care of defendant’s sister, a woman who is hostile to their 
mother and a relative stranger to the children.

In view of Mr. Eilers’ occupation and habits, it is ap­
parent that the principal burden of caring for the children 
will fall to his sister, Mrs. Mace. She is a comparative 
stranger to the children having associated with them only 
slightly since 1965 on occasional visits. In prior years she 
had absolutely no contact with them (Tr. B. 91). She has 
her own domestic relations problem, being separated from 
her husband and planning a divorce (Tr. B. 90). She ad­
mits her hostility to the children’s mother stemming from 
an “emotional outburst” (Tr. B. 93), and states that as the 
result of an argument with Mrs. Anderson years ago she 
has not spoken with her again (Tr. B. 102).

By her own account, Mrs. Mace came to live with her 
brother and maintain his household for her own financial 
benefit, because she was separated from her husband and 
could not find work (Tr. B. 89-91). Prior to this time she 
had no contact with the children. Indeed, she had indicated 
a marked disinterest in them, according to Mrs. Anderson 
who testified that on one occasion during her marriage to 
Eilers Mrs. Mace “called me from Elmira, New York, and 
told me to take me and my family and get the hell out of 
there and leave him alone” (Tr. B. 110).

Where a person having custody has such a marked 
animosity toward the child’s mother, there is a likelihood 
that she may poison the children’s minds against, and 
alienate their affections from, their mother. This is a suffi­
cient enough reason to deny placing the children in her 
care. The courts have long recognized that parents have 
a preferred right to their children in a contest with 
strangers. Stapleton v. Poynter, 111 Ky. 264, 23 R. 76;



32

West v. West, 294 Ky. 301, 171 S.W.2d 453. It is patently 
inimical to the welfare of children to remit them to the 
care of a woman who is strongly hostile to their mother.

H. The Court’ s finding that two professional social workers 
supported the conclusion that it was in the best inter­
ests of the children to grant custody to the defendant is 
clearly erroneous and without evidentiary support.

Two social workers, Mrs. Edna Millet and Mrs. Mary 
Golden, were called as witnesses by the defendant George 
Eilers. Both were employees of the Louisville and Jeffer­
son County Children’s Home. Mrs. Millet worked with 
the children in foster homes and Mrs. Golden with those 
placed in institutions. Both of them testified about the 
physical environment of Eilers’ home. Both of them de­
clined to make a recommendation about which parent 
should be given custody. Both of them gave the same rea­
son, namely, that they had not performed the necessary 
investigation and not had enough contact with the parents 
to make a judgment. This was entirely consistent with 
the testimony of their superior, Mr. Carpenter, who made 
it plain, as the social workers did also, that the usual in­
vestigation was not conducted and the normal processes 
were not followed because of the Circuit Judge’s juris­
diction over the case. All of them indicated their willing­
ness to conduct an impartial investigation and make recom­
mendations if requested to do so by the Court. We believe 
that the criticism in the opinion below that the social 
workers’ testimony “left much to be desired in the realm 
of frankness and candor” (Supp. R. 27), was totally un­
justified criticism, implying dishonesty where there was 
none. But that is not essential to our point which is simply 
that the social workers expressly disclaimed making a 
judgment about, or knowledge of the facts relevant to a 
decision about, the best placement for the children.



33

The testimony was cleai’ and unequivocal. Mrs. Millet 
said:

I can’t make a recommendation, other than I defi­
nitely approve of the physical aspects of Mr. Eilers’ 
home. That is the only aspect I took into considera­
tion. We do not have jurisdiction to make a placement 
in the father’s home, therefore, we went no further 
than that (Tr. A. 182).

Mrs. Millet also said:

I ’m not making any recommendation. I don’t even 
know Mrs. Anderson—we haven’t visited at all. As I 
told you we requested the Indianapolis State Welfare 
Department to give us an evaluation of her home. We 
made that— (Tr. A. 185).

# #  *  *  *

1023 I understand that. And I ’m trying to develop 
the fact, I think is accurate, that because you’re not at 
liberty to place them you have not done the things you 
would do, to find out where they should be placed. 
Is that right1?
A. That’s right. We haven’t gone any further than 
superficially visiting them.

Her only investigation of Eilers’ home was conducted 
to see if it would be a suitable place for the children to 
visit on weekends (Tr. A. 184-185). She made no investiga­
tion of the habits, background, occupations or other factors 
with respect to Mr. Eilers or his sister, Mrs. Mace (Tr. 
A. 187).

Mrs. Golden said that her one visit to the Eilers’ home 
was to view the premises and that her contact with Mrs. 
Mace was only casual (Tr. B. 9, 12-13); that her superiors



34

instructed her to be neutral in the case and not to reach 
a conclusion on what placement would be best for the 
children (Tr. B. 15-16); that she had not done some of the 
things that would ordinarily have been done if she were 
going to make a recommendation (Tr. B. 18); that she 
had not had many interviews with the parents (Tr. B. 19); 
that she had not made any investigation of Mr. Eilers’ 
or Mrs. Mace’s habits or temperament (Tr. B. 20-21); that 
she knew nothing of Mrs. Mace’s background (Tr. B. 23); 
that normally the agency would conduct a background in­
vestigation of a relative before placing a child with her 
(Tr. B. 23-24); and that she knew nothing about Mr. Eilers’ 
finances, associates, the people who came into his home, 
and similar matters (Tr. B. 27).

We submit that the Chancellor’s reliance upon the social 
workers’ testimony to support the finding that placement 
with the father was in the children’s best interest was im­
proper where the social workers had not made their usual 
investigation, and where the Court had the power to obtain 
the benefit of their expertise and judgment and to direct 
a complete investigation but chose not to do so.

The reluctance of the social workers and their superiors 
to make recommedations in this case in the absence of an 
express request from the Court is readily understandable 
in view of background events such as the Chancellor’s 
summary overruling of a Juvenile Court order dividing- 
custody between the parents (R. 25), and an unfortunate 
episode in which the parents were not permitted visitation 
rights during the 1965 Christmas period (Tr. A. 23-26, 
50-54, 80-81, 97-98, 191-192; Tr. B. 28-29, 36-38).



35

II.

The Court Below Violated Appellant’s Rights Under 
CR 43 .10  and the Due Process Clause of the Four­
teenth Amendment to the Constitution of the United 
States by Refusing to Allow Her to Make a Record 
of Excluded Exhibits, Identify the Excluded Exhibits, 
or Make an Avowal With Respect to the Exhibits, and 
in Directing the Court Reporter Not to Record Appel­
lant’s Counsel’s Remarks About the Exhibits.

During the presentation of appellant’s case at trial, 
Lonnie C. Carpenter, Executive Director of the Louisville 
and Jefferson County Children’s Home, was called as a 
witness. He was the chief administrator of the tax-sup- 
ported public child welfare agency (Tr. A. 71-72) to which 
the children had been committed. On direct examination 
the colloquy, which is set forth in full below, occurred 
(Tr. A. 81-85):

373 Did there come a time, Mr. Carpenter, when 
you—approximately March 14, 1966 when you under­
took to write a letter to Judge Schmid and Judge 
Schmid answered you—if I may, Your Honor, 1 would 
like to have the witness identify the correspondence 
with the Court.

The Court: The correspondence will not go in, 
it was personal correspondence and it has no rela­
tion to this case.

Mr. Nabrit: If it please the Court, the correspon­
dence is already in the file jacket.

The Court: That’s all right, it’s in the file jacket, 
hut it’s not part of the record.

Mr. Nabrit: I’m asking the witness to identify an 
exhibit, a letter he wrote to the Court—



36

The Court: It was merely put in the file jacket 
for my own personal convenience. It’s personal cor­
respondence and it is not part of the record.

Mr. Nabrit: May it please the Court, may I be 
heard in argument on this?

The Court: Yes sir.
Mr. Nabrit: Your Honor, it would seem to me 

that correspondence between two public officials, a 
member of the executive branch and a member of 
the judicial branch, which relates to the status of 
our client’s children and where they should be placed 
and recommendations, is not only has relevance to 
the proceeding before us, but as official correspon­
dence could not in any way be privileged. And we 
would urge, on the basis of the State and Federal 
Constitutions, including the due process and equal 
protection clauses of the 14th Amendment that we 
are entitled to offer any such correspondence about 
our client’s rights and status in the evidence in the 
case where her rights are to be determined. We 
have copies of the letter and we have read them—

Th Court: That’s perfectly all right if you have 
copies of them. I have no objection to that whatso­
ever, but that correspondence was undertaken with­
out notice to either party to this action. It was 
correspondence between Mr. Carpenter and this 
Court. It was unsolicited by this Court and it was 
merely answered by this Court as a matter of 
courtesy. It has no place in this record and it will 
not go in.

Mr. Nabrit: Your Honor, would the same ruling 
apply to both the letter to the Court and the letter 
from the Court?

The Court: Both the Tetter to the Court and the 
letter from the Court.



37

Mr. Nabrit: And does Your Honor’s ruling—
The Court: In other words, if Mr. Carpenter had 

something to say to this Court officially, it should 
have come through the Juvenile Court who sent 
these children to him and under whom he is sup­
posed to work directly, and not through this Court. 
Either that, or he should have come through the 
two parties, one or the other.

Mr. Nabrit: I suppose we—may I inquire, Your 
Honor, whether Your Honor’s ruling was intended 
to preclude offering the letters as an avowal?

The Court: Yes sir.
Mr. Nabrit: Your Honor, may I inquire whether 

or not I would be permitted to have the letter marked 
for identification?

The Court: They will not go in the record at all.
Mr. Nabrit: Your Honor, counsel suggests that 

perhaps I have not sufficiently described the letters 
I was referring to.

The Court: I am well acquainted with them. I 
wrote one of them.

Mr. Nabrit: I would just like to state that the 
letters I have been talking about, a letter dated 
March—

The Court (To the reporter) : Mrs. Koenig, don’t 
put anything in this record regarding any letters.

Mr. Nabrit: Your Honor, may I have an excep­
tion to the Court’s ruling, forbidding the Court re­
porter from taking down the remarks I have made 
in Court.

The Court: Yes, you may have an exception.
Mr. Nabrit: I also want to make that objection 

on the due process law—
The Court: All right, sir.



38

Mr. Nabrit: Of the denial to my client of the 
right to be represented by counsel under the 14th 
Amendment.

Mr. Crumlin: May the record also show, Judge, 
that you instructed her not to put this inf Not to 
put this down?

The Court: That should be in there.
Mr. Nabrit: The difference, Your Honor, it’s not 

clear what parts of the testimony the court reporter 
has been instructed to leave out.

The Court: The court reporter has been instructed 
to leave out only those parts which I directed her to 
leave out, and that is any letters that may be put in 
either by conversation or by reading them. Now, 
as far as the reference to the letters are concerned, 
that’s already in the record.

The Court thus refused to permit examination of the 
witness about the letter he wrote to, and the letter he 
received from, the Chancellor, refused to permit the let­
ters to be marked for identification as excluded exhibits, 
refused to permit an avowal, and refused to permit coun­
sel to describe the letters by date or in any manner so 
that the record might reflect precisely which letters were 
being discussed.

The issue here, then, is not whether the letters were 
admissible, but whether the Chancellor should have per­
mitted an avowal and the preservation of the excluded 
evidence so that this Court might view the exhibits and 
decide their admissibility on appeal.

The provisions of CR 43.10, which were substantially 
similar to Federal Rules of Civil Procedure, Rule 43(c), 
direct that the court “upon request shall take and report 
the evidence in full, unless it clearly appears that the evi­



39

dence is not admissible on any ground or that the wit­
ness is privileged.” The purpose of the rule, of course, is 
to allow a reviewing court to appraise excluded evidence 
in deciding its admissibility. Interpreting the federal rule, 
the United States Court of Appeals for the Fifth Circuit 
reversed where a trial court refused to allow a proffer of 
proof saying that “ the parties must be given ample oppor­
tunity to put in the record a fair statement of what they 
intend to prove in order that the appellate courts can 
intelligently pass upon the challenged ruling of the trial 
court.” Pennsylvania Lumbermen’s Mut. Fire Ins. Co. v. 
Nicholas, 253 F.2d 504, 506 (5th Cir. 1958). The refusal 
to permit an avowal is all the more serious, and the injury 
irremediable, in the context of the Kentucky appellate 
principle of refusing to review an error in excluding evi­
dence where the party has failed to request an avowal. 
East Ky. Rural Elec. Coop. v. Smith, Ky., 310 S.W.2d 535.

In that context, the ruling refusing an avowal cannot 
stand “because it has denied to the plaintiff due process 
of law—using that term in its primary sense of an oppor­
tunity to be heard and to defend its substantive right.” 
Brinkerkoff-Faris Trust & Savings Co. v. Hall, 281 U.S. 
673, 678 (1930). Indeed, in a variety of contexts the Su­
preme Court has found a denial of elemental fairness of 
constitutional dimension in refusals to permit a party to 
present evidence. Hovey v. Elliott, 167 U.S. 409, 413-414 
(1897); Carter v. Texas, 177 U.S. 442, 448-449 (1900); 
Ferguson v. Georgia, 365 U.S. 570, 596 (1961); In re Green, 
369 U.S. 689, 691-692 (1962); Coleman v. Alabama, 377 
U.S. 129, 133 (1964); cf. Morgan v. United States, 304 U.S. 
1, 15, 18-19 (1938), and authorities cited; Kent v. United 
States, 383 U.S. 541, 561-562 (1966). The ruling had the 
effect of denying Mrs. Anderson the right to have the 
testimony reported and preserved for appellate review, a 
procedure which this Court has condemned where evidence 
was taken in chambers but the trial judge would not allow 
it to be reported. Schwarts v. Schwarts, Ky., 382 S.W.2d 
851.



40

III.

The Court Below Erred in Excluding Certain Evi­
dence and Exhibits Which Were Pertinent to the De­
fendant’ s Fitness for Custody.

A. The Court erred in excluding Mr. Filers’ criminal record 
prior to September 29, 1964, as contained in Anderson 
Avowal Exhibit No. 2.

The Court below refused to admit in evidence or to con­
sider an exhibit containing a list of criminal charges and 
the disposition of criminal charges (including convictions) 
against George Eilers (Tr. A. 67-70). The authenticity of 
the document was established by testimony and conceded 
by defendant’s counsel (Tr. A. 98-101).

The theory of exclusion was that all the convictions con­
tained in the exhibit (except one which was proved sepa­
rately—Anderson Exhibit No. 1; Tr. A. 67) occurred prior 
to the judgment of the Court on September 29, 1964.

We submit that the Court was in error, first, because 
the evidence was not inconsistent with the prior judgment 
which had found that Eilers was unfit and that he gambled. 
(Even if the evidence has contradicted a prior finding, it 
probably would have been admissible because the principle 
of res judicata does not apply in custody proceedings.) 
Second, the Court erred because the evidence plainly was 
relevant to a determination of the defendant’s present 
fitness.

KRS 403.070 provides that the court may revise any of 
its orders as to child custody “at any time.” Vincent v. 
Vincent, Ky., 316 S.W.2d 853. It is arbitrary to penalize 
plaintiff for not offering such evidence at the divorce 
hearing or the 1964 custody hearing. It was not needed



41

then. The need for plaintiff to present such evidence was 
not apparent at the 1964 hearing because in 1964 Eilers 
did not seek physical custody; he sought merely to deprive 
his wife of custody and to place the children in an orphan­
age (Transcript of Hearing, June 8, 1964, pp. 9, 29).

In appraising the defendant’s present fitness, and his 
protestations of a reformed character, it is obviously rele­
vant to know that the defendant is and for a long time 
has been an habitual gambler with a lengthy record of 
convictions. There is no surer method of establishing 
habitual criminality than by proof of a criminal record. 
It obviously ought to make a difference in appraising a 
man’s character that he is not the mere victim of an isolated 
lapse into illegal gambling, or an amateur gambler, but, 
rather, is a man who has long made his living in illegal 
enterprises.

We submit that this Court’s decision in Schwartz v. 
Schwarts, Ky., 382 S.W.2d 851, is not authority to the 
contrary, and that properly read it supports admissibility 
of the evidence in this case. In Schwartz, supra, the Court 
upheld the exclusion of proof of a criminal record long 
predating the divorce, but did so not on the ground that 
it pre-dated the divorce and several modifications of the 
custody order, but on the ground that the convictions were 
not relevant to the single issue in the case, which was the 
necessity for supervision of the father during visitation 
periods. Thus, Schwarts, supra, shows that relevancy is 
indeed the test for the admissibility of criminal records 
in, considering custody modifications. We submit that the 
defendant’s criminal record should be considered in judg­
ing his present habits and character.



42

B. The Court erred in excluding evidence of defendant’s rela­
tionship with the children and with plaintiff during the 
marriage.

On the same theory discussed in the preceding argument, 
the Court excluded other material evidence predating the 
September 29, 1964, judgment. As we have argued above, 
if the exclusion was on res judicata grounds it was in 
error. Vincent v. Vincent, Ky., 316 S.W.2d 853; KBS 
403.070. The welfare of a child should be appraised on the 
basis of all available evidence as to a potential custodian’s 
fitness. Where the custodian claims—as George Eilers 
claimed—that his character has reformed, his character 
and habits should be appraised in the light of all available 
evidence that sheds light on his protestations of reform, 
his habits and his disposition, without any arbitrary cut­
off date. This is particularly true, where there has been 
no necessity for such evidence in prior litigation.

We submit that the evidence contained in Mrs. Anderson’s 
Avowal (Tr. A. 9-17) is plainly relevant. The evidence 
offered included testimony about Eilers’ arrest and con­
finement for gambling disorderly conduct (Tr. A. 10), his 
physical attacks on plaintiff (Tr. A. 12), his admitting a 
secret drinking habit of a pint of whiskey a day when 
committed to a V. A. hospital (Tr. A. 12), the fact that he 
stayed away from home and did not spend much time with 
the children (Tr. A. 12), his lack of interest in PTA and 
school activities (Tr. A. 12-13), his relationship with 
another woman (Tr. A. 14-15), his operation of a restaurant 
to conceal a bookmaking enterprise (Tr. A. 16), and his 
operation of bookmaking activities in his home in the 
presence of the children (Tr. A. 17).

All these facts plainly have a bearing on defendant’s 
present fitness. A divorced wife plainly will have informa­
tion bearing on a husband’s fitness after living with him



43

for 13 years. She hardly can be expected to be in posses­
sion of comparable evidence during the years after the 
divorce. The rulings excluding all evidence of Eilers’ char­
acter during the largest part of his adult life, prevent the 
presentation of evidence fully illuminating his character.

CONCLUSION

It is respectfully prayed that the Judgment below be 
reversed with directions to grant custody of her children 
to Mrs. Anna Anderson, or that the Court grant such 
other and further relief as may seem just and proper.

Respectfully submitted,

J ames A. Crumlin
608 West Walnut Street 
Suite 503
Louisville, Kentucky 40202

J ack Greenberg
J ames M. Nabbit, III
L eroy D. Clark

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellant

A nthony G. A msterdam 
3400 Chestnut Street 
Philadelphia, Pennsylvania 

Of Counsel



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