Opinion
No. 4045.
June 27, 1931. Rehearing Denied July 2, 1931.
Appeal from District Court, Bowie County; R. J. Williams, Judge.
Habeas corpus proceedings by Dee Williams against Mrs. A. A. Perry. Judgment for defendant, and plaintiff appeals.
Affirmed.
This was a habeas corpus proceeding by appellant to obtain from appellee the custody of his two children, Marjorie, a girl about 9 years of age, and Bobby, a boy about 7 years of age. Appellee was the mother of said children's mother, who, having been adjudged to be insane, was confined in an asylum in Austin. In her answer appellee alleged that during much of the time they were married appellant and her daughter lived with her in her home; that both of their children were born in her home; that about March, 1930, appellant abandoned his wife and their children, as she believed "for the society of another woman"; that about August, 1930, appellant sued his said wife for a divorce; that a divorce was granted, not on his petition, but on a cross-petition by his said wife; that when the divorce was granted appellant's said wife and said children were living with appellee and thereafter continued to live with her; that after said divorce appellant "married a woman of bad reputation for honesty and decency, and ever afterward neglected the care and support of said children"; that appellant was "wholly unfit to have the care and custody of said children"; that appellant's said wife, the mother of said children, was still living, but, on account of appellant's "cruel treatment, neglect and abuse" during the time she and appellant lived together and his neglect of said children after said divorce was granted, had become insane and was confined in an asylum; that appellee believed her daughter would regain her sanity and return to her (appellee's) home where she could have the care and custody of said children; that said children were attending the public schools in Texarkana; that appellee resided in a respectable neighborhood in said city; that said children attended church, Sunday school, and other religious services each Sunday and were surrounded by wholesome influences, much better than appellant would or could afford them; that appellant associated with "dissolute and disreputable characters," was "addicted to the constant use of intoxicating liquor," and was "a wholly unfit person to have the care and custody and the rearing of children of any age, especially children of the age of himself and the respondent's (appellee's) daughter"; and that appellee was able "to give said children the proper care and attention and proper surroundings." The appeal is from a judgment denying appellant the relief he sought and awarding the custody of the children to appellee. The trial was before the court without a jury, and he found the facts of the case to be as follows, quoting: "1. That Marjorie Williams, nine years of age and Bobby Williams, seven years of age, are the children of D. Williams and his former wife, Lucille Williams, who is a daughter of the defendant, Mrs. A. A. Perry. 2. That more than a year before this suit was instituted, the plaintiff abandoned his said wife, and that she with said children went to live with, and lived continuously from that time until sometime in the month of February, 1931, with the defendant, and that since that time, said children have been living as before with defendant. 3. That during the married lifetime of the plaintiff and his wife, Lucille, said children spent a great deal of their time with their grandmother, the defendant in this suit, and that at all times a great love and affection has existed on the part of the children for their grandmother, Mrs. A. A. Perry, and that a great love and affection has existed and still exists on her part for them. 4. That after the separation of the plaintiff and his wife, Lucille, that he neglected said children and their support a great deal of the time; that a short time after said separation he filed a petition for a divorce from his wife, and afterwards in the month of March, 1930, a divorce was granted on a cross bill filed by his wife in said divorce proceedings on the accusation of statutory grounds of adultery between the plaintiff and some other woman. 5. That the plaintiff agreed with his said wife that she might have the care and custody of said children but that no disposition of them was made in the divorce decree. 6. That after a divorce was granted to the plaintiff's wife that within a few months he married again and married a woman with an unsavory reputation, but that they are not living together at this time. 7. That the plaintiff has no home but lives with his father at Eldorado, Arkansas, and that if the custody of the children was awarded to him he would be compelled to confide their care to his sister who lives at Smackover, Arkansas, and who has a boy of her own who is now seven years of age, and though the plaintiff's sister would be able to furnish them with a reasonable comfortable place to live that the surroundings would not be a good as at their present location. I further find that the plaintiff's sister and her family have been associated but casually with these two minor children and are almost strangers to them as far as association is concerned, and that no particular ties of affection exist between said children and the plaintiff's sister and her family, and that there is no way of knowing whether the relation between these two families of children would be pleasant. 8. That in the month of February, 1931, the mother of said minors, Lucille Williams, was adjudged insane and is now in the insane asylum at Austin, Texas. 9. That Mrs. A. A. Perry, the grandmother, owns her home in the City of Texarkana, Texas, and that while she is in poor financial circumstances she is willing to give said children a home with her, and give them the proper care and training and that she is altogether a proper and suitable person to have their custody, and that her home is altogether a suitable place for said children to live; that it is situated in a good neighborhood, convenient to Church and School, and that there are no other small children in the home and that they would be surrounded there with proper and wholesome influence. That while said children have lived with their grandmother which has been for considerably more than a year, that they have been regularly sent to school and are well advanced, and have been regularly carried to Sunday School and Church by their grandmother, and that this situation will be continued if said children are left in her care and custody. 10. That said children have reached the age of sufficient discretion to, in a large measure, appreciate their situation and that they very much desire to remain in the home of their grandmother, and will be much happier if they are left in her custody than if they should be placed in the family of the plaintiff's sister. 11. That the plaintiff's conduct in abandoning his wife and his lack of care and concern for the welfare of his children, his association with another man's wife and his hasty action for divorce and his subsequent marriage to a woman of low character and unsavory reputation, render him subject to severe criticism and call for much reformation on his part, but situated as he is, I feel constrained to find as a fact that he is unable to furnish to his children surroundings as good for their benefit as their present surroundings, and that it is decidedly to the best interest of said children that they be continued in the custody of their grandmother, at least until the plaintiff has shown some evidence of reformation and has surrounded himself with a situation that will afford said children as good opportunities as they will enjoy in the custody of their grandmother."
Crumpton Crumpton, of Texarkana, for appellant.
L. C. Boswell and N. L. Dalby, both of Texarkana, for appellee.
Appellant insists, in effect, that his right to the custody of the children was absolute, and that it was error to deny him such custody in the absence of pleading and proof showing that he had voluntarily parted with such right. The contention is on the theory advanced by the petitioner in Ex parte Sams (Tex.Civ.App.) 161 S.W. 388, 389, that "the district court [quoting] in a habeas corpus proceeding has no right to inquire into the matter of the fitness of a parent to care for his minor child, unless it is first shown that said parent has voluntarily surrendered his custody of the child to some other person." It seems the appellant here, as did the appellant in Long v. Smith, 162 S.W. 25, 27, decided by the same court that decided Ex parte Sams, misconstrued the effect of the holding in the latter case, for the court in the former case, referring to the Sams Case, said: "We did not concede the legal proposition announced by appellant in that cause. * * * Our courts have held the proposition that presumptively the best interests of the child is with the parent; but where conditions overcome this presumption, the infant's interest being the real issue, blended with the interests of society, this presumptive right of the parent is negatived and destroyed, and society and the government, as well as that of the child's interests, arise requiring a different custody."
That the interests of the child, and not the right of its parents, is of controlling importance in determining a question as to the child's custody arising in this kind of a proceeding, we think is well settled by decisions of the courts of this state. In Tunnell v. Reeves, 35 S.W.2d 707, 709, the Commission of Appeals said: "The writ of habeas corpus is used in this state as a form of procedure for the purpose of litigating questions as to the proper custody of children and ascertaining what would be to the best interest of the child, to society and to the state and is addressed to the equity powers of the court, and the power is given to the courts to make the change as a remedial right. The trial judge sits as a court of chancery, exercising broad equitable power, and the rules regulating the exercise of that power are and should be liberally construed." And in Davis v. Sears, 35 S.W.2d 99, 102, where a contention similar to the one urged here was made, the Commission of Appeals said: "The parents' right to the custody of their child, however, is not absolute, but is subject to judicial control, when the interest of the child demands it, and must yield, where the real and permanent interest of the child demands a different disposition." And the Commission of Appeals said, further: "What is the best interest of the infant? is the question upon which all cases turn at last. * * * As to what was the child's best interest, notwithstanding the qualification of the natural parents, was the vital ultimate issue before the court for determination. It was the controlling issue of fact. * * * The authorities of this state * * * are almost uniform in holding that, in a contest for the custody of a minor, that person is entitled to such custody in whose custody the interest and welfare of the child will be best promoted." As we construe the rulings in the opinions from which we have quoted, supported as they are by the holdings in many other cases which could be cited, there is no merit in appellant's contention in the respect specified, and it is overruled.
The facts of the case, as found by the trial court, are set out in the statement above. Except on the theory hereinabove referred to as advanced in the Sams Case, we do not understand appellant to be in the attitude of questioning the sufficiency of the findings made by the trial court, set out above to support the judgment. His contention with reference to that phase of the case seems to be that the finding numbered 4, so far as it was that he neglected his children and failed to support them, the finding numbered 7, so far as it was that the "surroundings" of the children would not be as good with him as they would be with appellee, the finding numbered 10, so far as it was that the children wished to remain with appellee and would be happiest with her, and the finding numbered 11, were without evidence to support them. We have read and considered the testimony in the statement of facts, and do not agree with appellant that it did not warrant the finding and parts of findings specified. And if we did agree with appellant as to those matters, we probably would not reverse the judgment, for we are inclined to think it would have sufficient support in the findings of the court not attacked as lacking in evidence to support them. In passing upon the case, the trial court exercised an "equitable discretion" (Davis v. Sears, supra) in determining what was best for the children, and in determining the question "had the opportunity [this court is without] to observe the parties and weigh their respective qualifications." "The right of custody," said the court in Stout v. Myers (Tex.Civ.App.) 242 S.W. 1109, 1111, "is largely a question to be decided by the trial court in the exercise of his judicial discretion." And see Duckworth v. Thompson (Tex.Civ.App.) 22 S.W.2d 528, where it was said that even the verdict of a jury on an issue as to the proper custody of a minor child, was "merely advisory," which the trial court might adopt or not, as it saw proper in awarding custody of the child; and Cecacci v. Martelli (Tex.Civ.App.) 235 S.W. 951, 953, where the court said a question as to the custody of a child is one of fact "which must be determined by the trial court, and unless the finding of that court is so against the preponderance of the evidence as to be clearly wrong it will not be disturbed by an appellate court."
The judgment is affirmed.