Aguirre v. Mumma

• Decision Date: 23 May 1962
• Docket Number: No. 13919,13919
• Citation: 358 S.W.2d 249
• Court: Texas Court of Appeals
• Parties: Pedro N. AGUIRRE et ux., Appellants, v. William MUMMA et ux., Appellees.

Page 249

358 S.W.2d 249

Pedro N. AGUIRRE et ux., Appellants, v. William MUMMA et ux., Appellees.

No. 13919.

Court of Civil Appeals of Texas, San Antonio.

May 23, 1962.

Rehearing Denied June 13, 1962.

Schweppe, Schweppe & Allison, Tafolla & Tafolla, Charles A. Ramirez, San Antonio, for appellants.

M. M. Pena, Jr., San Antonio, for appellees.

POPE, Justice.

This is a suit for change of custody between parents and non-relatives, and both homes are fit and proper. Pedro Aguirre and Cecilia Aguirre are the natural parents of Estella Aguirre, a five-year-old child. At the time of the hearing, Mr. and Mrs. William Mumma had the custody and the court continued that custody. The judgment stated that the mother had surrendered custody, that Mrs. Mumma had exercised custody since birth, that the child had been well cared for, that the Mummas are fit persons, and that the best interests of the child would be served by leaving her with the Mummas. The parents have had visitation rights and those rights were continued. In our opinion, the child should be restored to her mother and father.

Estella was born August 23, 1955. Five days after her birth, of necessity and upon advice of a priest, the mother gave the child to Pedro, the father. He took her home, and his wife, now Mrs. Mumma, accepted the child. She has been good to Estella and has reared her along with three children born of her marriage with Pedro. Estella remained in the home with Pedro, her natural father, and her foster mother until November 21, 1958, when Pedro's wife divorced him. She asked for custody of Estella and the other three children. Pedro did not contest the divorce and the decree awarded all the children to the present Mrs. Mumma.

Pedro married Cecilia, the natural mother of Estella, on November 22, 1958. They then took the necessary steps to correct the birth certificate to show the child's name as Estella Aguirre. She has always gone by that name. After her marriage to Pedro, Cecilia visited the foster mother and asked that she surrender the custody of Estella to her and Pedro, but she refused. On August 14, 1959, the foster mother married William Mumma. No steps have ever been taken by Mrs. Mumma to adopt Estella, and she is not and has never been a dependent or neglected child.

The contest is between two homes, both of which are presently fit and proper. One is that of the child's parents; the other is a foster home with non-relatives. Unlike Solomon's case, the foster mother has not consented to the slaughter of the child, but is motivated by the noblest of motives, and is a good woman. The decision is therefore more difficult. Moreover, Mr. Mumma has accepted the child and he too is good to Estella. To make it even more difficult, there is a divorce decree between Pedro and the present Mrs. Mumma which gave her the custody. There is also the trial court's judgment in this case, reached after the judge saw and heard all persons involved, including Estella, the child.

There is a rebuttable presumption which favors the parents. That presumption was overcome in the divorce decree, so far as Pedro is concerned, but Cecilia was not a party to that action. We are now concerned, in any event, with changed conditions. Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787; De Gaish v. Marriott, Tex.Civ.App., 345 S.W.2d 585; Leonard v. Leonard, Tex.Civ.App., 218 S.W.2d 296, 301. Pedro and Cecilia are now married. Pedro has always recognized Estella and her brother, also born of Cecilia. They are his children. Art. 2581, Vernon's Tex.Civ.Stats....