Anderson v. Martin

• Decision Date: 16 March 1953
• Docket Number: No. 6284,6284
• Citation: 257 S.W.2d 347
• Parties: ANDERSON et al. v. MARTIN et ux.
• Court: Texas Court of Appeals

Page 347

257 S.W.2d 347

ANDERSON et al. v. MARTIN et ux.

No. 6284.

Court of Civil Appeals of Texas, Amarillo.

March 16, 1953.

Rehearing Denied April 13, 1953.

Aldridge & Aldridge, Farwell, for appellants.

E. T. Miller and Simpson, Clayton & Fullingim, Amarillo, for appellees.

PITTS, Chief Justice.

This appeals is from a child custody hearing in which the controlling issue to be determined is the question of whether or not divided custody between the parents of a child of tender years will be for its best interest, both parents having married against after being divorced from each other. The present spouses, respectively, of the parents of the child were made parties to this action and both of them testified but the contest is between the parents principally and they will be referred to as appellant and appellee. The case was tried to a jury. As a result of its findings, together with additional findings made by the trial court, judgment was rendered awarding custody of the child to its mother and her present husband, who reside in Farwell, Texas, for ten months each year and to its father, who resides in Kansas City, Kansas, for two summer months of each year, from which judgment the mother, appellant herein, perfected an appeal and presents several assignments of error.

The child's father, Earl Martin, joined by his present wife, Vesta Martin, filed this action on June 7, 1951, against his former wife, the child's mother, Caroline Anderson and her present husband, R. W. Anderson, alleging changed conditions since the custody of the child in question, a boy-Robert Scott Martin, was awarded to its mother by order of a court of competent jurisdiction in a proper decree of date June 11, 1947, divorcing its parents, for which reason Earl Martin sought full and exclusive sustody of the child, and in the altermative, its custody for at least ten months out of each year. Appellant, Caroline Anderson, joined by her present husband, answered by joining issues with appellee and sought continued full custody of the child.

A lengthy record has been presented here, the statement of facts containing 317 pages giving the testimony of 36 witnesses and numerous exhibits. The father of this child precipitated considerable feeling that resulted in the filing of a Federal charge of kidnapping against him, when he abducted the child here in controversy while it was in its mother's legal custody and playing in the street near the home of its maternal grandparents. The merits of this case can be best understood after giving a full account of the background out of which this controversial action arose.

Earl Martin testified in part that he was born in 1914 and was reared at Shamrock, Wheeler County, Texas; that he was first married to Mary Elizabeth Triplett in 1936, to which marriage one son, Dale E. Martin, was born; that he was divorced from his first wife when the said child was six years of age and the custody of the child was awarded to its mother, since which time he had paid $75 per month for its support until the sum was later reduced to $40 per month, which sum he has since paid for its support; that his first wife has since married again and the child was twelve years of age at the time he gave his testimony. The record further reveals that Earl Martin later served in the Army and was a commissioned officer when he was married on December 5, 1945, at Camp Edwards, Massachusetts, to appellant, Caroline Levins, who was then serving in the Womens Army Corps as a First Lieutenant. When they were both separated from the Service, they moved to Shamrock, Wheeler County, Texas, where they established their home. In the meantime their son, Robert Scott Martin, was born on November 15, 1946, while its mother was staying in the home of her parents. Appellant and appellee later separated and appellant was granted a divorce from appellee in the District Court of Wheeler County, Texas, and she also was given the custody of their seven month old son, Robert Scott Martin, with reasonable visitation privileges allowed appellee, its father. The court there further stated in its judgment that the visitation privileges of the father should not be construed as allowing the father to take the child into his own home or the home of near relatives prior to its becoming four years of age and even then only when such would not interfere with the education and general welfare of the child. The court's judgment further directed the child's father, Earl Martin, to pay to its mother, Caroline Martin, for support of the child, a reasonable monthly sum until the child became sixteen years of age. The record reveals that Earl Martin has consistently paid $25 per month for the child's support. The record also reveals that both parents had gone to school and each had a college education and each bore a good reputation.

After the separaton and divorce the child's mother, appellant herein, had no place to live but with her parents, Ira S. Levins and wife, who also had a younger daughter, Susan Palmer Levins, living with them. The mother took the child and moved in the home with her parents who lived in Texico, New Mexico, just one block west of the Texas-New Mexico state line. The city limits of Texico, New Mexico, and Farwell, Texas, join each other and the two towns are separated only by the Texas-New Mexico State line. Ira S. Levins lived with his family just across the state line of New Mexico but operated his business, a picture show, in Farwell, Texas. By necessity, the child's mother got a good position and went to work to support herself and help support the child, who, from its infancy, was partially cared for by its maternal grandmother while its mother was working. The child became an attractive member of the family. Its maternal grandparents naturally manifested must interest in and became attached to it. They assisted its mother in seeing that it had every advantage for growth and development. Although its mother worked and earned a livelihood, she devoted much of her time to church work. She was organist for the church and saw that the child had such advantages as the church could give a child of its age. She also kept in touch with appellee, the child's father, and invited him to visit the child. Mrs. Levins, the child's maternal grandmother, invited the child's father by letter to come visit the child and bring his parents, who lived at Shamrock, Texas. For a period of about four years, Earl Martin seldom visited his said child. According to the record, he actually saw the child during that time only two or three times and then for only a short period, but he remembered the child with appropriate gifts at various times.

Appellee, Earl Martin, married his present wife of February 19, 1949. She had been married before but had no children. Because of the nature of his business, appellee with his present wife, soon moved to Kansas City, Kansas, where they have since resided. He and his brother were engaged in the trucking business, owned 32 or 33 trucks and 18 trailers, which they used in hauling new automobiles from Detroit, Michigan, to Shamrock and Amarillo, Texas. Their joint gross income for the year 1950 was over $100,000.

Appellant and her child continued to live in the home with her parents until she married her present husband, R. W. Anderson October 9, 1949. Anderson was reared in Farwell, Texas, near the Lavins' home in Texico, New Mexico. He is vice president of a Farwell bank of which his father is president. After his marriage, he and his wife established a home in Farwell only a short distance from the Levins' home. His wife continued to work. While both he and his wife worked, the child here in controversy continued to spend most of his time with his maternal grandparents but his mother was with him much of the time during evenings and weekends.

On May 10, 1949, prior to her last marriage and again on July 27, 1950, after such marriage, appellant wrote appellee, the child's father, suggesting that her parents, the child's maternal grandparents, adopt Robert Scott, and asked his opinion about the matter. In her said letters appellant related the existence of a happy relationship between the child and other members of the Levins family and said such would give the child 'one home, not living between two homes', but she was interested in having his reaction to her suggestiong and said she had given the matter much thought and had decided she would sign such adoption papers if he would sign them. He at no time replied to or commented about her suggestion of such a proposed adoption. These letters, together with a later letter written by the child's mother to its father, were introduced in evidence by the father, appellee herein. The last letter mentioned is here copied as follows:

'2 February 1951

'Dear Earl:

'Intended to answer your letter much sooner, but Dad, Susan Palmer and Bob Scott have all three had colds this week and have been in bed. This, of course, has kept us jumping around pretty much trying to take care of them and the theater.

'I certainly hope you don't have to go back into the Army. Matter of fact, I thought you had resigned your commission, but then I guess they can always get you if they make up their minds to get you.

'You know, Earl, you are always welcome here, and anytime you want to see Bob Scott all you have to do is come down. I have a new camera, and as soon as I can understand the gadget, I hope to get some good pictures of the kids. If I do, I shall send you some.

'Hope this finds you and Vestal well and happy.

'Very truly yours,

(Signed) Caroline'

Appellee, Earl Martin, further testified on cross-examination that when he received the last letter which is copied hereinabove, saying, 'You know, Earl, you are always welcome here, and anytime you want to see Bob Scott all you have to do is come down', he then made up his mind 'to snatch the child', and he actually got the child a month...