B--- S--- L---, In re, 16055

• Decision Date: 14 March 1979
• Docket Number: No. 16055,16055
• Citation: 579 S.W.2d 527
• Parties: In re B______ S______ L__ and R______ A______ L__, Minor Children, Appellants.
• Court: Texas Court of Appeals

Page 527

579 S.W.2d 527

In re B______ S______ L__ and R______ A______ L__, Minor

Children, Appellants.

No. 16055.

Court of Civil Appeals of Texas, San Antonio.

March 14, 1979.

Rehearing Denied April 18, 1979.

John A. Mead, San Antonio, for appellants.

Benjamin F. Walker, San Antonio, for appellee.

OPINION

CADENA, Chief Justice.

Respondent, mother of the two minor children involved in this case, seeks reversal of an order removing her as managing conservator of the children and appointing appellee, respondent's former husband and father of the minors, managing conservator.

Petitioner and respondent were divorced on July 30, 1976. The divorce decree named respondent managing conservator of the children, and petitioner thereafter filed this proceeding seeking modification of the custodial portions of the prior decree.

Respondent first complains of the exclusion of testimony which related to a "suicide attempt" by petitioner and an incident which involved the damaging of a china cabinet by petitioner. Both events occurred prior to the divorce.

In Wilson v. Elliott, 96 Tex. 472, 73 S.W. 946 (1903), the Supreme Court of Texas said that a prior decree awarding custody of children to the father established that the father was a proper person to have custody of the children on the date of such decree and that such judgment was "res adjudicata." The Court added:

The question upon the first trial in a case of a character of this is, which is the more suitable party to be intrusted with the care of the child at that time? The question in the subsequent proceeding is, which is the more suitable at the time of that trial? Since, in determining the second question, the first can not be agitated, it follows that evidence of prior conduct of either party cannot be introduced except to corroborate some evidence of similar conduct . . . since the original decree.

96 Tex. at 477, 73 S.W. at 947. A similar statement is found in Otto v. Otto, 438 S.W.2d 587, 589 (Tex.Civ.App. San Antonio 1969, no writ).

We accept respondent's statement that, with the exception of Green v. White, 203 S.W.2d 960 (Tex.Civ.App. El Paso 1947, no writ), all the cases which applied the exclusionary rule announced in Wilson concerned evidence of prior misconduct of the person to whom custody was awarded by the prior decree. Respondent points out that in Green the court said that it had found no case "authoritatively holding that the status or character of the parent to whom custody was not awarded in a suit for divorce is res adjudicata, and that proof of his or her misconduct prior to the original judgment is inadmissible in a subsequent proceeding for custody." 203 S.W.2d at 962. This inability to find an authoritative holding resulted from the fact that the Green opinion characterized as "dicta" the statement in Wilson that prior conduct of either party is inadmissible. Id. This denunciation of the Wilson language as dicta was based on the theory that in Wilson testimony of the prior conduct of both parties was admitted and the only question was whether the trial court erred in disregarding such testimony. This observation led to the conclusion that the question of the admissibility of such testimony was not considered in Wilson. ¹ However, the Green opinion concludes that the Wilson "dicta" was unequivocal, persuasive, and binding on intermediate appellate courts "until the Supreme Court holds otherwise." Id. at 962. The evidence of misconduct by petitioner antedating the original custody decree was properly excluded.

The next complaint concerns the exclusion of certain testimony of the witness, Sandra Martin. According to the bill of exceptions, this witness would have testified that she recommended that the prior decree appointing respondent managing conservator not be disturbed. Petitioner objected to such testimony on the grounds that the witness was not qualified to express an opinion on that subject and that the proffered testimony "goes to the ultimate issue of the facts which the jury is called upon to decide." The court excluded the testimony, explaining that the evidence was inadmissible for the reasons stated in petitioner's objection and for the additional reason that the recommendation was based on hearsay.

The witness was permitted to testify that the court had directed that a social study be made by the Children's Service Bureau, by whom the witness was employed, and that the witness had made such a study. She was also allowed to state that she had visited the homes of both parties and had talked with the children, respondent's parents, persons acquainted with petitioner, the fire marshal and health authorities. She testified that she found no conditions in either home which could be considered injurious to the well-being of the children.

The testimony of the witness concerning her qualifications may be summarized as follows: (1) At the time of trial she was employed by the Children's Service Bureau in San Antonio as an adoption case worker. The record does not indicate how long she had been so employed. (2) She graduated from Northwestern State College in Louisiana with a bachelor's degree in elementary education in 1966. (3) She was a first grade teacher in Louisiana and subsequently was a teacher in a program for the education of deprived children in Alabama and special education programs in Alabama and New Hampshire. (4) In 1975 she returned to school and earned a master's degree in "Family Relations and Early Childhood Development." The record reveals neither the name of the institution nor the content of the program leading to the master's degree. (5) Her employment with the Children's Service Bureau requires that she "study families, investigate their homes and possibly recruit families for the adoptive placement of children."

No hard and fast rules have been developed to help in determining whether a person who is tendered as an expert witness has...