Barron v. Bastow, 13153

• Decision Date: 18 June 1980
• Docket Number: No. 13153,13153
• Citation: 601 S.W.2d 213
• Parties: Elaine Bastow BARRON, Appellant, v. Jack Irving BASTOW, Appellee.
• Court: Texas Court of Appeals

Page 213

601 S.W.2d 213

Elaine Bastow BARRON, Appellant, v. Jack Irving BASTOW, Appellee.

No. 13153.

Court of Civil Appeals of Texas, Austin.

June 18, 1980.

Rehearing Denied July 9, 1980.

Jane R. Matyastik, Cameron, for appellant.

Robert E. Jack, Henderson & Jack, Cameron, for appellee.

SHANNON, Justice.

This is an appeal from judgment of the district court of Milam County, modifying a previous divorce decree pursuant to Texas Family Code Ann. § 14.08 (Supp.1980).

Appellee Jack Irving Bastow filed a motion in September, 1978, in the district court of Milam County to modify a divorce decree entered by that court in July, 1974. The 1974 divorce decree, in effect, had appointed appellee's former wife, appellant Elaine Bastow Barron, managing conservator of the couple's two children. By his motion, appellee sought appointment as managing conservator of the children, Keith Allen Bastow, age eight, and Kelli Renee Bastow, age five.

The trial was to a jury. The jury answered that the circumstances of the Bastow children and appellant had so materially and substantially changed since entry of the 1974 divorce decree that retention of appellant as managing conservator would be injurious to the welfare of the children. The jury responded further that the appointment of appellee as managing conservator of the children would constitute a positive improvement.

The district court entered judgment upon the jury's verdict. The judgment removed appellant as managing conservator of the children and appointed appellee managing conservator. The judgment further named appellant possessory conservator.

Texas Family Code Ann. § 14.08 (Supp.1980) authorizes the court having jurisdiction of a suit affecting the parent-child relationship to modify, after hearing, an order appointing a managing conservator if:

"(c) . . .

(1) . . . if the circumstances of the child or parent have so materially and substantially changed since the entry of the order or decree to be modified that the retention of the present managing conservator would be injurious to the welfare of the child and that the appointment of the new managing conservator would be a positive improvement for the child . . ."

Appellant assails the judgment by many points of error. By her first three points, appellant urges that there is no evidence or, alternatively, insufficient evidence to support the jury's answers. The rules for consideration of "no evidence" and "insufficient evidence" points of error have been stated many times. In considering a "no evidence" point, the reviewing court must reject all evidence contrary to the jury's verdict and consider only the facts and circumstances that tend to support the verdict. In reviewing factual sufficiency points of error, the court considers all of the evidence. Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 Texas L.Rev. 361 (1960).

A few weeks after entry of the judgment of divorce, appellant gave birth to her son, Mark. Mark was fathered not by appellee, but instead by Edward Barron. At that time, appellant and the Bastow children were living in Cameron with Barron. Keith Bastow was enrolled in kindergarten in Cameron. Appellant was not working. Appellant was the only person caring for the children and she claimed that she never left them unattended.

In 1975, appellant, the children, and Barron moved from Cameron to Calvert where they set up housekeeping in a trailer house. After the move to Calvert, appellant and Barron agreed between themselves to be married. According to Barron, he and appellant, themselves, performed the marriage ceremony. The couple did not bother with a formal marriage because they held the view that a "piece of paper" (a marriage license) does not make, necessarily, a good relationship.

Appellant enrolled the Bastow children in the public schools in Calvert. Appellant then sought and obtained employment. At the time of hearing appellant was working in Hearne. There was some evidence that, on occasion, appellant left the children unattended. At the time of the hearing, the Bastow children were being kept three or four days a week after school by a babysitter who did not speak English.

Appellant's liaison with Barron has alienated her from her parents. Appellant's mother and father have never received Barron and appellant has not visited in their home for three or four years. It has been largely through appellee's efforts that Keith and Kelli have been able to visit their maternal grandparents.

There was evidence that the Bastow children appeared poorly kept, were dirty, and wore dirty...