Brazier v. Brazier
| Decision Date | 28 February 1980 |
| Docket Number | No. 8385,8385 |
| Citation | 597 S.W.2d 442 |
| Parties | Belvon BRAZIER, Appellant, v. Thelma BRAZIER, Appellee. |
| Court | Texas Court of Appeals |
Paul G. Johnson, Huntsville, for appellant.
Mary Fly, Beaumont, for appellee.
Appellant, Bevlon Brazier, appeals from a judgment terminating his parental rights as to two of his minor children.
Appellee, Thelma Brazier, filed suit for divorce on June 13, 1978. The original petition was followed by three amended petitions. The original petition contained the allegation that the parties were the parents of three named minor children (none of which are involved in the termination of parental rights made the subject of this appeal), and appellee sought to be appointed managing conservator of such minors.
By her first amended petition, filed September 14, 1978, appellee for the first time named the two children, Thad and Nicole, and sought the termination of appellant's parental rights as to these two children, without specifically stating the grounds therefor. On December 12, 1978, she filed her second amended petition, and, on April 2, 1979, her third amended petition was filed. The second amended petition sought termination of the parental rights as to Thad and Nicole upon grounds of non-support pursuant to Tex.Fam.Code Ann. § 15.02(1)(F), (Vernon Supp.1980), the Family Code. The third amended petition sought termination of parental rights and legitimation of the two children as to their "natural father, Honor James Nobles."
In a non-jury trial, the court granted a divorce to appellee, named her as managing conservator of all five children of the marriage, and named appellant possessory conservator of the three named children, and terminated his parental rights as to Thad and Nicole. The court found that appellee had not successfully rebutted the presumption of legitimacy as to the two children, but did find that appellant had failed to support the two children in accordance with his ability for a period of one year ending within six months of the date of the filing of the petition.
Appellant asserts in his first point there is no evidence to support a finding that he failed to support his two children, Thad and Nicole, in accordance with his ability during a one-year period ending within six months of the filing of the petition for termination. In considering this no evidence point, we must review the evidence in the light most favorable to the finding and disregard all evidence and inferences to the contrary. Rourke v. Garza, 530 S.W.2d 794 (Tex.1975).
The first question with which we are confronted is when does the period of "failure to support" begin? Tex.Fam.Code Ann. § 15.02(1)(F) (Vernon Supp.1980) provides for termination of parental rights if the court finds that:
Appellant contends the beginning date in computing the time for "failure to support" is determined by the date of the filing of appellee's second amended petition December 12, 1978, contending the one-year period relied upon for non-support could not begin before June 1977. Appellee contends the beginning date is the date of the filing of the original petition. We do not agree with either contention.
The original petition, filed June 13, 1978, prayed for divorce, managing conservatorship of only three minors, omitting any reference to the two children, Thad and Nicole. The first amended petition, filed September 14, 1978, for the first time named the two children and sought termination of appellant's parental rights. This was the first time an action for termination of such rights was instituted and constituted the "filing of the petition" within the meaning of that term as used in Section 15.02(1)(F) of the Family Code. The third amended petition, filed April 2, 1979, superseded and completely supplanted the pleadings which were amended. West Texas Equipment Co. v. Walker, 417 S.W.2d 864 (Tex.Civ.App. Amarillo 1967, writ ref'd n. r. e.); King v. Air Express International Agency, Inc., 413 S.W.2d 838 (Tex.Civ.App. Houston 1967, no writ); Tex.R.Civ.P. 65. The third amended petition relates back to the time of filing the first amended petition. Texas Employers Insurance Ass'n v. Campion, 236 S.W.2d 193 (Tex.Civ.App. Austin 1950, no writ). Therefore, the beginning date for the "non-support" period would be March 14, 1977.
The record before us, when viewed by the appropriate standard, shows that the parties separated in June 1967, which was before the conception and birth of the two minor children. Appellee began to live with Nobles in August...
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...606 P.2d 573 (Okl. 1980) (willful failure to pay support as ordered in divorce decree a ground for termination); Brazier v. Brazier, 597 S.W.2d 442 (Tex.Civ.App. 1980) (failure to support when able to do so ground for The provision in section 600A.8(4) for termination of parental rights for......
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