Brillhart v. Brillhart

• Decision Date: 08 November 1943
• Docket Number: No. 5577.,5577.
• Citation: 176 S.W.2d 229
• Parties: BRILLHART v. BRILLHART.
• Court: Texas Court of Appeals

176 S.W.2d 229

BRILLHART v. BRILLHART.

No. 5577.

Court of Civil Appeals of Texas. Amarillo.

November 8, 1943.

Rehearing Denied December 13, 1943.

Appeal from District Court, Hansford County; Jack Allen, Judge.

Suit by Lena Brillhart against Harold C. Brillhart for modification of a judgment affecting the custody, support and maintenance of the parties' minor child, Donald Wayne Brillhart. Judgment for plaintiff, and defendant appeals.

Affirmed.

Boyer & McConnell, of Perryton, for appellant.

Hoover, Hoover, & Cussen, of Canadian, for appellee.

PITTS, Chief Justice.

This is a child custody case instituted by Lena Brillhart, appellee, against Harold C. Brillhart, appellant, for a modification and change of a judgment entered on November 1, 1941 by the District Court of Hansford County, affecting the custody, support and maintenance of their male child, Donald Wayne Brillhart, born on August 29, 1938 during the marriage of appellant and appellee who were divorced by a decree entered by the said District Court of Hansford County on April 8, 1940.

The record discloses that appellant and appellee were married on August 29, 1937, separated on January 1, 1940, and divorced as stated above; that the trial court found in the decree of divorce that neither parent had sufficient means to support said child and gave the custody of it to G. C. Brillhart, the father of appellant; that appellant married again on June 30, 1940; that Mrs. G. C. Brillhart, mother of appellant, died subsequent to the awarding of the child to the said G. C. Brillhart and prior to September 30, 1941, on which date appellant filed a suit against G. C. Brillhart, making appellee a party defendant thereto, for a change and modification of the order awarding the custody of the child to the said G. C. Brillhart; that appellant and appellee appeared for a hearing in said case on November 1, 1941 but the said G. C. Brillhart did not appear when the trial court, after hearing the parties, entered an order on said date taking the custody of said child from the said G. C. Brillhart and awarding it to appellant for nine months each year, September through May (except for Christmas week) and awarding it to appellee for three months each year, June, July and August, and during Christmas week, and requiring appellant to pay $20 per month to appellee during the three months she had said child and $10 for Christmas week for the support and maintenance of said child; that subsequent to the divorce decree appellee has spent some two and one-half years in attendance at college preparing herself for a teacher and has been teaching in the public schools; that on January 9, 1943 appellee filed this suit for a modification and change of the custody of said child and for such provisions for its support and maintenance as the trial court may deem proper; that a hearing was had on April 24, 1943 when the parties and several others testified, and the trial court rendered judgment modifying and changing his former decree by awarding the custody of said child to appellee for nine months out of each year, that is, from September 1st through May, and awarding said child to appellant during the months of June, July and August of each year, and requiring appellant to pay for the support and maintenance of said child $20 per month during the nine months of each year that appellee has said child, from which judgment appellant perfected his appeal to this court. The record discloses further that the same trial judge conducted all three hearings and rendered all three judgments referred to herein above.

Appellant levelled a number of exceptions at appellee's pleadings and joined issue with appellee on the matters alleged. The trial court sustained two of appellant's exceptions but overruled the others, about which appellant complains, contending that appellee's pleadings are too general and involve matters previously disposed of by the trial court.

Appellant makes seven assignments of error as a result of his exceptions being overruled by the trial court, all of which are here overruled, since it appears to us that appellee's pleadings are sufficient, especially since the pleadings in child custody cases are usually considered of little importance. As a rule the trial judge in such cases should not permit technical rules of practice to have a controlling effect but he should exercise broad equitable powers in determining which custodian is the proper person to best serve the child's interest. Williams v. Guynes et al., Tex. Civ.App., 97 S.W.2d 988; Wilson v. Wilson, Tex.Civ.App., 88 S.W.2d 1086; Williams v. Perry, Tex.Com.App., 58 S.W.2d 31; and Tunnell v. Reeves, Tex.Com.App., 35 S.W.2d 707.

Appellant complains about the admission of evidence by the trial court concerning matters that had been previously disposed of by the trial court and concerning the time when the formation of character in a child begins, but we find no merit in such complaints since the trial court, who had conducted all other previous hearings and who was doubtless already familiar with all the facts, found in this hearing that both parents were proper persons to have custody of the child but, in his discretion, gave the child to appellee for a greater part of the time and therefore such testimony was not harmful, even if not proper. Turk et al. v. McLure, Tex....