Burtis v. Weiser, 4369.
| Decision Date | 13 June 1946 |
| Docket Number | No. 4369.,4369. |
| Citation | 195 S.W.2d 841 |
| Parties | BURTIS v. WEISER et ux. |
| Court | Texas Court of Appeals |
Appeal from District Court, Angelina County; H. T. Brown, Judge.
Suit by Thomas R. Burtis against Kenneth Miles Weiser and wife in the nature of a bill of review to set aside an adoption decree. Judgment for defendants, and plaintiff appeals.
Affirmed.
K. W. Denman, Jr., of Lufkin, and Lamar Cecil, of Beaumont, for appellant.
Musslewhite & Fenley, of Lufkin, for appellees.
This suit was instituted in the district court of Angelina County, Texas, by appellant in the nature of a bill of review to set aside a decree of adoption made and entered in the district court of Angelina County on May 19, 1945, wherein Mary Katherine Burtis, a minor child, was adopted by appellees, Kenneth Miles Weiser and wife, Johnnie Weiser, the name of said child was changed to that of Mary Katherine Weiser.
The substance of appellant's allegations was to the effect that he was the father of the minor child, Mary Katherine Burtis, that she was born to him and his wife, Doris Louise Austin Burtis on the 17th day of August, 1942, in lawful wedlock; that he and said Doris Louise Austin were legally married to each other and living together as husband and wife prior to the birth of said child and at the time of the birth of said child and that they continued to live together as husband and wife until on or about the 27th of September, 1944, at which time appellant, who was in the military service of the United States of America, was transferred to duty outside the Continental limits of the United States; that he continued in the military service of the United States and first learned of the adoption proceedings shortly before June 20, 1945, when he returned to the United States; that immediately thereafter he sought the care and custody of said Mary Katherine Burtis but was refused such custody by the appellees; that he never consented to the adoption of said Mary Katherine Burtis by the appellees and had no notice of such proceedings prior to the decree of adoption; that during his absence from the continental limits of the United States he made adequate allotment for the care of his wife and child and has never abandoned said child or failed or refused in any way to support her; that said decree of adoption is null and void because he, the appellant, has never given his consent thereto and had no notice of such proceedings and that he would not have consented thereto, and prayed that such decree of adoption be set aside and held for naught.
Appellees answered with a general denial and denied specially that appellant was the father of said Mary Katherine Burtis, and further alleged as a special answer that at the time the mother of said Mary Katherine Burtis, who is Doris Louise Austin Burtis, was conceived of said child that she was lawfully married to G. D. Austin, Jr., and that the appellant at the time the mother of said child was conceived was duly and legally married to Juanita Burtis, and that the said Doris Louise Austin Burtis was not divorced from her husband, G. D. Austin, Jr., until April 9, 1942; that she was duly and legally married to G. D. Austin, Jr., on February 16, 1940; that the appellant, Thomas R. Burtis, was not divorced from his wife, Juanita Burtis, until the 12th day of March, 1942, and at the time said child, Mary Katherine Burtis, was conceived by her mother, Doris Louise Austin Burtis, her said mother was lawfully married and was the wife of G. D. Austin, Jr.; that said child being born on the 17th day of August, 1942, was the stepchild of Thomas R. Burtis, and it was not necessary for said Thomas R. Burtis to consent to the adoption of said child by the appellees; that said Thomas R. Burtis and Doris Louise Austin Burtis were not married until the 10th day of April, 1942.
The trial was before the court without the aid of a jury. At the conclusion of the testimony, the court entered judgment denying the appellant the relief sought and upon request for findings of fact and conclusions of law found that appellant was not the father of Mary Katherine Burtis. From the judgment of the court denying the relief sought, he perfected his appeal to this court.
There are no controverted issues of fact arising upon the trial...
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Gordon v. Gordon, 18207
...child born during a valid marriage is presumed to be the legitimate child of the parties to that marriage. Burtis v. Weiser, 195 S.W.2d 841 (Tex.Civ.App.--Beaumont 1946, writ ref.). This presumption can be overcome by proof of non-access. Zimmerman v. Zimmerman, 488 S.W.2d 184 (Tex.Civ.App.......
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C.G.W. v. B.F.W.
...1972, no writ); Esparza v. Esparza, 382 S.W.2d 162, 168 (Tex.Civ.App.--Corpus Christi 1964, no writ); Burtis v. Weiser, 195 S.W.2d 841, 842 (Tex.Civ.App.--Beaumont 1946, writ ref'd); and, that blood test evidence was inadmissible to overcome the presumption. Clark, 643 S.W.2d at 797; Magana......
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Davis v. Davis
...to exclude testimony on the ground that the effect would not be in accord with the innocence of married persons. Burtis v. Weiser, 195 S.W.2d 841 (Tex.Civ.App.1946, writ ref'd); Contra, Gravley v. Gravley, 353 S.W.2d 333 (Tex.Civ.App.1962, writ Until the Court of Civil Appeals opinion in th......
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S.C.V., In Interest of
... ... Esparza, 382 S.W.2d 162, 168 (Tex.Civ.App.--Corpus Christi 1964, no writ); Burtis v. Weiser, 195 S.W.2d 841, 842 (Tex.Civ.App.--Beaumont 1946, writ ... ref'd). Texas courts have ... ...