Callicott v. Callicott, 14069

• Decision Date: 24 January 1963
• Docket Number: No. 14069,14069
• Citation: 364 S.W.2d 455
• Parties: Clyde Everette CALLICOTT, Appellant, v. Jeanette Fay CALLICOTT, Appellee.
• Court: Texas Court of Appeals

Page 455

364 S.W.2d 455

Clyde Everette CALLICOTT, Appellant, v. Jeanette Fay CALLICOTT, Appellee.

No. 14069.

Court of Civil Appeals of Texas, Houston.

Jan. 24, 1963.

Rehearing Denied Feb. 14, 1963.

Marvin Schulman, Houston, for appellant.

Joe S. Moss, Houston, for appellee.

WERLEIN, Justice.

This suit was brought by appellee, Jeanette Fay Callicott, to change the custody of Gary Wayne Callicott, which had been given to appellant, Clyde Everette Callicott, when appellee and appellant were divorced on September 22, 1958. Gary was born on February 2, 1954. This case went to trial May 23, 1962 when Gary was more than 8 years and 3 months old. The Judge of the Court of Domestic Relations, before whom the case was tried, entered judgment in favor of appellee changing the custody of the child from his father, who had taken care of the child during his entire life and especially during the period from the date of the divorce on September 22, 1958 to the date of the decree of the Court entered June 13, 1962, from which appellant appeals.

Appellant assigns numerous points of error. He first asserts that the trial court erred in refusing to permit Gary to testify as a witness either in open court or chambers, or to allow Gary to be examined for the purpose of determining whether he understood the nature and solemnity of an oath and was competent to testify; and that the court further erred in refusing to allow appellant to perfect a bill of exceptions from the court's ruling refusing to permit Gary to testify as a witness in behalf of appellant.

We think these points of error should be sustained. Counsel for appellant objected and excepted to the court's action in refusing to permit him to make out a bill of exceptions in the usual manner by interrogating the witness in the court's presence. Thereafter appellant undertook to prepare a bill of exceptions out of the court's presence. The court qualified this make-shift bill of exceptions as follows:

'The exception herein is qualified by reference to Statement of Fact pages 374, 382, and 462-463-464. Further the Court does not know what the witness would have testified to. In addition to ruling on pages heretofore referred to in Statement of Facts, the Court disallowed this eight year old witness because: did not feel would be bound by the testimony; and, did not wish to subject a child of these tender years to embarrassment of courtroom testimony in the presence of his parents and loved ones.

'Signed this 30th day of July, A. D. 1962.'

The record shows that when appellant called Gary as a witness, appellant's counsel stated, 'I would like for the child to be examined, whether it be in open court or in the chambers or whatever circumstances the court might desire. Now, when I--from the last statement the court made I am not certain--is the court willing to have him examined in chambers?' the court replied: 'I don't mind seeing the boy and talking with him but I will not have an eight year old boy present in an open courtroom hearing. We can do that when we finish the case. Call your next witness.'

The record further shows that counsel for appellant stated: 'I would presume the next witness will be lengthy and will run well into 5. I would like time to have Gary examined so he may be back in school Monday.' to which the court replied, 'Call your next witness.'

At pages 462, 463 and 464, Statement of Facts, counsel for appellant again tendered Gary as a witness. The court sustained appellee's objection to the testimony of the boy as being incompetent to testify although no test was made to determine the boy's qualifications. Appellant then stated that he was willing that the boy be examined by counsel either in open court or chambers, and asked that the examination be in the form of questions and answers, and that the testimony be in the presence of the court to hear and rule upon objections, and appellant tendered the witness for examination either in open court or in chambers or such other place as the court might direct. Whereupon, on the objection of appellee, the court announced in substance that he didn't mind talking to the boy or at least observing him but didn't want him as a witness in open court, but if he did talk to the boy it would be very informal and not subject to open questioning by counsel on either side, and that the court would only discuss a few matters with the child and observe him and that is as far as it would go.

We can understand the reluctance of the court to permit Gary to testify in open court before his parents. Appellant, however, tendered the boy for examination by attorneys on both sides in the court's chambers. He did not waive his right to interrogate Gary. The trial court erred in refusing to grant appellant's request to examine the boy either in open court or in chambers. In chambers the court could have readily determined the qualifications vel non of Gary to testify in the case. At his age he was in all probability qualified and very likely in possession of information that might well have...