Carter v. Lambert
| Decision Date | 21 June 1919 |
| Docket Number | (No. 9131.) |
| Citation | 214 S.W. 566 |
| Parties | CARTER v. LAMBERT et ux. |
| Court | Texas Court of Appeals |
Appeal from District Court, Callahan County; Joe Burkett, Judge.
Habeas corpus by George Carter against Henry Lambert and wife, to obtain the custody of a minor daughter of petitioner. From a judgment awarding the custody of the child during part of the year to respondents, her grandparents, petitioner appeals. Reformed and affirmed.
F. S. Bell and Otis Bowyer, both of Baird, and Jno. B. Littler, of Big Spring, for appellant.
B. L. Russell, of Baird, and Walter L. Morris, of Ft. Worth, for appellees.
This suit arose out of a controversy over the right of custody of an eight year old child, Dona May Carter, between her father, George Carter and her maternal grandparents, Henry Lambert and wife. A former suit involving the same question had been compromised, and an agreed judgment formulated and entered upon the docket of the court, but it seems it was not incorporated in the minutes. Some feeling seems to have been engendered between the father and the grandparents, and in the effort to comply with the terms of the agreed judgment misunderstandings arose, and the father concluded that he was unduly restricted, by the actions of the grandparents, in visiting the child during the period of the year for which the grandparents were awarded the custody of the minor. Hence he filed in the same court in which the former judgment was rendered a petition for a writ of habeas corpus, praying that upon hearing he be awarded the possession, care, and control of his minor daughter. An answer was filed, and upon a hearing the court awarded the possession, care, and custody of the child to the grandparents during the vacation period and to the father during the nine months or less of the school period. From this judgment, the plaintiff has appealed.
The court filed his findings of fact and conclusions of law. He found the minor child was the daughter of plaintiff and the deceased daughter of defendants; that some two or three years after the marriage of Mr. and Mrs. Carter Dona May Carter was born, and that her mother died when the babe was 16 days old; that an agreement was entered into between the father of the child and Mrs. Henry Lambert, one of the defendants, that Mrs. Lambert should raise the said child and have the care, custody, and control of said child subject to the orders of the father, who was to live with the Lamberts; that said child and father resided with the Lamberts for some seven years before Carter remarried; that during said period there was no friction or ill will between the Lamberts and Carter, but that after the second marriage the father claimed possession of said child, and was refused the custody by Mr. and Mrs. Lambert, whereupon Carter filed habeas corpus proceedings as aforesaid. The court further found that a disagreement arose between plaintiff and defendants as to the terms of the said agreed judgment. The court further found that defendants were suitable persons to have the care, custody, and control of said child during the months of June, July, and August, and that the father and stepmother were suitable persons to have the care, custody, and control of the child during the other nine months, or during the school term. Hence the court concluded as a matter of law:
"That by reason of said agreement and the relationship of the grandparents and the parents of said child the said grandparents are entitled to the care, custody, and control of said child during the vacation period, and that, as father, George Carter, and stepmother, Mrs. George Carter, are entitled to the care, custody, and control of said child during the nine months, school period, as set out in said judgment."
The statement of facts sustains the finding of the court as to the suitableness of the father and stepmother to have the care, custody and control of the minor child. The evidence further shows that Mrs. Carter is desirous or having the care and custody of the child, and that she is affectionate towards it, and the little girl is affectionate towards her stepmother; that Mrs. Carter is a lady of refinement, and capable of controlling and caring for said child; that the Carters have a home in the town of Big Spring, paid for, and are able and anxious to send the little girl to school and give her an education befitting her station in life; that the father is a railroad man, an engineer, earning from $165 to $200 a month; that the Carter home is within a short distance of the high school and also of the ward school in the town of Big Spring; that the father is devoted to the child and the child to the father. The evidence likewise supports the finding of the court that the grandparents are suitable persons to have the care and custody of the child, and that they are devoted to the little girl and the little girl to them; that they are willing, able, and anxious to have the child with them during the vacation period and give it all necessary care and support.
Under such circumstances, the...
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