Conlee v. Burton

• Decision Date: 23 March 1945
• Docket Number: No. 13304.,13304.
• Parties: CONLEE v. BURTON.
• Court: Texas Court of Appeals

Page 713

188 S.W.2d 713

CONLEE v. BURTON.

No. 13304.

Court of Civil Appeals of Texas. Dallas.

March 23, 1945.

On Rehearing May 15, 1942.

Rehearing Denied June 5, 1942.

Appeal from District Court, Rockwall County; G. O. Crisp, Judge.

Proceeding by Robert H. Burton against Mary Cecelia Burton Conlee for the custody of William Henry Burton, a minor. From an order overruling respondent's plea of privilege and a judgment awarding the minor's custody to petitioner, respondent appeals.

Judgment reversed, plea of privilege sustained, appeal from judgment dismissed, and transfer of case to the district court of Jack county ordered.

Thos. B. Ridgell, of Dallas, for appellant.

Carl Miller, of Rockwall, for appellee.

LOONEY, Justice.

This is a child custody case; the deplorable and tragic events leading to the present controversy, in short, are these: On December 12, 1938, Lemon H. Burton and Mary Cecelia Burton, man and wife, were divorced by a decree of the District Court of Rockwall County, Texas, and the custody of their only child, a son, William Henry Burton, now about eight years of age, was awarded part time to each parent. After the divorce, Mary Cecelia married Dudley (or Dick) Conlee, and for some time prior to December 20, 1941, resided with her second husband at the town of Bryson, Jack County, Texas, and it was there she kept the child during the periods she was entitled under the orders of court to have his custody. On December 20, 1941, Lemon H. Burton, the father, was at Bryson, presumably to take charge of his son as authorized by the divorce decree, when he was shot and killed by Conlee, the wife's second husband. The facts leading to the killing are not revealed by the record. Mrs. Conlee consented for Landon R. Burton, brother of the deceased, to take the boy to the funeral of his father at Royse, Rockwall County, with the understanding that he would be returned after Christmas. In the meantime, on December 24, 1941, Robert H. Burton, appellee herein, also a brother of the deceased, filed a pleading in the divorce suit, denominated a plea of intervention, but, in legal effect, an original action, alleging in short the precedent facts, including the recent slaying of the boy's father by the present husband of the mother, contending that, if she is permitted to retain custody of the boy, he would reside in the home with, and be under the domination and control of the man Conlee who just recently slew the boy's father, which would prove highly detrimental to the best interest of the child, and was of such a fundamental and radical nature as to require that the custody of the child be taken from the mother, and permanently given to appellee, who is not only willing and anxious to have custody of the child, but is able to furnish him a good home, wholesome environment, and educational advantages, etc. On filing the petition, the court entered an order setting the hearing thereon for the 17th day of January, 1942, and placed the boy, pending the hearing, in the custody of his uncle, R. H. Burton, appellee herein.

The appellant, Mrs. Conlee, who resides at the town of Bryson, Jack County, Texas, filed a plea of privilege to be sued in the county of her residence. This plea was duly contested by appellee but we do not deem it necessary to set out the allegations of the controverting affidavit. The plea and contest were heard on January 17, 1942, resulting in judgment for appellee, sustaining the contest and overruling appellant's plea; to which she excepted and gave notice of appeal. Thereupon and immediately, on the same day, appellant filed her answer to appellee's petition, and after hearing evidence, the court sustained the contention of appellee, awarded to him the care and custody of said minor, William Henry Burton, and directed that the mother, Mary Cecelia Conlee, be privileged to see the minor at all convenient times, but that the child should not be taken or removed by her from Rockwall County. To this judgment, appellant excepted and gave notice of appeal.

Although each of these judgments, that is, the interlocutory judgment overruling the plea of privilege and the judgment awarding the permanent custody of the boy to appellee, was excepted to and notice of appeal given, yet, only one appeal bond was executed and filed, and we think its language precludes the idea that an appeal was perfected from the judgment overruling the plea of privilege; the pertinent portion of the bond reads: "Whereas, in the above numbered and entitled cause pending in the District Court of Rockwall County, Texas, on the 17th day of January, 1942, a judgment was rendered overruling the Privilege of Mary Cecelia Burton Conlee, and further the court rendered final judgment awarding the custody of William Henry Burton to R. H. Burton, and judgment for cost, from which final judgment and order the defendant Mary Cecelia Burton Conlee desires to perfect an appeal to the Court of Civil Appeals for the Fifth Judicial Supreme District of Texas, at Dallas, Texas:" etc.

We assent to the correctness of the proposition urged by appellant, that the present is an original proceeding, designed to relitigate and readjudicate the question as to the proper custody of the minor child, based upon conditions materially changed since the divorce decree, and that the venue of the proceeding is controlled by the general provisions of the Venue Statute. See Lakey v. McCarroll, 134 Tex. 191, 134 S.W.2d 1016; Wilson v. Wilson, 137 Tex. 528, 155 S.W.2d 601. However, the new rules prescribe separate and distinct procedure for perfecting appeals from interlocutory judgments, from that prescribed for perfecting appeals generally. Appeals generally are perfected by filing with the clerk below a bond, within thirty days after the date of the judgment or order overruling motion for a new trial, Texas Rules of Civil Procedure, Rule 356, and by filing the transcript and statement of facts in the Court of Civil Appeals within sixty days from the final judgment or order overruling the motion for a new trial, etc. Rule 386, whereas, appeals from interlocutory judgments (including orders overruling or sustaining pleas of privilege) are perfected by filing bond, with the Clerk below, and the record in the appellate court within twenty days after the renditon of the judgment appealed from, Rule 385. If it could correctly be said that, one bond properly conditioned and filed within time may serve the purpose of perfecting both appeals, where, as in the instant case, the interlocutory and final judgments were rendered at same term of court (a point we do not decide), yet, we think it should explicitly appear from the language of the bond itself that, it was intended to serve both purposes. The bond in the instant case fails in that respect. Although, as shown, it recites the rendition of both the interlocutory and final judgments, yet, as indicating its specific purpose, it states, "* * * from which final judgment and order the defendant Mary Cecelia Burton Conlee desires to perfect an appeal to the Court of Civil Appeals," etc. There is no explicit indication that the bond was intended to serve both purposes; that is, of perfecting the appeal from the interlocutory order and also from the final judgment in the case.

We therefore hold that no appeal was perfected from the interlocutory order, hence that matter is not before us for adjudication.

The only question for our decision is, whether the judgment awarding permanent custody of the minor boy to his uncle, appellee herein, is sustained by evidence. We think it is. The paramount issue is the welfare of the boy, and the court below, in deciding the question, was vested with a very broad discretion and its judgment should not be disturbed unless it clearly appears that there has been an abuse of discretion. The salient facts have already been given, but not all material facts bearing upon the issue have been stated. Although meager on the point, the testimony of appellant warrants the conclusion that her acquaintance with Conlee had much to do with the estrangement, separation and divorce from Lemon H. Burton. If the boy is left in the custody of his mother, necessarily he will be in the home with and under the domination, control, and doubtless the lash of the man who not only supplanted the father in the affections of the mother, but later slew him. The child, an innocent victim of these tragic happenings, has already suffered serious detriment, and should not, in our opinion, be further penalized by being required, during his childhood, to serve under the man who has so grievously wronged him. The boy can but look with dread and horror upon the slayer of his father, and it is not at all likely that he would ever develop respect, affection, or filial regard for him; and again, conscious of his own conduct in the premises and its impact upon the life of this boy, it is not at all probable that the stepfather would regard the boy with any degree of affection, or be solicitous for his welfare, such as should be manifested by one standing in loco parentis. In a different environment, removed from such daily contacts, the boy, in a measure, may forget these tragic events. His uncle, appellee herein, has manifested solicitude for his welfare, has interposed in his behalf, and offers him a home where he will receive the affectionate care of both uncle and aunt, who have no children, in a wholesome environment where he will be permitted to enjoy advantages, educational and otherwise, that he should have.

We therefore think the judgment below was authorized by the evidence, hence is affirmed.

Affirmed.

BOND, Chief Justice (dissenting).

On the Acts of the Legislature and the decisions of our Supreme Court I am content to repose my judgment.

This appeal is primarily from an order of the District Court of Rockwall County, Texas, overruling defendant's plea of privilege. The appeal from the judgment...