Cox v. Young, 4066

• Decision Date: 15 July 1966
• Docket Number: No. 4066,4066
• Citation: 405 S.W.2d 430
• Parties: James Douglas COX, Appellant, v. Carl E. YOUNG, Appellee. . Eastland
• Court: Texas Court of Appeals

Page 430

405 S.W.2d 430

James Douglas COX, Appellant, v. Carl E. YOUNG, Appellee.

No. 4066.

Court of Civil Appeals of Texas.

Eastland.

July 15, 1966.

Rehearing Denied Aug. 12, 1966.

Kenneth D. Furlow, Beaumont, for appellant.

Nipper & Knox, Houston, for appellee.

COLLINGS, Justice.

This is a writ of habeas corpus proceeding involving child custody . James Douglas Cox, a resident of New Iberia Parish, Louisiana, brought the action against Carl E. Young of Harris County. The court denied the writ and gave custody of the minor child to its stepfather, Carl E. Young. James Douglas Cox has appealed.

The record shows that appellant was married to Frances Evelyn Young, now deceased, on December 31, 1953; that on February 1, 1956, Carla Katherine Cox, the child involved, was born to that marriage; that Cox and his wife, Frances Evelyn, were divorced in Jefferson County on August 15, 1957, and custody of the minor child was granted to the mother, with a provision requiring appellant to contribute child support in the amount of $50.00 per month and allowing visitation by appellant. Appellant contributed to the support of the child until May of 1960. In July of 1960, appellant was cited for contempt but the child's mother elected to discontinue that action. Another contempt proceeding was instituted in September of 1960 and, upon a hearing, appellant was found in contempt and a capias was issued. Appellant then began to pay child support and was credited with four payments during the following seven months period. In April of 1961, appellant again ceased making child support payments and, in August of 1961, he was cited for contempt for non-support by the Louisiana Department of Welfare, apparently at the request of the mother. The District Court of New Iberia Parish, Louisiana, on August 14, 1961, imposed a fine and jail sentence upon appellant which was suspended on condition that he would regularly pay child support. Appellant testified that during the time he was delinquent he was out of work and unable to make such payments. Appellant further stated that sometime thereafter when he again ceased making payments it was because he did not know his first wife's address; that some of the payments he did make were returned. On February 7, 1962, the probation was removed by the District Court of New Iberia Parish, Louisiana, for the stated reason that 'probationer's divorced wife cannot be located and child support payments have been returned.' In March, 1964, the child's mother again attempted to compel appellant to pay child support but the outcome of that attempt is not shown in the record.

Sometime around Christmas of 1964, the child's mother married appellee, Carl E. Young. Mrs. Young died during June of 1965. The record indicates that there was no visitation or communication between appellant and his child from 1961 until the time of her mother's death; that, since the date of the divorce in 1957, appellant has never sent Christmas presents, Christmas cards, birthday presents or birthday cards to his daughter . The evidence further indicates that the minor child, on various occasions, made extended visits to appellant's parents, in Sulphur Springs, Texas, and that for a period of time said child attended school in Sulphur Springs while the mother was ill. Appellant testified that he first learned of this fact during the trial. Appellant also stated that for a time he made efforts to visit his daughter but that on each occasion his first wife 'started a big stink' with his family. The present Mrs. Cox testified that the girl's mother 'kept calling my house and causing trouble * * * begging my husband to leave me and go back to her'.

On November 6, 1961, appellant executed a 'consent for adoption' document which recited the mother's mailing address as 5235 Pennsdale, Houston, Texas. The instrument recited that appellant was the father of Carla Katherine Cox; that appellant agreed to permanently surrender the care, custody and parental authority of said child to one F.R. Augustine 'who is now married to the natural mother, Mrs. Frances Augustine'. The instrument further recited that appellant consented to the adoption of said child by the said F .R. Augustine upon judgment of any court of competent jurisdiction. There is no showing that the child was ever adopted by Augustine.

We overrule appellant's first point complaining of the action of the court in allowing the introduction of the 'consent for adoption' document. Appellant's contention that the instrument has no binding contractual effect is unquestionably correct. Also appellant testified, in effect, that the reason he signed the consent for adoption was to avoid the trouble his first wife was causing between him and his second wife. The instrument was admissible, however, because it is material to the principal issue involved concerning whether appellant was neglecting his child without regard to his parental responsibilities. It was admissible, together with other evidence which appellee...