Custer v. McGough, 2484.

• Decision Date: 24 November 1944
• Docket Number: No. 2484.,2484.
• Citation: 184 S.W.2d 668
• Parties: CUSTER v. McGOUGH.
• Court: Texas Court of Appeals

184 S.W.2d 668

CUSTER v. McGOUGH.

No. 2484.

Court of Civil Appeals of Texas. Eastland.

November 24, 1944.

Rehearing Denied December 22, 1944.

Appeal from District Court, Eastland County; Geo. L. Davenport, Judge.

Proceeding by Pat McGough against Lillian Delores Custer to modify an original divorce decree awarding custody of minor children to Lillian Delores Custer, then McGough. From judgment entered, Lillian Delores Custer appeals.

Affirmed.

Eugene Lankford, of Cisco, and Earl Conner, Sr., of Eastland, for appellant.

Frank Sparks, of Eastland, for appellee.

LESLIE, Chief Justice.

December 2, 1942, Lillian Delores McGough filed suit for divorce and custody of their three minor children against her then husband, Pat McGough. That cause was tried January 9, 1943, and the court granted the divorce and custody of the three children (Barbara Sue, Lewis Don and Kay Ellen, age 5, 4 and 2 years, respectively) to the mother, appellant herein, and required the father to contribute $25 per month to the support of the children.

The original suit was No. 17626 on the docket of the 88th District Court of Eastland County. January 23, 1944, Lillian Delores McGough married Joe Custer, her present husband and codefendant.

April 5, 1944, Pat McGough purports to file in the original divorce suit the instant proceeding, or what he denominates a motion "to reform and amend the decree of this Court (88th) made and entered in the above entitled and numbered cause on the 9th day of January, 1943, insofar as the care, custody, and control of the minor children named therein is concerned for the reason that since the making of such decree the conditions and environment surrounding said children; the attitude, conduct and habits of the Plaintiff has so changed that said Plaintiff is not a fit and proper person to have the care, custody and control of said minor children and the best interest and well-being of said minor children require that they be taken from the custody and control of the Plaintiff and that such care, custody and control of said minor children * * * be awarded to the Defendant in this cause."

Said Pat McGough then proceeds in said pleading ("motion") to allege in detail the changed conditions and environments and charges the mother with most improper and immoral conduct. Aside from the designation of this pleading as a "motion" and the filing thereof under the original suit number, there can be no doubt about the allegations of the pleading being entirely sufficient to allege such changed conditions and environments since January 9, 1943 (date of divorce), as would, if true, warrant and justify a different or modified order as to the custody of the children.

On the day before the filing of said purported "motion," the district judge endorsed on the same an order directing the mother (Mrs. Custer, appellant) to appear before said court at 10 o'clock a. m. on April 14, 1944, to "show cause why the care, custody and control of Barbara Sue McGough, Lewis Don McGough, and Kay Ellen McGough, Minors, should not be awarded to the Defendant Pat McGough * * *."

"A precept to serve such motion" was also issued on April 5, 1944 and served on the wife April 10, 1944, "3 days prior to the time set for the hearing."

At the time set, April 14, Lillian Delores Custer, joined by her husband, and designating themselves "defendants" answered McGough's pleading, specially excepting thereto on various grounds and entering a general denial of "the material allegations in said `petition' herein filed April 5, 1944, * * *."

All parties were present in court and filed pleadings fully presenting their respective contentions as to the proper custody of the children. No objection was made as to the sufficiency of service or character thereof and the trial proceeded before the court. Each litigant presented his evidence, and at the conclusion thereof the trial court decreed that the mother, "Lillian Delores Custer shall retain the care, custody, and control of the minor children, Barbara Sue and Kay Ellen McGough, and shall have the care, custody and control of the minor son, Lewis Don McGough during the period of time from September 1, 1944, until May 15, 1945, and for the same period of time of each year thereafter until further orders of this Court, and that the said Defendant Pat McGough shall have the care, custody and control of the minor son, Lewis Don McGough, from May 15, 1944, until September 1, 1944, and during the same period of time each year thereafter until further orders of this court." The last judgment differed from the first judgment in that (1) the custody of the small son was granted to the father for 3½ months (May 15th to September 1st) each year, and (2) the father was required to increase to $10 per month his contribution to each child's support while in the custody of the mother....