Duckworth v. Thompson
| Decision Date | 31 October 1929 |
| Docket Number | (No. 840.) |
| Citation | 22 S.W.2d 528 |
| Parties | DUCKWORTH v. THOMPSON et ux. |
| Court | Texas Court of Appeals |
Appeal from District Court, Bosque County; O. B. McPherson, Judge.
Habeas corpus proceeding by O. D. Duckworth against J. O. Thompson and wife. Judgment for defendants, and plaintiff appeals. Affirmed.
T. R. Mears, of Gatesville, for appellant.
J. P. Word and H. J. Cureton, both of Meridian, for appellees.
This is an appeal from the judgment of the district court in a habeas corpus proceeding, instituted by appellant, O. D. Duckworth, against appellees, J. O. Thompson and wife, Bertie Thompson, to recover control and custody of L. D. Duckworth, a minor son of appellant.
L. D. Duckworth was eight years old at the time of trial. He was delivered prematurely by an operation in a futile attempt to save his mother's life. She died within an hour after his birth. Mrs. Thompson, one of the appellees herein, at the request of his father, and with the approval of his relatives, took charge of him about an hour after his birth, and has had charge of him, and has tenderly cared for him ever since. She and the child's mother were sisters. He was a delicate child from the beginning, and was carried on a pillow for five months. For about three months his condition required constant attention all through the night. Mrs. Thompson had the sole care of him during such time. Her husband and son frequently did the housework so that her entire time and energy could be devoted to his care. He is still delicate in health and of a timid disposition. He is devotedly attached to his foster parents, especially his foster mother. A physician testified that the sundering of such associations and the tender ties of affection existing between said child and Mrs. Thompson would be very detrimental to him in his then state of health.
Appellant married a second wife about four years before the trial. She was a sister of appellee Thompson, and had made her home with him. Cordial relations existed between appellant and his wife and appellees until a misunderstanding arose over the fact that appellee Thompson enrolled said child on the scholastic census under the surname of Thompson instead of Duckworth. Some hasty words were exchanged between appellant and Thompson about the matter, and shortly thereafter this suit was instituted. Prior to that time appellant occasionally visited the home of appellees, and incidentally enjoyed association with his child. There is no testimony that appellant exhibited any special affection for him during said time. Except for a small doctor's bill and one or two other small sums aggregating approximately $100, appellees have maintained said child the entire time at their own expense.
Mrs. Thompson lavishes maternal affection upon said child. The year preceding the trial was his first within scholastic age. He was too delicate to attend school with anything like regularity, but she procured books and taught him at home so that his teacher testified he was up with his class. Mr. Henshaw, the child's maternal grandfather, testified that he advised appellant at the time of the child's birth to give it to Mrs. Thompson to rear, and told him, that if he did that, he must never take it away from her, because it would be like her own, and that appellant said, "Henshaw, upon my honor I will never take it from her." Mrs. Thompson testified that she accepted the care of said child an hour or two after his birth; that about two days later she and appellant named him together for his mother and father, and that appellant told her at that time to take the baby, and raise him up, and that he gave him to her "for always." Another witness testified that appellant so stated while on the way to the burial of the child's mother. Appellant denied said statements in toto. There are some other conflicts in the testimony, but they must all be considered as resolved against appellant by the verdict of the jury and the judgment of the court. Appellees reside near Kopperl, about 40 miles from Valley Mills, where appellant resides. It would be more convenient for the child to attend school from his father's home than from the home of appellees, but appellees provided a way for him to ride to and fro when he was able to attend school during the preceding year, and expressed their willingness to continue to do so. Appellees admitted in open court that the general reputation of appellant and his wife in the community in which they lived for being nice, honorable, upright, respectable, and law-abiding citizens was good. The testimony showed without contradiction that appellees also possessed such high reputation, and, in effect, that either family would afford a suitable home for the child. Other matters of relative advantage or disadvantage in reference to the respective homes must also be considered solved in favor of appellees by the verdict and judgment.
The testimony disclosed that the child had learned that appellant was seeking to remove him from the only home he had ever known and from those who had loved and cared for him all his life, and whom he had learned to love in return, and to take him to appellant's own home, and that he became greatly alarmed at the prospect. He qualified as a witness to the satisfaction of the court, and testified in the case without challenge of his competency as a witness by appellant. He testified that appellees had always been good to him; that he loved them "a whole lot"; and that he wanted to continue to stay with them. He further testified that he had been told by appellees to love his father and be nice to him when he came to see him, but that he did not want to go and live with him, but desired to remain with appellees. He further testified that at that time in the courtroom he did not want to go and sit in his father's lap nor hug him. Appellees testified that appellant and his wife were welcome at their home, and that they could come and visit the child there whenever they chose, and that they bore no ill will on account of this suit.
The court, at the request of appellees, and over the protest of appellant, impaneled a jury for the trial of the cause. The cause was submitted to the jury upon a single issue, as follows:
"Taking into consideration only the best interests of the minor child, L. D. Duckworth answer whether said minor child should be left in the care and custody of the defendants, J. O. Thompson and wife, Bertie Thompson, or should be given into the custody and care of the plaintiff, O. D. Duckworth."
The jury answered that he should be left in the care and custody of the appellees. The court adopted the finding of the jury as his finding in the case, and further found that the best interests of said minor child would be served by leaving him in the care and custody of appellees; that they had cared for and reared him from his birth for a period of eight years; that they were suitable persons morally, financially, and physically to have the custody and care of said child, and that their home was a suitable place morally and from the standpoint of health and education for the rearing of said child; that it would be detrimental to his best interests to break the tender ties existing between him and appellees and place him elsewhere, notwithstanding other surroundings would be equally suitable morally, financially, and physically for his rearing. The court rendered judgment in accordance with said findings, and incorporated therein provisions for the visiting of said child by appellant at the home of appellees, and for visiting by said child in the home of appellant. The reasonableness and sufficiency of such provisions are not assailed.
Opinion.Appellant presents as ground for reversal the following proposition:
"Where the court finds that the two homes are equally suitable morally, financially and physically, for the rearing and education of a child, it is without authority of law to deprive the father of the custody of his child."
Our Supreme Court and many of our Courts of Civil Appeals have frequently declared that the father is the natural guardian of his child, and that it will be presumed that its interests and welfare will be best promoted by continuing such guardianship, until it is made to plainly appear that the father is no longer worthy of the trust. Such is the substance of a quotation incorporated by our Supreme Court in its opinion in State v. Deaton, 93 Tex. 243, 54 S. W. 901, 903, and there declared to be sustained by the authorities. See, also, Edwards v. Edwards (Tex. Com. App.) 295 S. W. 581, 582, 583; Smith v. Long (Tex. Civ. App.) 181 S. W. 478, 479; Carter v. Lambert (Tex. Civ. App.) 214 S. W. 566, 567, 568; and Sears v. Davis (Tex. Civ. App.) 19 S.W.(2d) 159, 162, et seq., all cited by appellant in support of the proposition under consideration. That such is the general rule is apparently conceded by appellee. Appellee contends, however, that the facts of this case constitute it an exception to such general rule, and bring it within the rule announced by the court in Dunn v. Jackson (Tex. Com. App.) 231 S. W. 351, 353, et seq. The exact contention made by appellant in this case was urged by the father in that case and adopted and applied by the trial court in determining the judgment entered therein. The Commission of Appeals held that the trial court erred in doing so, and in that connection said:
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