Dunn v. Jackson

• Decision Date: 01 June 1921
• Docket Number: (No. 228-3404.)
• Parties: DUNN v. JACKSON.
• Court: Texas Supreme Court

231 S.W. 351

DUNN v. JACKSON.

(No. 228-3404.)

Commission of Appeals of Texas, Section A.

June 1, 1921.

Error to Court of Civil Appeals of Sixth Supreme Judicial District.

Habeas corpus proceedings by J. T. Jackson to recover from Mrs. L. A. Dunn the custody of his minor child. Judgment for plaintiff was affirmed by the Court of Civil Appeals (212 S. W. 959), and defendant brings error. Judgments of Court of Civil Appeals and of district court reversed, and cause remanded for new trial.

R. R. Taylor, of Jefferson, for plaintiff in error.

Schluter & Singleton, of Jefferson, for defendant in error.

SPENCER, J.

This habeas corpus proceeding was instituted by J. T. Jackson to regain the custody of his minor child, Annie Jackson, from the custody of the child's maternal grandmother. The father was awarded custody of the child, and from this order respondent appealed to the Court of Civil Appeals, which court affirmed the judgment of the trial court. 212 S. W. 959.

The findings of fact and conclusions of law by the trial court are as follows:

"(1) I find that Annie R. Jackson was born in February, 1905, in Marion county, Tex., and while she was an infant only two weeks old her mother died, and her grandmother, Mrs. L. A. Dunn, was present at the death of Mrs. J. T. Jackson, her daughter, and that the applicant herein, J. T. Jackson, consented for Mrs. L. A. Dunn to take his infant daughter and care for her, and consented at that time not to retake the custody of the child from its grandmother.

"(2) Mrs. Dunn took the care and custody of Annie Jackson, and cared for her tenderly and well from that time to this date.

"(3) J. T. Jackson remarried after his first wife's death, and to this marriage were born two children, both girls. The older is past ten years of age, the younger is eight years of age.

"(4) A great deal of the time since J. T. Jackson's second marriage he has lived in Marion county, but for the last several years he has lived in Louisiana.

"(5) I find that Mrs. L. A. Dunn is of good moral character and an indulgent grandmother, but for the past three years has been practically an invalid, but is now somewhat improved; that she and her husband have separated and are not now living together, but she is living with a single son about 25 years of age, and she and this single son and another son who is working in the oil fields of Louisiana, and a daughter who is married are very fond and almost passionately attached to Annie Jackson, and that she likewise is very fond of them and does not want to leave them. The grandmother does not oppose Annie going with her father if she wishes to go.

"(6) I find that J. T. Jackson is a man of honorable deportment and integrity, is kind and good to his family, but of a temperament that is not enthusiastically demonstrative in his affections; that he loves his daughter and is able and is always a proper person to have the care and custody of his own children; that he is now earning $140 per month and is working in Marion county, but has only recently moved to Marion county from Louisiana, and his second wife and two daughters have not yet returned to Marion county, but will do so at once; that he is diligent, industrious, and able to educate and care for and educate his daughter and desires her care and custody.

"(7) I find that the stepmother of Annie Jackson long desired that she be brought to her father's home and raised with her half-sisters, and the only reason that it has not been heretofore done is that Annie's father regretted very much to deprive the grandparents of the child for whom they had formed such strong attachment.

"(8) I find that in recent years there has become an estrangement from some cause of the child against her father, stepmother, and half-sisters, and that she now bears no more affection for them than if they were rank strangers about whom she knew nothing, and I am unable to determine what the cause is.

"(9) I find that J. T. Jackson has not contributed a great deal to the support and maintenance of his daughter Annie, and that her support and maintenance has been furnished by her grandparents and two uncles and an aunt. I find that several years ago, when Annie was small, her stepmother purchased goods and made up some clothing or wearing apparel for Annie and sent them to her, and that Annie's aunt and grandmother returned the clothing with no explanation whatever, but that they now say they were returned because they were too small and cheap and poorly made; and I am led to believe there is a very decided dislike on the part of the grandmother, uncles, and aunt of Annie towards Annie's stepmother, without any apparent cause that I am able to find.

"Conclusions of Law.

"(1) I conclude that the parents are the natural guardians of their minor children and entitled to their custody as against the world, except in instances where the parents are of such character that the association of the child with the parent would be injurious to either the physical, moral or educational welfare of the child, and the burden is on those seeking to defeat the parental custody to establish such unfitness by clear and satisfactory proof.

"(2) I conclude that the agreement of J. T. Jackson with the grandmother of Annie to never retake the custody of Annie from her grandmother cannot in any...