Fettig v. Fettig, 1414

• Decision Date: 18 June 1981
• Docket Number: No. 1414,1414
• Citation: 619 S.W.2d 262
• Parties: Rose Marie FETTIG, Appellant, v. Stewart Eldon FETTIG, Appellee.
• Court: Texas Court of Appeals

Page 262

619 S.W.2d 262

Rose Marie FETTIG, Appellant, v. Stewart Eldon FETTIG, Appellee.

No. 1414.

Court of Civil Appeals of Texas, Tyler.

June 18, 1981.

Randall C. Simmon, Office of Benjamin J. Cuba, Temple, for appellant.

Henry Taylor, Jr., Taylor, Taylor, Gauntt & Guess, Temple, for appellee.

SUMMERS, Chief Justice.

This appeal arose out of a divorce action brought by the father, Stewart Eldon Fettig (appellee) against his wife, Rose Marie Fettig (appellant), who filed an answer and counterclaim. After a non-jury trial, the trial court granted the divorce, divided the property of the parties, appointed the father managing conservator of their four children and named the mother possessory conservator of said children with specified rights of possession and visitation. Rose Marie Fettig is now appealing from that portion of the divorce judgment which appointed Stewart Eldon Fettig managing conservator of the children, predicating her appeal upon sixteen points of error.

We affirm.

The record reveals that the parties were married on or about January 10, 1960. The four children of the marriage, all under 18 years of age, are: a girl, Deanna Marie Fettig, born September 13, 1963; a girl, Jacqueline J. Fettig, born March 1, 1966; a boy, Lester Allen Fettig, born February 28, 1967; and a boy, Daron J. Fettig, born September 27, 1970.

Upon appellant's request the trial court filed findings of fact and conclusions of law. The findings of fact material to this appeal, as numbered by the trial court, are as follows:

7. The oldest three children of the marriage informed the Court in its chambers that they desired to live with their father because their mother was trying to force her religion on them.

8. The relationship between the mother and the two girls has deteriorated to the extent they no longer respected her position and would resist her wishes in every possible way.

9. Because of the relationship among the children, the Court did not wish to divide custody of the children and felt that it was in the best interest of the children that they remain in tact (sic) as a familial unit.

The conclusions of law material to this appeal, as numbered by the trial court, are as follows:

2. That it is in the best interest of the children, to-wit: DEANNA MARIE FETTIG, JACQUELINE J. FETTIG, LESTER ALLEN FETTIG, and DARON J. FETTIG, that STEWART ELDON FETTIG be appointed Managing Conservator and shall have all the rights, privileges, duties and powers of a parent to the exclusion of the other parent subject to the rights, privileges, duties and powers granted to the Possessory Conservator.

3. That it is in the best interest of the children that Rose Marie Fettig be appointed Possessory Conservator of the children.

Appellant's points one and two assert that "the court erred against the great weight and preponderance of the evidence in failing to enter a finding of fact" (1) that Stewart Eldon Fettig so influenced the two girls and (2) so influenced the two girls and oldest boy against Rose Marie Fettig that the children's affections had been alienated against her. In point three appellant asserts that the trial court erred as a matter of law in failing to enter a finding of fact that the appellee so influenced the two girls against Rose Marie Fettig that said children were alienated against her. We find no merit in these contentions. The trial court, in response to appellant's request, filed its findings of fact and conclusions of law. Appellant did not thereafter request further, additional or amended findings as provided for in Tex.R.Civ.P. 298. Appellant therefore waived her right to complain on appeal of the court's failure to enter additional findings of fact or to contend the findings which were entered were not full and complete. Points one through three are overruled. Vanity Fair Properties v. Billingsley, 469 S.W.2d 453, 455 (Tex.Civ.App. San Antonio 1971, writ ref'd n. r. e.); Tidwell v. Lange, 531 S.W.2d 384, 386 (Tex.Civ.App. Waco 1975, no writ); Cortez v. Corsi, 513 S.W.2d 648, 650 (Tex.Civ.App. Corpus Christi 1974, writ ref'd n. r. e.; Lutz v. Lutz, 508 S.W.2d 955, 956 (Tex.Civ.App. Houston (1st Dist.) 1974, no writ).

In points five through seven appellant complains that the appointment of Stewart Eldon Fettig as managing conservator was (5) based upon insufficient evidence, (6) was so against the great weight and preponderance of the evidence as to amount to an abuse of discretion, and (7) was contrary to the undisputed evidence as a matter of law.

Section 14.01 of the Texas Family Code expressly provides that in determining which parent to appoint as managing conservator, the court shall consider the qualifications of the respective parents without regard to the sex of the parent. This section "is to put both parents on an otherwise equal plane in a child custody case, and thus remove a preference for the mother." Adams v. Adams, 519 S.W.2d 502, 503 (Tex.Civ.App. El Paso 1975, no writ); see, Tye v. Tye, 532 S.W.2d 124, 127 (Tex.Civ.App. Corpus Christi 1975, no writ). In determining the matter of managing conservatorship, the welfare and best interest of the children shall always be paramount and the primary consideration of the court. Tex.Fam.Code Ann. § 14.07 provides in part:

(a) The best interest of the child shall always be the primary consideration of the court in determining questions of managing conservatorship, possession, and support of and access to the child....

(b) In determining the best interest of the child, the court shall consider the circumstances of the parents....

In deciding a "no evidence" point, an appellate court must view the evidence in the light most favorable to the court's findings, considering only the evidence and the inferences tending to support the findings, and disregarding all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965)

Upon applying the above-mentioned rules of law to the facts, we are of the opinion that there is sufficient evidence of probative force to support the action of the trial court in appointing Stewart Eldon Fettig as managing conservator.

Stewart Eldon Fettig testified that he felt the children would be better off if he had custody; that the three oldest have problems getting along with their mother; that she has whipped one of them and they do not agree with her religion (Jehovah's Witnesses); that the three oldest children have stated to him that they would prefer living with him; that he was financially able to take care of the four children, look after and educate them; that he has a biweekly take-home pay of $718.84; that Mrs. Fettig would not make a decision and the children would come to him for advice; that it has been up to him to make the important decisions and that none were made by Mrs. Fettig except in his absence; that he believes the children would do what Mrs. Fettig says if treated properly; that the children are good children, in good health, and have not been involved in any serious trouble.

Mrs. Fettig testified she and the girls do not get along very well of late; that she gets along better with the younger boy than the older one; that as children become older, they do not get along as well with their parents as when they are younger; that as children become older, they want more freedom depending on their own ideas; that she has whipped the girls with a belt a time or so; that she recently started an automobile painting shop with a friend near Belton; that at the time of trial they had a few jobs lined up but had not actually collected any money; that throughout the winter she had run a delivery service for working mothers, taking children from school to baby sitters or other places and she had two jobs remaining from that service which would continue through the summer months.

Deanna Marie Fettig testified that she would like to live with her father; that she and her mother do not get along; that they have a difference in religion; that she thought she would be better off and happier in her father's custody.

Jacqueline J. Fettig testified that her dad was a very good father; that she would like to live with him and recommended that he be appointed her managing conservator; that she and her mother cannot get along and disagree regarding her mother's religion; that she would be better off in her father's custody.

In his testimony, Lester Allen Fettig also expressed a preference to live with his father and requested the court to appoint his father as his managing conservator.

Terri Armur, a neighbor, testified that she had known the Fettigs for 19 to 20 years; that she and her husband generally visited the Fettigs three to four times a week; that in her opinion all four children would probably be better off with Mr. Fettig and she recommended that he be appointed their managing conservator; that the children love him deeply; that he is a caring father who is financially able to keep and care for his children better than anyone else; that he knows when to be strict and when not to be. Her husband, Lee Armur, testified he has known the Fettigs six years; that the families have visited frequently; that from being with the Fettig family, seeing them act together and from the treatment they have received from both parents, he would recommend that Mr. Fettig be appointed managing conservator. Appellant's seventh point is overruled.

In disposing of a point of error which asserts factually "insufficient evidence," this court must consider the entire record, weigh all the evidence, and reverse and remand the case only if it is so contrary to the great weight and preponderance of the evidence as to be manifestly unjust and unfair. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). After a review of the entire record, we cannot agree with appellant's contention that the appointment of Mr. Fettig as managing conservator was not supported by factually sufficient evidence or...