Glasgow v. Hurley, 15586

• Decision Date: 19 February 1960
• Docket Number: No. 15586,15586
• Citation: 333 S.W.2d 658
• Parties: Geraldine Hurley GLASGOW et vir, Appellants, v. Charles W. HURLEY, Appellee.
• Court: Texas Court of Appeals

Page 658

333 S.W.2d 658

Geraldine Hurley GLASGOW et vir, Appellants, v. Charles W. HURLEY, Appellee.

No. 15586.

Court of Civil Appeals of Texas, Dallas.

Feb. 19, 1960.

Rehearing Denied March 18, 1960.

Allen Melton and George M. Elliott, Dallas, for appellants.

James F. McCarthy, Dallas, for appellee.

DIXON, Chief Justice.

On June 10, 1958 in Juvenile Court, Dallas County, Texas, appellee Charles W. Hurley, complaining of appellants Geraldine Hurley Glasgow and her husband, James E. Glasgow, filed what he designates as a 'motion for modification of the court's order and reduction of child support.' In his motion appellee says that the order he seeks to modify is one of October 11, 1956 by Judge Sarah T. Hughes, then acting as Juvenile Judge. He makes no mention of an order regarding custody by Judge Dallas Blankenship of April 11, 1958, only one month prior to the filing of appellee's motion in this case.

On September 24, 1958 the court rendered judgment sustaining appellee's motion in part, the effect of which judgment, as we view it, was to change the custody judgment rendered by Judge Blankenship on April 11, 1958.

Charles W. Hurley and Geraldine Hurley were formerly husband and wife. During their marriage four children were born to them. The parents were divorced in 1954. At the time of the divorce the four children were awarded to the mother. Since that time custody of the oldest boy has been changed to the father. This appeal involves only two of the boys, twins, who were about eleven years old at the time of the trial.

On September 15, 1955 the mother married James E. Glasgow. The father has not remarried.

In earlier custody orders appellee had been allowed visitation privileges with the two boys from 9:00 o'clock a.m. to 9:00 o'clock p.m. on the first Saturday of each month, and two weeks each year during summer vacation.

In his pleading filed June 10, 1958 appellee sought to have his so-called visitation privileges extended so as to include 7:00 p.m. on Friday until 9:00 p.m. on Sunday of each week, also to include one week during each Christmas vacation, and to include two months during each summer, to-wit: July and August of each year. On August 5, 1958 the court rendered a judgment, signed September 24, 1958, which did not grant appellee's motion in full but did greatly modify the previous order of the court in regard to visitation and custody. Among many changes the new order provides that appellee, instead of having the custody of the children for two weeks each summer, shall have them for four weeks; and instead of having part of one Saturday each month, he shall have them over the week end once each month.

Appellants' first and second points complain of the alleged action of the court in overruling their motion for continuance. They allege that the Judge of the Juvenile Court disqualified himself and designated Judge Dallas Blankenship to try the case, but when they went to Judge Blankenship's court they found another Judge sitting for Judge Blankenship. Appellants then orally asked for a postponement until Judge Blankenship himself could try the case, since he had heard a great deal of testimony at a previous custody hearing in April 1958.

Appellants' first and second points are without merit for three reasons. First: the grounds urged are not sufficient to require a continuance. Second: the record does not contain any order or evidence showing that the Juvenile Judge, in sending the case to the 101st District Court, specified that Judge Blankenship personally should try the case. Third: appellants' counsel complained orally about being put to trial under the circumstances, but no written motion for continuance was filed. Rule 251, Texas Rules of Civil Procedure. Hobbs v. Grant, Tex.Civ.App., 314 S.W.2d 351; Starks v. Williams, Tex.Civ.App., 282 S.W.2d 898. Appellants' first and second points are overruled.

In their third, fourth, fifth and sixth points appellants contend that all custody questions involving conditions prior to April 11, 1958 are res judicata because of a custody judgment rendered on that date by Judge Blankenship in the 101st District Court. Judge Blankenship in passing upon an application of appellee Charles W. Hurley, refused to change a previous order awarding custody of the twins to appellants. Appellants further contend that since appellee has failed to show a change in conditions since April 11, 1958 it was error to render the judgment of September 24, 1958, here appealed from, which amounts to a change in the custody of the twins.

In reply to appellants' contention appellee argues (1) that in his motion he sought, and the court's judgment of September 24, 1958 allowed merely a change in visitation privileges, not a change in custody; and (2) that Judge Blankenship's order of April 11, 1958 was entered in a hearing on motion to quash a temporary injunction and could not have involved the question of custody because appellee's pleadings in that case did not ask for a change in custody. We are unable to agree with appellee that his pleadings and the judgment here appealed from involve only a mere change in visitation privileges and not a change in custody. We shall not attempt to point out the exact dividing line distinguishing a change in visitation from a change in custody. But we have no doubt that this case involves a change in custody and not a mere change in visitation privileges regardless less of the terminology used in appellee's pleadings and in the judgment. In his pleadings appellee asked that instead of having the boys in his care and custody only part of one day each month and two weeks each summer, the order the changed so that he could have the boys in his care and custody each week from 7:00 o'clock p.m. on Friday until 9:00 o'clock p.m. on Sunday, and that he have them for a week every year at Christmas time and for two months every summer. Though appellee did not obtain all that he pled for, the judgment did grant him a substantial modification of the last custody order. Call it by what name you will the substance and effect of appellee's pleading and of the judgment is to modify custody.

Neither can we agree with appellee when he says that Judge Blankenship's judgment of April 11, 1958 did not adjudicate the question of custody. The record before us does not contain a copy of the pleadings in the case tried by Judge Blankenship, so we cannot pass on the adequacy of the pleading to raise the issue of custody. But the record does contain a copy of Judge Blankenship's judgment. We quote material parts of it:

'* * * whereupon the court proceeded to hear the pleadings, evidence and argument of counsel, and after hearing the evidence presented by Plaintiff, and prior to the Defendants presenting any of their evidence in defense, the Court became of the opinion and so finds that there is insufficient evidence, before the court to require a change of custody of the minor children, Michael Bartholomew Hurley and Timothy Mitchell Jurley, and thus finds the Defendant's motion to dissolve the Temporary Restraining Order, heretofore granted, is proper and in order and should be sustained.

'It Is Therefore, Ordered, Adjudged and Decreed by this court that the Defendant's motion to dissolve the Temporary Restraining Order, issued by this court on the 5th day of April, 1958, be, and the same is hereby sustained, and the Plaintiff,...