Grider v. Noonan

• Decision Date: 27 February 1969
• Docket Number: No. 359,359
• Citation: 438 S.W.2d 631
• Parties: Wesley GRIDER et ux., Appellants, v. James Kennington NOONAN et ux., Appellees. . Corpus Christi
• Court: Texas Court of Appeals

Page 631

438 S.W.2d 631

Wesley GRIDER et ux., Appellants, v. James Kennington NOONAN et ux., Appellees.

No. 359.

Court of Civil Appeals of Texas Corpus Christi.

Feb. 27, 1969.

Paul Hill, Corpus Christi, for appellants .

Fischer, Wood, Burney & Nesbitt, Scott T. Cook, Corpus Christi, for appellees.

OPINION

SHARPE, Justice.

Appellants instituted this action by filing a 'Motion for Bill of Review' on October 10, 1966, to set aside two judgments of the Court of Domestic Relations for Nueces County, Texas, and for custody of the minor child, Linda Nell Colgan. The first judgment was rendered on April 2, 1964, and declared Linda to be a dependent and neglected child and placed her care and custody with appellees. The second judgment was rendered on February 12, 1965, and granted adoption of Linda by appellees.

The appellants are Imogene Colgan Grider and her third husband, Wesley Grider. The latter is neither the father or legal guardian of the minor child and does not contend that he is entitled to her custody except as the present husband of Imogene Colgan Grider. Appellant Imogene Colgan Grider is the natural mother of the child and the real party appellant as to the issues here involved. We will therefore refer to Imogene Colgan Grider as 'appellant'. Any reference to Wesley Grider will be by name. The appellees are James Kennington Noonan and wife Thena Carson Noonan. They have had the custody of Linda, who under the adoption decree is named Linda Kay Noonan, since March 1964.

Appellant did not have notice of either of the above-mentioned proceedings or judgments affecting her daughter Linda. In April 1964, when the judgment declaring Linda a dependent and neglected child was rendered, appellant was not a resident of Nueces County and her whereabouts were unknown to her mother and other persons who would ordinarily know the same. When the adoption case was heard on February 12, 1965, consent for adoption was given by the same court which had rendered the first judgment of April 2, 1964. On the non-jury trial of the instant case the lower court properly imposed the burden of proof on the appellees, and entered a separate preliminary order to that effect. See Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965); on remand 394 S.W.2d 552 (Tex.Civ.App., 1965); Gunn v. Cavanaugh, 391 S.W.2d 723 (Tex.Sup.Ct., 1965); DeWitt v. Brooks, 143 Tex. 122, 182 S.W.2d 687 (1944). The trial court denied all relief sought by appellants and rendered judgment in favor of appellees. Among other things the trial court concluded in substance that appellant in July 1963, had abandoned her child, Linda; that Linda was abandoned when the judgment of April 2, 1964, declaring her to be a dependent and neglected child was rendered; that the child had been duly adopted by appellees; and that her custody should remain with them. The complete findings of fact and conclusions of law made by the trial court are as follows:

'FINDINGS OF FACT

'(1) That in July, 1963, Imogene Colgan Grider, the natural mother of the minor child, Linda Nell Colgan, now Linda Kay Noonan, left and deserted such child with the intention of permanently abandoning such child.

(2) That the minor child, Linda Nell Colgan, now Linda Kay Noonan, remained abandoned by Imogene Colgan Grider until and after the month of April, 1964.

(3) That Imogene Colgan Grider was divorced from Richard Colgan, the natural father of the minor child, Linda Nell Colgan, now Linda Kay Noonan, in 1961, and thereafter never contributed to the support of such child or sought or had custody of the child and is not a party to these proceedings.

(4) That it is for the best interests and welfare of the minor child, Linda Nell Colgan, now Linda Kay Noonan, that her care, custody and control remain in and be awarded to the Respondents, James Kennington Noonan and wife, Thena Carson Noonan.

(5) That Respondents, James Kennington Noonan and wife, Thena Carson Noonan, are fit and proper persons to have the custody, care and control of the minor child, Linda Nell Colgan, now Linda Kay Noonan.'

'CONCLUSIONS OF LAW'

'(1) That the proceedings in Cause No. 82,186 and Juv. No. 3988, styled In re: Linda Nell Colgan, a Minor, in the Court of Domestic Relations of Nueces County, Texas, were regular and were carried on in the manner required by law and sufficient facts existed at the time of the entry of the order to authorize entry of the judgment of dependency and such judgment is valid and of full force and effect.

(2) That the proceedings in Cause No. 84,776 and Juv. No. 4167, styled In re: Adoption of Linda Nell Colgan, a Minor, in the Court of Domestic Relations of Nueces County, Texas, were regular and were carried on in the manner required by law and the Decree of Adoption entered therein is valid and of full force and effect.'

Appellant asserts twelve points of error which have been briefed in five groups. Appellees have answered appellant's contentions by five reply points. The contentions so made by the parties will be considered in the order briefed.

Appellant's first three points contend in substance (1) that the trial court erred in finding that appellant left and deserted her child Linda in July 1963, with the intention of permanently abandoning such child; and (2) that Linda remained abandoned by appellant until after the month of April, 1964; and (3) that the trial court erred in refusing appellant's requested finding that appellant was unable to ascertain the whereabouts of her minor daughter Linda from December 1963 until September 1966. Appellees' first reply point asserts that the findings of the trial court concerning abandonment and its continuance are supported by evidence . The contentions made by appellant under her points one and two are 'no evidence' or legal insufficiency points and we consider them under well settled rules that we must view the evidence in the light most favorable to the findings and to appellees, and indulge every inference which may properly be drawn from this evidence while disregarding all contradictory evidence.

The record reflects that appellant has been married two times prior to her present marriage with Wesley Grider, and is the natural mother of three children, whose names and ages at the time of the trial in 1967 were as follows: Toni White, age 14, born to the first marriage; Richy Colgan, age 11, and Linda Kay Colgan, age 8, born during the second marriage. Appellant was divorced from her two previous husbands, and had the legal custody of all three children. The actual custody of the second child, Richy Colgan, had been voluntarily surrendered to the boy's father Richard Colgan, of Denver, Colorado. In July 1963 appellant resided in Denver, Colorado with Toni and Linda, then ten and four years of age, respectively. Appellant's mother, Mrs. Arvenia Lane, also resided in Denver at that time but lived separately from appellant with a family for which she did housekeeping work. Mrs. Lane testified in substance that on a Thursday in July 1963, she went to visit her daughter and the two children at appellant's apartment in Denver. Mrs. Lane agreed to stay with the children that day and, along with another lady who was a baby sitter, took them to a park. When Mrs. Lane and the others returned to appellant's apartment, appellant was gone. Appellant did not tell Mrs. Lane that she was leaving town, made no arrangements for the care of her two daughters, and did not leave any money for their support. When appellant failed to return, Mrs. Lane hired a baby sitter to care for the children, paying her $20.00 per week. In September 1963 Mrs. Lane solicited the assistance of her brother, Mr. Reggie Logan, who lived in Hereford, Texas. Arrangements were made to send the two girls by bus from Denver, Colorado to Hereford, Texas. Toni, the oldest girl, was then placed in the care of a friend named Stanley Fry. During the first part of October 1963, Linda, the youngest child, was sent to Corpus Christi, Texas to live with Mrs. Lane's half-sister and brother-in-law, Mr. and Mrs. Ralph Carter. In August 1964, Mr. and Mrs. Carter arranged to take Toni to the South Texas Children's Home in Beeville, Texas. There application was made, with the assistance of Mrs. Arvenia Lane, for admission of Toni into the Home. The application contained a statement that appellant had left the child over a year previous to August 1964 and had not been heard from since. This was confirmed to be a true statement by Mrs. Lane and Mr. and Mrs. Carter. Under a written agreement, the placement of Toni in the Home was to be permanent. According to Mrs. Lane's testimony, both Toni and Linda were under the same circumstances with respect to the absence of their mother, the appellant.

The testimony of Mr. and Mrs. Carter reflects that during December 1963 they, along with Linda, traveled to Denver, Colorado and made an effort to locate appellant. They found, through inquiry at the Police Department, where appellant was temporarily residing in that city and left a message for appellant to call them. The Carters also contacted Linda's father, Richard Colgan, while in Denver. Colgan did not know the whereabouts of appellant. Mrs. Carter testified that Colgan talked to her on the telephone and took the position in substance that he had no interest in Linda's custody. The Carters and Linda then returned to Corpus Christi. They contacted Dr. Colson, director of the Baptist City Missions, about placing Linda for adoption. Dr. Colson arranged for the Carters to meet appellees. In March 1964, Linda was allowed to live with Mr. and Mrs. Noonan, the appellees. Thereafter, appellees employed an attorney to advise them. The proceeding to declare Linda a dependent and neglected child was then instituted. Appellees did not have any information concerning the whereabouts of appellant, and she was not served with process. The Court of Domestic Relations of Nueces County, Texas, on ...