Guillott v. Gentle

• Decision Date: 07 May 1971
• Docket Number: No. 4458,4458
• Parties: James Paul GUILLOTT, Appellant, v. Bud GENTLE et ux., Appellees.
• Court: Texas Court of Appeals

Page 521

467 S.W.2d 521

James Paul GUILLOTT, Appellant, v. Bud GENTLE et ux., Appellees.

No. 4458.

Court of Civil Appeals of Texas,

Eastland.

May 7, 1971.

Rehearing Denied May 28, 1971.

Akin, Stanford & Gilliland, John D. Gilliland and Richard A. Moore, Dallas, for appellant.

Gerald E. Stockard, Denton, for appellees.

McCLOUD, Chief Justice.

This is a child custody case which was instituted by appellant, James Paul Guillott, the natural father of Anna Lisa Guillott, a nine year old girl, upon petition for writ of habeas corpus against appellees, Bud Gentle and Maggie Gentle, the maternal grandparents, who asserted custody and control of the child upon the death of the child's mother. The case was tried to the court without a jury, resulting in a judgment denying the natural father's petition. James Paul Guillott, the natural father, has appealed.

The trial court found that appellant was not a fit and proper person to have the custody of his child and concluded that the best interest of Anna Lisa Guillott would be served by awarding the permanent custody and control of the child to appellees. Appellant contends there is no evidence of probative force to support the findings by the trial court that he is an unfit person to have custody of his daughter, or that the interests of the child would best be served by awarding custody to appellees. Alternatively, appellant contends that the evidence is factually insufficient to support the trial court's findings and that such findings are so against the great weight and preponderance of the evidence as to be manifestly unjust and clearly wrong.

Appellant, James Paul Guillott, was formerly married to Sally Ann Guillott. To this union was born Anna Lisa Guillott, the nine year old child whose custody is the object of this suit. Appellees are the parents of the deceased mother, Sally Ann Guillott, and are long time residents of Sanger, Denton County, Texas. Bud Gentle has lived in Sanger all of his 70 years and is presently serving as Chief Deputy Sheriff of Denton County. Maggie Gentle has lived in Sanger for 61 years.

The marriage between appellant and Sally Ann Guillott terminated in divorce during the summer of 1969, and the custody of the child was awarded to Sally Ann Guillott. Sally Ann Guillott died February 18, 1970. Appellant learned of the death of his former wife about a week later when he called appellee, Bud Gentle, by telephone. At that time appellant lived in Shreveport, Louisiana, and he told Bud Gentle he was coming after his daughter. Bud Gentle told appellant he was not going to get her. Following this telephone conversation appellant consulted an attorney and later filed this proceeding for writ of habeas corpus in the trial court.

In Cox v. Young, 405 S.W.2d 430 (Tex.Civ.App., 1966, writ ref. n.r .e.) our Court when faced with a somewhat similar problem stated:

'In child custody cases the welfare of the child is the controlling consideration. 44 Tex.Jur.2d 43, 44. The determination of custody is within the sound and broad discretion of the District Court which will not be disturbed except in a case of clear abuse. Mumma v. Aguirre, 364 S.W.2d 220 (Tex.Sup.Ct.). There is a presumption that the interests of a young child are best served by being in custody of a parent rather than some other person. Mumma v . Aguirre, supra, and upon the death of one of the parents to whom custody has been awarded by a divorce decree, as in the instant case, the custody of the child vests automatically in the other parent. Vernon's Annotated Probate Code, Section 109(a); Knollhoff v. Norris, 152 Tex. 231, 256 S.W.2d 79; Peacock v. Bradshaw, 145 Tex . 68, 194 S.W.2d 551. However, improper conduct of a parent may forfeit his right to custody of his child and a trial court does not abuse its discretion by awarding custody to some other person, (1) who is fit and proper, (2) if it is shown that the parent is not a fit and proper person. Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787 .'

It is not always necessary in child custody cases that the evidence show the natural parent is unfit. Our Supreme Court in Herrera v. Herrera,409 S.W.2d 395, (Tex.Sup.1966) when confronted with such a situation said:

'The legal custody of a minor is in the parents or the surviving parent, Unless there has been a court adjudication awarding the legal custody to a third party. Of course, a court, under certain circumstances such as the voluntary surrender of possession of the child to another coupled with continuance of such possession for a substantial period of time, may terminate the custody rights of the parent when it is in the best interest of the child to do so. Knollhoff v. Norris, supra; Legate v. Legate (87 Tex. 248, 28 S.W. 281) supra; Hendricks v. Curry, (Tex.Sup., 401 S.W.2d 796) supra; Duckworth v. Thompson (Comm'n App.), 37 S.W.2d 731 (1931), for an excellent discussion of this problem.'

In the instant case there has been no court adjudication awarding the legal custody to the maternal grandparents nor has there been a voluntary surrender of possession of the child by the father to appellees coupled with continuance of such possession for a substantial period of time. Thus, it is essential that appellees prove that appellant, the natural father, is unfit. State ex rel. Wood v. Deaton, 93 Tex. 243, 54 S.W. 901 (1900); Garner v. Bowles, 233 S.W. 300 (Tex.Civ.App.1921, writ ref.). The trial court found him to be unfit and we must determine if the evidence supports such finding.

In Cox v. Young, supra, while discussing fitness, we said:

'The material time concerning fitness for child custody is the present. If the parent is presently a suitable person to have custody, the fact that there was a time in the past when the parent would not have been a proper person to have such custody is not controlling. 44 Tex.Jur.2d page 48. Past misconduct or neglect, such as the failure of a divorced father to make child support payments, are factors to be considered when he seeks custody after the death of the mother, but such facts are not of themselves sufficient to show present unfitness. Clements v. Schaeffer, 360 S.W.2d 906 (Tex.Civ.App., no writ history); Pettit v. Engelking, 260 S.W.2d 613 (Tex.Civ.App., n.r.e.). Even a judgment decreeing that a parent is unfit to have custody of his child is not a perpetual adjudication of unfitness.'

What does the record show relative to appellant's present fitness or unfitness? At the time of trial he lived in a large lakefront home with his brother and his brother's wife and children. The house is designed so that it has a three room apartment that connects in such a way that it can all be one big house or a door can be closed to make a separate apartment. Appellant's brother, Paulin Guillott, Jr. rents the house and appellant helps with expenses. Paulin Guillott, Jr., who works as a telegraph operator, and his family had lived in the house for about a year. Appellant and his brother testified that appellant had lived there since October of 1969. Paulin Guillott, Jr. is 34 and his wife, Jo Ann Guillott is 30. They have three children, a boy 13, a daughter 6 and a daughter 4. Paulin Guillott, Jr. testified that appellant could live with him as long as he pleases. Jo Ann Guillott testified that she would be available to take care of Anna Lisa When appellant was working. She stated that she would have a child attending the same grade school that Anna Lisa would be attending and she would be available to take the children to school. Both Paulin Guillott, Jr. and Jo Ann Guillott expressed a willingness to help appellant rear his child.

Appellant is employed at a television station in Shreveport where he had been working for approximately one year. He produces and directs motion pictures and live television video tape, such as newscasts, documentaries and variety shows. At the time of trial he was receiving a salary of $135.00 a week. At times he works after hours in a related business and receives an additional $100.00 to $200.00 a month. Appellant admitted that he had had 'tremendous' financial difficulties in the past; but, testified he was now making some headway in that regard. He just finished paying $500.00 in back taxes incurred during his marriage.

Concerning the unfitness of appellant, the trial court in its findings of fact found as follows:

'(6) I find that for a period beginning with the marriage of Sally Ann Guillott and Petitioner James Paul Guillott, that James Paul Guillott has not been able to provide the necessities of life for his family, and that during all of this time Bud Gentle has paid their grocery bill, paid their debts and provided the necessary things of life for Sally Ann Guillott and Anna Lisa Guillott, including in excess of $3,000.00 while they were in Atlanta, Georgia, and an additional $3500.00 to $4,000.00 while they were in Sanger, and that beginning with a time of more than a year prior to the death of Sally Ann Guillott, that Petitioner, James Paul Guillott, deserted his family, contributed nothing to their support for more than a year's period of time, and that the only payments that he made were under compulsion by the court in a divorce action.

(7) I further find that Petitioner, James Paul Guillott, was notified in October of 1969, that Sally Ann Guillott, was confined to the hospital and could not live . That Sally Ann Guillott talked with him by telephone and requested that he help support Sally Ann Guillott and the family, and that James Paul Guillott failed and refused to provide any support or to come to see his daughter or assist with her in any manner. I further find that though employed, in Shreveport, Louisiana, that from February of 1970 to the time of the trial on the 30th of July, 1970, that even though employed, James Paul Guillott had contributed to Anna Lisa Guillott the sum of $1 and some roses for her birthday.'

'(9) I find that Petitioner, James Paul Guillott, is unstable in his...