Hamer v. Hamer, 11670.

• Decision Date: 07 December 1944
• Docket Number: No. 11670.,11670.
• Citation: 184 S.W.2d 492
• Parties: HAMER v. HAMER.
• Court: Texas Court of Appeals

184 S.W.2d 492

HAMER v. HAMER.

No. 11670.

Court of Civil Appeals of Texas. Galveston.

December 7, 1944.

Rehearing Denied January 4, 1945.

Appeal from District Court, Harris County; W. W. Moore, Judge.

Suit by Joy Hamer against Billy Hamer in which both parties sought a divorce, which was granted on the wife's application. From so much of the judgment as divided community property and fixed the custody of a child, the wife appeals.

Affirmed.

Allen, Helm & Jones, of Houston (J. Edwin Smith, of Houston, of counsel), for appellant.

H. E. Bell, of Houston, for appellee.

GRAVES, Justice.

This appeal, in a divorce suit, in which both parties had sought such a decree, is from such parts only of a judgment of the 11th District Court of Harris County divorcing the parties on the wife's application, dividing their community property, and fixing the custody of their sole child, as disposed of the property and the custody issues, and not from the part thereof which so decreed the divorce to the wife; that is, while each separately sought a divorce, neither has complained of the trial court's final action upon that feature here.

So much of the challenged decree as affected the custody of the child, a little girl nearly two years old, was, in substance, this:

"The court is of the further opinion that the plaintiff, Joy Hamer, is a fit and proper person to have the custody of the minor child, Beverly Ann Hamer, a daughter born of the marriage, now of the approximate age of twenty-one months. The court is of the further opinion that the defendant, Billy Hamer, is a fit and proper person to have the custody of the said minor child; and it appearing to the court that the defendant, Billy Hamer, may shortly be inducted into the military services of the United States, and that his father and mother, Mr. and Mrs. Frank Hamer, of Austin, Texas, have agreed in open court to assist the said Billy Hamer in all necessary ways in caring for the said Beverly Ann Hamer; the court finds that the welfare of said child will be promoted by such assistance, and that the said Mr. and Mrs. Frank Hamer are fit and proper persons for such purpose. The court finds further that, should the defendant, Billy Hamer, enter the military services of the United States, he should provide the regular military allotment for a child, and that while the child is in the custody of the plaintiff, Joy Hamer, this allotment should be made payable to her for the use and benefit of said minor child; and that, while the said minor child is in the custody of the said Billy Hamer, and is left with his said father and mother, such military allotment should be made payable to Mr. and Mrs. Frank Hamer, or either of them, for the use and benefit of said minor child.

"It is, therefor, ordered, adjudged, and decreed that the plaintiff, Joy Hamer, be and she is hereby divorced from the defendant Billy Hamer, and that the bonds of matrimony heretofore existing between the plaintiff, Joy Hamer, and the defendant, Billy Hamer, be and are dissolved and annulled.

"It is further ordered, adjudged and decreed that the custody and education of the minor child, Beverly Ann Hamer, be awarded to plaintiff, Joy Hamer, for a period of six months out of the year, and that the custody and education of said minor child be awarded to defendant, Billy Hamer, for a period of six months out of the year, the custody and education to be in the father, Billy Hamer, from the first day of June A.D. 1944, and to so continue through the last day of November, A.D.1944, and for the same months during each succeeding year; and it is decreed that from the first day of December, A.D.1944, to and including the last day of May, A.D.1945, the custody and education of said minor shall be in the plaintiff and mother, Joy Hamer, and that she shall have such custody and education of said child for the same months during each succeeding year; the court, however, hereby retaining jurisdiction over the parties and said child to modify or change such custody at any time that changed conditions, or the good of said child, shall require it, and the court now suggests that when said child reaches the age of seven years it is probable that it will be proper to give her custody and education to one of the parents for nine months and the other three months. It is decreed that changes in these orders for custody and education can and may be made by this court at any time after proper and due notice to all parties to appear for a hearing before this court, should the court decide after such notice and hearing that changed conditions necessitate a change of these custody orders for the best interests of the child.

"It is decreed that during the period that one of the parents does not have the custody of such child that such parent shall have the right to visit and see such child at all reasonable times and during reasonable behavior.

"It is further ordered, adjudged and decreed by this court that said child shall not be removed from this state except for short visits to relatives, and should either of parents of the said Beverly Ann Hamer remove her beyond the borders of this state during the time such parent has her custody and education she shall by such parent be returned to this state prior to the time when the custody and education is to begin in said other parent.

"It is further ordered, adjudged and decreed that, should the said Billy Hamer be called into the military services of the United States, he shall provide for the regular military allotment for said minor child; that during the months that such child is assigned to the custody and education of the said Billy Hamer, such allotment shall be made to Mr. and Mrs. Frank Hamer, or either of them, for the use and benefit of said minor child, and that during the months said minor child is in the custody of the mother such military allotment shall be made to her for the use and benefit of said child. At the expiration of the military service of said Billy Hamer, and upon proper notice to all parties, the court will make such further orders for the support, maintenance, and education of said child as the circumstances at the time will justify, while it is in the custody of the mother, Joy Hamer."

Appellant's points upon the appeal are these:

"First. The order of the trial court concerning the custody of the daughter of tender years was contrary to the law and the evidence of this case.

"Second. The order of the trial court on the division of the community...