Hicks v. Brooks
| Decision Date | 20 December 1973 |
| Docket Number | No. 743,743 |
| Citation | 504 S.W.2d 942 |
| Parties | Annie HICKS and L. M. Hicks, Appellants, v. Emory Willie BROOKS and Lillie Mae Brooks, Appellees. |
| Court | Texas Court of Appeals |
Ruth Rayner, Dallas, for Annie Hicks.
C. B. Bunkley, Jr., Dallas, for appellees.
This is an appeal from a judgment declaring a child to be dependent and neglected under the provisions of Article 2330 et seq., Vernon's Ann.Civ.Texas Statutes. Appellees, Emory Willie Brooks and wife, Lillie Mae Brooks, instituted the suit against appellant, Annie Hicks and husband, L. M. Hicks, in the Juvenile Court of Dallas County, Texas, alleging that Sandra Lavern Hicks, the minor child of appellants, was dependent and neglected in that the child was destitute and did not have proper parental care. After a trial without a jury, the trial court entered judgment declaring the child, Sandra Lavern Hicks, age 10, to be a dependent and neglected child and awarding custody to appellees, Emory Willie Brooks and wife, Lillie Mae Brooks. Appellants timely filed a motion for a new trial, but failed to obtain a ruling thereon, and as a result, the motion was overruled by operation of law. Thereafter, appellants duly perfected this appeal.
The record is before us without a statement of facts. No findings of fact or conclusions of law were requested or filed.
By their first point of error, appellants urge that the trial court erred as a matter of law in declaring the child to be dependent and neglected because they say that the sworn pleadings filed by appellees show that the child was not, in fact, dependent and neglected. Appellants construe appellees' petition as alleging that at the time the suit was filed the child was in the possession of appellees and was being supported and maintained by the appellees . They therefore argue that the child was not destitute or dependent upon the public for support and could not, as a matter of law, have been a dependent and neglected child under the holding of Henricks v. Curry, 401 S.W.2d 796 (Tex.1966). As we view the record, appellants' contention is untenable. Appellees alleged in their original petition that the child had lived in their home and had been supported by them since she was two months of age. They further alleged that shortly before they filed suit, appellant, Annie Hicks, forcibly took the child from the appellees and carried the child to her home. The petition was filed on July 6, 1972. The record shows that the case did not go to trial until October 10, 1972. Thus, at the time of the trial the child had been living in appellants' home for approximately three months. While it may be true that the child may not have been dependent and neglected while she was in the care and custody of appellees and while she was being maintained by them, the issue before the court at the time of trial was whether the child was dependent and neglected during the time she was in the custody of appellants. We fail to find anything in the pleadings indicating that the child was being maintained by appellees, either at the time suit was filed or at the time of trial . As we view the record, the judgment is amply supported by the pleadings. In the absence of a statement of facts, we do not know what constituted the evidence, but in as much as the court's judgment recites that evidence was heard, it must be presumed that the evidence was sufficient to show that the child was, in fact, dependent and neglected. Mays v. Pierce, 154 Tex. 489, 281 S.W.2d 79 (1955); Taylor v. American Emery Wheel Works, 480 S.W.2d 26 (Tex.Civ.App., Corpus Christi, 1972, n.w.h.).
By their second point of error, appellants contend that the court erred in depriving them of the custody of their minor child because the court failed to find and recite in the judgment that appellants were unfit to have the custody of the child. The point is without merit and must be overruled.
Since appellants failed to request findings of fact and conclusions of law, they cannot now be heard to complain of the matter. Rule 298 and 299, Texas Rules of Civil Procedure; Century Indemnity Co. v. First National Bank of Longview 272 S.W.2d 150 (Tex.Civ.App., Texarkana, 1954, n.w.h.). We are not ware of any authority and have been cited none requiring the court in a case of this kind to find and recite in the judgment that the parents were found to be...
To continue reading
Request your trial
-
White v. Wah, 01-89-00257-CV
..."good cause." Scheffer v. Chron, 560 S.W.2d 419, 420 (Tex.Civ.App.--Beaumont 1977, writ ref'd n.r.e.); Hicks v. Brooks, 504 S.W.2d 942, 945 (Tex.Civ.App.--Tyler 1973, writ ref'd n.r.e.). Appellant has not shown that good cause existed to set aside appellees' motions for summary judgment. An......
-
In re VSDH Vaquero Venture, Ltd.
...decisions or the manner in which it tried its case is not a valid basis for granting a new trial. See Hicks v. Brooks, 504 S.W.2d 942, 945 (Tex. Civ. App.—Tyler 1973, writ ref'd n.r.e.) (motion for new trial is not a vehicle to try a case over or differently in the absence of trial error). ......
-
Tees v. Tees, 16821
...evidence that Mrs. Tees did not raise the question until after the jury had returned an adverse verdict. In Hicks v. Brooks, 504 S.W.2d 942 (Tex.Civ.App.1974, writ ref. n.r.e.), the court 'It is well settled that a court of equity will not set aside a final judgment when the failure to have......