Holloway v. Allison, 694
| Decision Date | 03 May 1973 |
| Docket Number | No. 694,694 |
| Citation | 494 S.W.2d 612 |
| Parties | Pat S. HOLLOWAY, Appellant, v. Linda Wickett ALLISON, Appellee. |
| Court | Texas Court of Appeals |
Pat S. Holloway, Dallas, for appellant.
Cecil L. Woodgate of Andress, Woodgate & Lodewick, Dallas, for appellee.
This is a suit to change custody filed by the appellant, Pat S. Holloway. It was tried before the court without a jury. The court rendered judgment denying the petition for change of custody. Thereafter appellant Holloway requested findings of fact and conclusions of law and in response thereto the court filed seventeen detailed findings of fact, concluding as a matter of law that Holloway had failed to establish facts showing any material change sufficient to authorize the court, in its discretion, to change custody of the minor children.
These findings of fact were not challenged by Holloway either in the court below or by any point in his brief on file in this court.
The appellant and appellee obtained a judgment of divorce on June 5, 1969, and the custody of the children here involved were awarded to the appellee.
Appellant's appeal is predicated upon one point of error. Under this point he argues (Emphasis theirs.) He also states in his brief that 'this appeal is simply that there were established sufficient changes of circumstances to Authorize (not require) the trial court to award the change of custody.' (Emphasis theirs.) Appellant in his brief also states that he 'does not contend the evidence is such that it would have been error for the trial court to determine, in the exercise of its discretionary judgment, that a change of custody would not be in the best interests of the child.' It is appellant's contention 'that the evidence is such that it was error for the court to conclude that it did not have the power and authority to award a change of custody in the exercise of its discretionary authority.'
Appellant further argues that the changes of conditions which he has shown constitute such changes as 'to require the trial court to make a determination of whether or not the best interests of the child would be served by awarding a change of custody.'
The difference between a first award of custody and change of custody becomes important in determining what legal principles should determine the court's decision. Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787, 790 (1955).
A person seeking to change the custody of children has the burden to prove that conditions have so changed to leave the custody of the child or children as previously adjudicated would be injurious to the welfare of the child and requires that such custody be changed. Lewis v. Cushing, 444 S.W.2d 815, 818 (Tex.Civ.App., Beaumont, 1969, n.w.h.); Heiskell v. Heiskell,412 S.W.2d 774, 776 (Tex.Civ.App., Amarillo, 1967, n.w.h.); Short v. Short,163 Tex. 287, 354 S.W.2d 933 (1962); Paynter v. Janca, 331 S.W.2d 814 (Tex.Civ.App., San Antonio, 1960, n.w.h.); 20 Tex.Jur.2d sec. 370, p. 691.
Although a change of conditions since the original award of custody is necessary in order to secure a change of custody, the fact that there has been a change does not necessarily compel the court to make a change of custody. We recognize the well-settled rule of law that in modifying a custody judgment the trial court should be governed by what will be to the best interest and welfare of the minor children, but it is equally as well settled that such modification must be based upon changed conditions. Pearson v. Pearson, 195 S.W.2d 188, 193 (Tex.Civ.App., San Antonio, 1946, writ ref., n.r.e.). Therefore, the trial court would reach the question of whether or not the best interest of the minor children would be served by a change of custody, only upon appellant establishing by legal and competent evidence that there were materially changed conditions as to warrant, authorize or require any change of custody . Paynter v. Janca, supra. It was appellant's burden to offer proof and secure an affirmative finding that conditions have so changed since the prior adjudication as to require a change of custody. Pearson v. Pearson, supra. The trial court concluded, as a matter of law, that appellant failed to show any material change sufficient to authorize the court, in its discretion, to change custody of the minor children. The trial court's legal conclusion that appellant failed to show by legal and competent evidence such change of conditions as to authorize a change of custody, certainly then would amount to a conclusion that the evidence was not such as to require a change of custody. Hence, we consider this to be the effect of the court's legal conclusion and judgment. The court, in exercise of a sound discretion, must decide for itself whether the change warrants, authorizes or requires a change of custody. Simmons v. Hitchcock, 283 S.W.2d 84 (Tex.Civ.App., El Paso, 1955, n.w.h.). Thus, the fact that there has been some change in conditions and that the parent seeking a change of...
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Waters v. Waters, 721
...the appellate court must consider only the evidence favorable to the findings and reject all evidence to the contrary. Holloway v. Allison, 494 S.W.2d 612 (Tex.Civ.App., Tyler, 1973, n.w.h.); Curtis v. Curtis, supra, and cases cited therein; Holley v. Painters Local Union No. 318, 376 S.W.2......
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