Y., In re

• Citation: 516 S.W.2d 199
• Decision Date: 31 October 1974
• Docket Number: No. 890,890
• Parties: In re Y.
• Court: Texas Court of Appeals

Page 199

516 S.W.2d 199

In re Y.

No. 890.

Court of Civil Appeals of Texas Corpus Christi.

Oct. 31, 1974.

Rehearing Denied Nov. 27, 1974.

L. H. Warburton, Jr., Perkins, Davis, Oden & Warburton, Alice, for appellant.

Nelson R. Sharpe, Glusing & Sharpe, Kingsville, for appellee.

OPINION

NYE, Chief Justice.

This is a child custody case. One of the parties has filed a motion requesting the Court to identify the parties by fictitious names citing Section 11.19(d), Family Code, V.T.C.A. The Court is of the opinion that the best interests of the parties and the child will be served by the granting of the motion. Therefore, the names and places are fictitious or general.

The father appellee brought suit for modification of a divorce decree seeking to change the custody of his three (3) year old son from the mother to himself. The mother appellant answered with a general denial. The case was tried before a jury which found in favor of the father that a material change of conditions had occurred and that the best interests of the child required a change of custody to the father. The mother filed a motion for judgment non obstante veredicto, a motion to disregard the special issues and a motion for new trial. All were overruled by the trial court. Judgment was entered conforming to the jury verdict. The mother appeals from the entry of the trial court's judgment.

In a suit such as this, seeking a change of custody, the non-custodian parent has the burden of showing that a material change of conditions concerning the custodian parent has occurred, before a court of competent jurisdiction can change the custody of a minor child. Our first inquiry must be whether there is evidence of a material change of conditions. This is necessary to test the trial court's jurisdiction to decide whether or not a change of custody is warranted. Bukovich v. Bukovich, 399 S.W.2d 528 (Tex.Sup.1966). The non-custodian parent (the father in this case) must show that a material change of conditions had taken place since the entry of the decree in order to escape the bar of res judicata of the prior decree. Knowles v. Grimes, 437 S.W.2d 816 (Tex.Sup.1969). With these basic rules in mind, we review the pertinent evidence.

The parties were married in October, 1969. The child was born as issue of that marriage in May, 1970. Following the entry of the divorce decree, the mother was employed by a large bank in Corpus Christi in the trust department. She had moved in with her parents who lived in Kingsville prior to the granting of the divorce. During a short period of time following the divorce, the mother commuted back and forth between Kingsville and Corpus Christi. The minor child was kept in a day care center during the day and cared for by the appellant's mother and father on other occasions. Approximately four (4) months later, the mother changed jobs and began working for another bank in a small town, where she worked approximately two months. In the latter part of 1971, she began working at the Naval Air Station in Kingsville, a job she presently retains. Shortly after she started working at the Naval Air Station, the mother moved out of her parents' home and moved into and shared a home with another divorcee and her child. She and the child lived with them for six months. From there, the mother moved into a mobile home where she resided for another six month period. During this time, she again left her son at the day care center during working hours. After that, she moved into an apartment in Kingsville where she continued to reside until the time of the trial. The mother remarried shortly after the father filed this suit for change of custody.

The record disclosed several acts of moral misconduct. A short time after her divorce from the father, the mother became involved with a doctor from the Naval Air Station resulting in her pregnancy and the subsequent abortion in an out of state hospital in July of 1971. The record disclosed photographs showing the mother and a man posing in bed in an apparent state of undress. The pictures were admittedly taken at some time after the date of the divorce in April of 1971, and prior to the mother's remarriage shortly before the trial of this case. After the divorce while the mother resided at the trailer park, there was another incident involving the mother and an unidentified man. The father came to the trailer park to pick up his child for a weekend visit. He found the mother, dressed only in a nightgown, entertaining a male friend. The minor child was yelling for his mother to let him out of the bathroom. The father picked up the child. Later, he noticed the unidentified man leaving the mobile home by the back door. The mother admitted that there were occasions when she allowed a male friend to remain in her apartment all night. She testified generally that she had not exposed the child to any immoral circumstances and that the child had never seen her romantically with any man as there was no need of exposing him to this as her mother lives in the same town and she could leave the child with her parents when she had a date.

The appellee father at the time of the divorce lived with his mother and worked as a car salesman. Subsequent to the divorce, he went into business for himself in a night club or dance hall which subsequently failed. In June of 1973, the father remarried and began living on his new father-in-law's ranch. He ran the ranch and in return, received $600.00 per month, and was furnished living quarters by his inlaws. His present wife is a school teacher.

The father brought this suit in November of 1973 for change of custody of the minor child from the mother to himself. The father alleged a change of conditions existed and that the best interest of the child would be served by a change of custody. The jury found that a material change of conditions had occurred and that the best interests of the child required a change of custody to the father. In this connection, the jury was properly instructed as follows:

'You are instructed that not every change in conditions justifies the modification of a former judgment of divorce awarding the custody of a minor child. Such changed condition, if any, must be such as to affect the welfare and best interest of the child and be of such nature that to leave the custody of the child as previously adjudicated would be injurious to the welfare and best interest of the child so as to require that such custody be changed.'

The trial court entered judgment conforming to the jury's verdict.

The mother's first point of error is that the trial court erred in entering a judgment changing custody of the minor child as there was no evidence of any material and substantial change of conditions affecting the best interest of such child. The mother contends that before a court of competent jurisdiction can change the custody of a minor, the non-custodian parent has the burden of showing that a material change of condition of the custodian parent has occurred. To this, we agree. The V.A.C.S., Family Code § 14.08, provides that:

(a) Any party affected by an order of the court providing for managing conservatorship or support of a child, or setting the terms and conditions for possession of or access to a child, may file a motion requesting the court to modify its former order. The motion shall allege that the circumstances of the child have materially and substantially changed since the entry of the order sought to be modified, set forth the alleged circumstances, and be sworn to by the party seeking modification.

The mother contends that the change of conditions alleged and proved were primarily that of the non-custodian parent, the father, and not of herself. In such a case, she argues, the trial court had no jurisdiction to determine the best interests of the child as to custody. It is true that the father introduced evidence of his remarriage, his new job of managing a ranch, his improved financial conditions, and his free housing, but because the father was the non-custodian parent, these changes are conditions that would affect the welfare of the child only and only if a change of custody is warranted. The prospective improvement in the conditions of the non-custodian parent have no material bearing on the question of custody unless it is first made clear from the evidence that a change of conditions has been shown as to the parent with whom custody was first vested. The father had the burden to prove by a preponderance of the evidence that since the rendition of the last final judgment in the case between these same parties involving the custody of the child that there has occurred material changes of conditions that were of such a nature that when they are considered, along with other existing facts and circumstances surrounding the parties and the child that it would be in the child's best interest to change his custody from the mother and award it to the father. Taylor v. Meek, 276 S.W.2d 787 (Tex.Sup.1955); Bukovich v. Bukovich, supra; Knowles v. Grimes, supra; Ogletree v. Crates, 363 S.W.2d 431 (Tex.Sup.1963).

The issue then is whether such a material change of conditions existed in the custodian parent, the mother, since the divorce in April of 1971. The mother admits in her testimony to the following facts: (1) that she had changed jobs three (3) times; (2) that she had moved at least three (3) times; (3) that she had an affair and became pregnant by a man whom she did not marry; (4) that she had an abortion performed out of state; (5) that there were occasions when she permitted a man to whom she was not married to remain in her apartment all night; (6) that she and a man, not her husband, posed for photographs in an apparent state of undress subsequent to the divorce; (7) that at a time when she had custody of the child, she entertained a male house guest while dressed in a short nightgown; (8) that the child was placed in the...