Johnson v. Campbell
| Decision Date | 23 June 1937 |
| Docket Number | No. 10091.,10091. |
| Citation | 107 S.W.2d 1111 |
| Parties | JOHNSON et al. v. CAMPBELL et ux. |
| Court | Texas Court of Appeals |
Appeal from District Court, Guadalupe County; Lester Holt, Judge.
Suit by Mrs. Anna Johnson and husband against E. B. Campbell and wife. From a decree for defendants, plaintiffs appeal.
Affirmed.
Knetsch, Stevenson & Knetsch, of Seguin, for appellants.
R. A. Weinert, of Seguin, for appellees.
Anna Johnson and her husband, H. L. Johnson, residents of Oklahoma City, Okl., filed this suit in the district court of Guadalupe county, in the nature of a writ of habeas corpus, complaining of Eva Campbell and her husband, E. B. Campbell, residents of Guadalupe county, Tex., alleging that they illegally held the custody of Emma Gene Weiten, who was born November 13, 1925, to Mrs. Johnson, then Mrs. Nick Weiten.
Mrs. Johnson alleged, substantially, that her husband, Nick Weiten, died during the year 1927, and that thereafter she gave the temporary custody of said child to the Campbells, and that she was able and willing and the proper person to have the care, control, and education of her daughter, Emma Gene Weiten.
The Campbells answered, substantially, that during the year 1927, immediately after the death of the father, Nick Weiten, they accommodated Mrs. Johnson, then Mrs. Weiten, by taking the child and Mrs. Weiten into their home, without charge, for a period of five or six months; that thereafter Mrs. Campbell took the child and her mother to Little Rock, Ark., where Mrs. Weiten's mother then resided; that while there Mrs. Weiten gave the care, control, and custody of Emma Gene to Mrs. Campbell, and that some time thereafter Mrs. Weiten married a Mr. Tarver and requested the Campbells to bring Emma Gene to them at Smackover, Ark., which she did; and that shortly thereafter Emma Gene's mother, then Mrs. Tarver, requested Mrs. Campbell to take the care, control, and custody of the said Emma Gene, and that she would never thereafter ask her for the control and custody of Emma Gene.
The Campbells further alleged that they continued to care for and educate and support Emma Gene continuously, until about 1935; that when Mrs. Tarver married her present husband, in 1934, she requested the Campbells to bring the child to see them; that they did so, and while they were on such visit the Johnsons by force kept Emma Gene for a period of four or five months, after which time Emma Gene ran away and requested the Campbells to meet her at Gainesville, Tex., which they did; and that they continued to care for the child up to the time of the trial.
The trial was to the court, and after hearing all the evidence the court determined that the best interests of the child would be for Mrs. Eva Campbell to have the permanent control and custody of Emma Gene. The Johnsons being dissatisfied with the judgment bring the case here.
The trial court did not file findings of fact or conclusions of law; none were requested by the Johnsons. In this situation, it is elementary that if the judgment of the trial court can be sustained upon any theory of law, it is our duty to do so. In other words, as is said in 3 Tex.Jur. p. 507, § 355: "When in a case tried by the court without a jury there is a statement of facts but no findings of fact or conclusions of law are in the record, to warrant a reversal the appellant must show from the record that under no theory to be gathered therefrom was the court authorized to render the judgment, and the judgment must be affirmed if the evidence as disclosed by the statement of facts supports it on any theory of the case."
The first proposition of appellants is to the effect that Mrs. Johnson being the mother of Emma Gene Weiten, and there being no evidence as to her moral unfitness or physical or financial inability, the court erred as a matter of law in his judgment awarding the custody of the child to Mrs. Eva Campbell. This same contention was overruled in the case of Duckworth v. Thompson et ux. (Tex.Com.App.) 37 S.W.(2d) 731.
We think the law is well established in this state that in a child custody case the paramount and controlling issue before the court is the question of what is the best interest of the child. Legate v. Legate, 87 Tex. 248, 28 S.W. 281; Duckworth v. Thompson, supra; Fasel v. Gunning (Tex.Civ.App.) 249 S.W. 875; Taylor v. McGee (Tex.Civ.App.) 254 S.W. 155; Sanchez v. Garcia (Tex.Civ.App.) 278 S. W. 868; Smith v. Long (Tex.Civ.App.) 181 S.W. 478; Dunn v. Jackson (Tex. Com.App.) 231 S.W. 351.
The evidence offered by the Campbells, and undoubtedly believed by the trial court, shows that Emma Gene Weiten was born November 13, 1925, and that her father, Nick Weiten, passed away in 1927; that thereafter the Campbells accommodated the child and its mother in their home, for a period of five...
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