Leithold v. Plass

• Decision Date: 01 March 1967
• Docket Number: No. A--11509,A--11509
• Citation: 413 S.W.2d 698
• Parties: Louis C. LEITHOLD, Petitioner, v. Thyra Nichols PLASS and Gilbert Norman Plass, Respondents.
• Court: Texas Supreme Court

Page 698

413 S.W.2d 698

Louis C. LEITHOLD, Petitioner, v. Thyra Nichols PLASS and Gilbert Norman Plass, Respondents.

No. A--11509.

Supreme Court of Texas.

March 1, 1967.

Rehearing Denied April 26, 1967.

Turner, Hitchins, McInerney, Webb & Hartnett, J. Glenn Turner, Jr., Dallas, for petitioner.

William A. McKenzie, Conway R. Lammers, Dallas, for respondents.

STEAKLEY, Justice.

In 1959, petitioner, Louis C. Leithold, and respondent, Thyra N. Plass, while husband and wife, adopted a minor child, Gordon Marc Leithold. They were divorced by decree of an Arizona court in 1962. Respondent was awarded custody of the child and petitioner was accorded certain visitation rights. ¹ Thereafter, respondent married Gilbert Norman Plass and moved to Dallas, Texas, in 1963 where she, her husband and the adopted child now reside. Petitioner now lives in California. In 1965, he instituted this suit against his former wife and her present husband in the Juvenile Court of Dallas County, Texas. The petition was styled 'Application for Modification of Visitation and Custody' and sought substantial modifications of the Arizona decree upon allegations of changed conditions and circumstances. After hearing the Dallas court modified the Arizona decree with respect to Petitioner's visitation rights as follows:

'It is therefore, ordered, adjudged and decreed that the Plaintiff Louis C. Leithold shall have visitation with his minor son, Gordon Marc Leithold, in his home in Malibu, California, from September 2 to September 12, 1965, and for a two-week period of each year hereafter commencing with the year 1966. Defendants are ordered to deliver up said child to the Plaintiff on the date each period of visitation commences hereunder. Plaintiff shall pick up said child in Dallas and return him at the close of such visitation.'

Petitioner was required to post a $500.00 bond conditioned upon his returning the child to the Dallas Court at the close of the visitation periods. Only respondent appealed from the judgment.

The court of civil appeals was of the view that the judgment of the trial court modified the Arizona decree with respect to custody of the child, rather than visitation, and held that petitioner failed to show a change of conditions that would authorize a modification of the custody provisions of the prior decree. The court expressed the further opinion that the trial court 'under this record could have undoubtedly entered a true visitation order' and remanded the case for the stated reason that in its opinion the trial below was upon an erroneous theory. ²

It is clear to us that the judgment of the trial court modified the Arizona decree with respect only to the visitation rights of petitioner and that custody of the child as awarded by the Arizona court was unaffected. There being evidence of a change of conditions sufficient to support such order, we reverse the judgment of the court of civil appeals and affirm that of the trial court.

Custody of a child connotes the right to establish the child's domicile and includes the elements of immediate and direct care and control of the child, together with provision for its needs. See Glasgow v. Hurley, 333 S.W.2d 658 (Tex.Civ.App.--Dallas 1960, no writ); Quick v. Lindsay, 208 S.W.2d 910 (Tex.Civ.App.--Galveston 1948, no writ); McFadden v. McFadden, 206 Or. 253, 292 P.2d 795 (1956); Selby v. Selby, Ohio App., 69 Ohio Law Abst. 257, 124 N.E.2d 772 (1952); Burge v. City and County of San Francisco, 41 Cal.2d 608, 262 P.2d 6 (1953); and In re Parks' Petition, 262 Minn. 319, 114 N.W.2d 667 (1962). These rights inherent in a custody status are not held by one enjoying visitation rights as provided in the custody decree.

This is well-illustrated here. The Arizona decree ordered that the 'permanent care, custody and control of the minor child of the parties, Marc Leithold, is awarded to the plaintiff (respondent here) with visitation rights in the defendant (petitioner here) as follows, etc.' The decree of the trial court in the instant proceeding did not purport to disturb this existing and permanent custody status. The judgment explicitly speaks in terms of 'visitation * * * from September 2 to September 12, 1965, and for a two-week period of each year hereafter commencing with the year 1966.'

Respondent is quite forthright in presenting her position and the issue before us. In her Supplemental Brief to Petitioner's Application for Writ of Error, respondent urges the proposition that the visitation decree of the trial court did not conform to Petitioner's pleadings for which reason 'it is fundamentally erroneous and void,' and summarizes her position as follows: 'In the instant case the Trial Court entered a judgment based on visitation not custody, and it therefore remains the contention of Respondent that the order entered by the Trial Court disregarded completely the pleadings of Petitioner and entered a judgment granting visitation privileges, which privileges were not even pled in the original petition.'

As we have previously noted, Petitioner in his pleadings sought a modification of the Arizona decree with respect to 'custody and control' of the child and specifically prayed:

'WHEREFORE, premises considered, Plaintiff prays that Defendants Thyra Nichols Plass and Gilbert Norman Plass be cited to appear herein and upon final hearing hereof this Court grant the following relief:

'1. That the aforesaid Judgment and Decree be modified so that Plaintiff be given custody and control of Gordon Marc Leithold from June 15 to September 1 of each year hereafter commencing with the year 1965, and during such period of each year Plaintiff shall have the right to take said child to his home in Malibu, California;

Respondent would have us hold that such a pleading and prayer will not support a judgment for lesser relief in the nature of modified visitation rights with permanent custody as previously decreed remaining unaffected. To the contrary, we are of the view that a suit properly invoking the jurisdiction of a court with respect to custody and control of a minor child vests that court with decretal powers in all relevant custody, control, possession and visitation matters involving the child. The courts are given wide discretion in such proceedings. Ex Parte Eaton, 151 Tex. 581, 252 S.W.2d 557 (1952); Furrer v. Furrer, 267 S.W.2d 226, (Tex.Civ.App.--Austin 1954, no writ) Technical rules of practice and pleadings are of little importance in determining issues concerning the custody of children. Conley v. St. Jacques, 110 S.W.2d 1238, 1242 (Tex.Civ.App.--Amarillo 1937, writ dism'd); Williams v. Guynes, 97 S.W.2d 988 (Tex.Civ.App.--El Paso 1936, no writ). It is beside the point that in the instant proceeding the trial court, whether erroneously or not, construed the pleadings of petitioner as seeking only a modification of visitation rights; the point is that once the child is brought under its jurisdiction by suit and pleading cast in terms of custody and control, it becomes the duty of the court in the exercise of its equitable powers to make proper disposition of all matters comprehended thereby in a manner supported by the evidence.

Here the trial court has done no more than modify the existing visitation privileges of petitioner and the validity of its judgment in such respect is to be tested on the assumption that the court found every disputed fact in support of its judgment. Rules 296--299, Tex.R.Civ.P.; Construction & G. L. Union, etc. v. Stephenson, 148 Tex. 434, 225 S.W.2d 958 (1950). All necessary fact findings are implied. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114 (1951). It is unnecessary for us to review the competent evidence of a change of conditions since the entry of the Arizona decree which rendered its visitation provisions unworkable and inappropriate. The court of civil appeals recognized that the record amply supports 'a true visitation order' but under its view of the case ruled there was no evidence of probative force to support an implied finding of material changes supportive of a change of custody. As indicated above, respondent does not argue there is no evidence to support the trial court decree if considered as modifying visitation rights only; nor did respondent assert by point of error in the court of civil appeals that the judgment of the trial court was so against the weight and preponderance of the evidence as to show an abuse of discretion. Rather, it is respondent's basic position that the trial below was limited to a question of custody by virtue of petitioner's pleadings; that the order was one modifying custody and as such was without support in the evidence. But our view is otherwise, and we hold that the pleadings of petitioner support the modification of the visitation provisions of the Arizona decree and that such was the effect of the judgment of the trial court. It is also our view that the visitation order of the trial court did not, as urged by respondent, provide for a divided custody, in the sense of the cited case of Martin v. Martin, 132 S.W.2d 426 (Tex.Civ.App.--Waco 1939, no writ).

The judgment of the court of civil appeals is reversed and that of the trial court is affirmed.

SMITH, NORVELL and HAMILTON, JJ., dissent.

NORVELL, Justice (dissenting).

This Court, the Court of Civil Appeals and, seemingly, the trial court have turned this case upon a distinction between 'visitation rights' and 'custody rights'. In my opinion, this distinction is elusive at best and wholly immaterial to the true issue in the case which is the best interest of the child ¹. There is a well recognized distinction often encountered in cases involving the custody of children or the right to visit them which is clearly pointed out in our venue cases. In Leonard v. Leonard, 358 S.W.2d 721 (Tex.Civ.App.1962, no writ), the Amarillo Court of Civil Appeals said:

'Appellee takes the position that this suit is one to...