Leonard v. Leonard, 11915.

• Decision Date: 23 February 1949
• Docket Number: No. 11915.,11915.
• Citation: 218 S.W.2d 296
• Parties: LEONARD v. LEONARD.
• Court: Texas Court of Appeals

218 S.W.2d 296

LEONARD v. LEONARD.

No. 11915.

Court of Civil Appeals of Texas. San Antonio.

February 23, 1949.

Appeal from District Court, Nueces County, 117th District; Cullen W. Briggs, Judge.

Suit by Malvanee Leonard against Otto A. Leonard to change custody of child of the parties from the defendant to plaintiff. From an adverse judgment, defendant appeals.

Judgment reversed and rendered.

Phillips, Horton & Williamson, of Corpus Christi, for appellant.

House & House and Ellis P. House, all of Dallas, for appellee.

MURRAY, Justice.

This is an appeal from a decree of the 117th District Court of Nueces County, Texas, modifying a former decree of that court changing the principal custody of Linda Sue Leonard, a girl seven years of age, from that of her father to that of her mother.

On November 7, 1947, Malvanee Leonard was granted a divorce from her husband, Otto A. Leonard, and the principal custody of their daughter, Linda Sue, was awarded to the husband, Otto A. Leonard. The decree provided for the child to be first with its mother and then with its father, and back and forth several times, but further provided, after September 5, 1948, that Otto Leonard was to have the exclusive control and possession of said child during the school year, and the mother to have the exclusive care and possession during the summer vacation months, and for this arrangement to continue from year to year until further orders of the court. In this decree the court found as follows: "The court further finds that both plaintiff and defendant are each fully qualified, capable and proper persons to have the care, custody and supervision of said minor child and each has a good and sufficient home in which to rear said child." There are other provisions of the decree which are not necessary here to be mentioned. It appears from the record that some five days were consumed in hearing this divorce case, at the end of which time the decree as entered herein was agreed upon by the parties and entered by the court as agreed upon, and that as a result of this agreement certain paragraphs of the pleadings were expunged from the record and a number of depositions destroyed. No appeal was taken from this judgment and it became final. This divorce case was styled, Malvanee Leonard v. Otto A. Leonard, and was cause No. 30586-A. It was originally filed in the 28th District Court of Nueces County, but was heard before the Honorable Cullen W. Briggs, Judge of the 117th District Court of Nueces County.

On February 25, 1948, the present suit was instituted in the 117th District Court of Nueces County and styled Malvanee Leonard v. Otto A. Leonard, No. 37727-B. The purpose of this suit was to change the principal custody of Linda Sue Leonard from the father, as awarded in the original divorce suit, to that of the mother. The trial was had before the same judge who had tried the divorce case, without a jury, and judgment rendered awarding the principal custody of Linda Sue Leonard to her mother during the school months and to the father during the Christmas holidays and certain other holidays and during the months of July and August of each year.

The trial court made findings of fact and conclusions of law as follows:

"Findings of Fact.

"1. The Court finds that the judgment in Cause Number 30586-A, being the same judgment that Malvanee Leonard seeks to modify in this cause insofar as it affects the best interest of Linda Sue, as same frequently transfers Linda Sue from plaintiff to defendant and from defendant to plaintiff; and in so doing, requires her to travel some seven hundred ninety to nine hundred fifty miles (depending on the mode of transportation used) each time she was so transferred; which was not to the best interest of Linda Sue; in fact, was against her best interest.

"2. The Court further finds that the judgment in Cause Number 30586-A, places Linda Sue in two custodies; and subjecting her, as under said judgment, to the customs and habits of two families was and is against the best interest of said child.

"3. The Court further finds that the father of Linda Sue Leonard, the minor, is required to work away from home throughout the day; and that the minor child, Linda Sue, while her father would be so working, would be left by him with only her paternal grandmother; which grandmother, the Court finds from the evidence, is between sixty-nine and seventy-two years old.

"4. The Court further finds that Linda Sue, the minor, has spent all of her life with her mother, and has never lived or had a home away from her except for short periods of time under the judgment in Cause Number 30586-A (original judgment by the plaintiff herein sought to be modified); and that Linda Sue and her mother are very much attached to each other, as are Linda Sue and her maternal grandmother, Mrs. Ruby Reston (a widow about forty-five years old, with whom Mrs. Leonard and Linda Sue live).

"5. The Court finds that the plaintiff, Malvanee Leonard, and Mrs. Ruby Reston, Mrs. Leonard's mother and Linda Sue's maternal grandmother, live in the same house, and only a block or two from the home of the minor's maternal great-grandmother, Mrs. Jane Carter; and that both are good homes, surrounded by good society, near good schools, with good churches convenient thereto, and with plenty of playgrounds for Linda Sue.

"6. The Court further finds that upon trial of this cause and a hearing of the defendant's amended motion for new trial, the defendant, Otto A. Leonard, fully approved the judgment of the Court in Cause Number 30586-A, and contended that same should stand as written; and thereby agreed that Malvanee Leonard, Linda Sue's mother, was a suitable and proper person to have the care and custody of Linda Sue; and further that Linda Sue's mother had a good, sufficient and proper home with proper surroundings in which Linda Sue could live.

"7. The Court further finds that the defendant, Otto A. Leonard, claims that the plaintiff, Malvanee Leonard, perjured herself upon the trial of the above entitled and numbered cause. However, the Court finds that most of this contention is based only upon the contradictory testimony offered by the parties, and further finds that no false testimony (if any) was given by the plaintiff on any material point in this case.

"8. The Court further finds that Linda Sue, a girl, the minor in question, has never lived separate and apart from her mother except for a few days at a time under the judgment in Cause Number 30586-A.

"9. The Court further finds that Linda Sue would be much better off in the company and care, supervision and custody, of her mother, who, the Court finds, can now be with Linda Sue in the home all the time; as the facts show that Linda Sue's mother has plenty of work in the home where Linda Sue lives, and can be constantly with Linda Sue, both day and night and thereby give Linda Sue the benefit and advantage of living, not only with her mother and having her attention and care, but also in the same house with Mrs. Ruby Reston, her maternal grandmother, whom the record shows to be only forty-five years old; and within about one or two blocks of Linda Sue's maternal great-grandmother, Mrs. Jane Carter, who also has a good home and playgrounds for Linda Sue.

"10. The Court further finds that the Juvenile Report introduced in evidence in this cause, being the report of the Juvenile Department of Corpus Christi, reads in part as to Linda Sue's home life as follows: `Under the present plan presented by the united efforts of Mrs. Carter, Mrs. Reston and Mrs. Leonard,' (for explanation, we add: meaning: Mrs. Malvanee Leonard, the mother, about twenty-six years old; Mrs. Ruby Reston, the maternal grandmother, about forty-five years old, and Mrs. Jane Carter, the maternal great-grandmother, about sixty-five years old.) `Linda Sue is receiving proper supervision and care.'

"11. The Court further finds that since the entry of the judgment in Cause Number 30586-A, material changes have taken place, materially affecting the best interest of Linda Sue, the minor child, and making it to the best interest of Linda Sue that the Court modify, alter and change; in fact, enter a new judgment as prayed for in Cause 37727-B; and that to change the custody of Linda Sue as has been done in the judgment in Cause Number 37727-B is to the best interest of Linda Sue.

"12. The Court further finds that the original judgment in Cause Number 30586-A, especially when the Court considers the effect it had and is having on Linda Sue's best interest; and after said judgment had been in force for some time; is, as written against the best interest of Linda Sue; as the evidence and pleadings show the creation of a new condition in keeping with which a new judgment as prayed for in Cause 37727-B...