Lewis v. Cushing

• Decision Date: 04 September 1969
• Docket Number: No. 7079,7079
• Citation: 444 S.W.2d 815
• Parties: Henry Etta Cushing LEWIS et al., Appellants, v. David D. CUSHING, Appellee. . Beaumont
• Court: Texas Court of Appeals

Page 815

444 S.W.2d 815

Henry Etta Cushing LEWIS et al., Appellants, v. David D. CUSHING, Appellee.

No. 7079.

Court of Civil Appeals of Texas.

Beaumont.

Sept. 4, 1969.

Robert D. Nogueira, Beeville, for appellants.

Paul Hill, Corpus Christi, for appellee.

KEITH, Justice.

The natural mother appeals from a judgment, based upon a jury verdict, which denied her suit for the custody of her three minor children. The initial tragedy of a teen-age marriage has now been compounded to involve the lives of not only these three unfortunate victims, but new spouses and children born of a second marriage of the father. When the father, David, was nineteen years old, he married the appellant, Henry Etta Lewis (known in our record as 'Penny'), then of the tender age of sixteen years. Enlisting in the Air Force in 1960, some five years after the marriage, David was assigned to an air base in Alabama. On December 12, 1961, a divorce was granted in Penny's suit which awarded the custody of the three children to David nine months of the year and to Penny for the remaining three months of each year. At the time of trial, Little Davey was thirteen years of age, Dorothy (Dodie) was twelve, and Danny was nine years of age.

Four days after the divorce, David married his present wife, Partricia, who was at that time a member of the Women's Air Force, a former baby sitter for David and Penny while they were married. To this marriage three children have been born. David has remained in the Air Force and has now advanced to the rank of sergeant and is stationed, more or less permanently, at Dayton, Ohio, after having served in several other areas, including Japan. He is buying a home in Dayton, has a comfortable income, security in his economic future, and there is no hint in the record that he is an unfit person to have the custody of the children involved here.

Penny, too, has improved her lot. From being a high-school drop-out at the time of the divorce, qualified to work only as a carhop in a drive-in stand, she has secured her high school diploma, some college credits, and was a secretary at the time she married Lawrence Lewis, a Navy Lieutenant, piloting jet planes from carriers . They have purchased a comfortable home in Beeville, Texas, where Lt. Lewis is presently stationed, and, like Sgt. Cushing, have a comfortable income and security of economic future. There is no intimation in our record that the Lewises are unfit to have the custody of the children.

The case was submitted to the jury on two issues, the first submitting the issue of a material change of conditions since the entry of the Alabama decree in 1961 (which the jury answered 'Yes') and the second asking the jury to determine if the best interest of the children would be served by placing them with the mother or the father, to which the jury answered, 'David D. Cushing.' The judgment followed the verdict with custody being awarded to David with the right of Penny to visit with such children two weeks in each year. The decree contains elaborate provisions to insure the return of the children to the father at the conclusion of the annual two-week visitation period.

The record is lengthy with nearly four hundred pages in the statement of facts and a separate volume of exhibits. Penny comes forward with five points, the first four of which present evidence questions. ¹ The fith and final point raises the question of jury misconduct and we will reserve comment thereon until it is reached later in this opinion.

In passing upon the 'no-evidence' point, to determine if there is any evidence to support the finding of the jury, we must consider only the evidence most favorable to the finding and disregard that which is opposed to it. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 613, 23 A.L.R.2d 1114 (1950); however, as to the second and third points in the series raising the 'sufficiency' question we will consider the entire record. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951).

The oldest boy, Davey, is a cerebral palsy victim and for the past several years has been under treatment in military hospitals, the treatment being furnished by reason of his father's military status. While there is no expert medical evidence in the record, it is reasonable to believe that continued treatment of this condition will be required in the foreseeable future. The two younger children are normal. Pat Cushing, the stepmother, has had the paramount responsibility of rearing the three children for nearly seven years immediately preceding the trial of the case. While she admits to being a 'firm' disciplinarian, her husband, the father of the children terms her discipline 'stern.' However, the description given by each discloses that this exercise in semantics really means that she requires the children to mind and punishes them when they are disobedient.

Literaly dozens of pages in our record are taken up with the account of the trials and tribulations of Sgt. Cushing in taking the children on the cross-country trips to allow them to visit their mother. One year, through a mix-up in communication, or otherwise, when he brought the children from Japan to California for the purpose of allowing them to visit their mother, the parents did not make contact and the children were returned to Japan without having visited their mother.

The mother, although not formally affiliated with any religious organization, appears from the record to have discharged the obligation of giving the children appropriate religious training, including formal church attendance while the children were with her. Lt. Lewis was not a member of any church. Both Sgt. Cushing and his present wife are members of a church and actively participate in religious activities.

Upon the trial, both parents gave testimony about an informal agreement which they had about the time of the divorce to the effect that the children would be allowed to choose the parent with whom they wanted to live when they reached the age of twelve years. The older daughter, Dodie, gave testimony before the jury, choosing her mother, and, although the reasons assigned were plausible, the jury found that it would be to her best interest for her to remain with her father. The court properly received this testimony (Callicott v . Callicott, 364 S.W.2d 455, 458 (Houston, Tex.Civ.App., 1963, error ref., n.r.e.)), but such testimony must be weighed along with the other testimony in determining the issue of custody. The child's choice is not necessarily a controlling factor. Dunn v. Jackson, 231 S.W. 351, 353 (Com.App., 1921, holdings approved); Doherty v. Dean, 337 S.W.2d 153, 156 (Austin, Tex.Civ.App., 1960, no writ). See also, Annotation, 4 A.L.R.3d, 1396 (1965).

We have carefully reviewed the record, being assisted by excellent briefs filed by counsel, and have come to the conclusion that the first three points raised by Penny must be overruled. The jury found, and no one challenges the finding (with which we agree), that there had been material changes in the condition of the parents since the entry of the Alabama decree.

The original Alabama decree granting the divorce simply approved the stipulation of the parties that the father should have the custody of the children 'for a period of nine months out of the year, and the Complainant (mother) is awarded the care, custody, and control of said children the remaining three months out of the year.' This record serves to convince us that Judge Alexander's language used in Martin v. Martin, 132 S.W.2d 426, 428 (Waco, Tex.Civ.App., 1939, no writ) is not only sound but peculiarly appropriate here:

'In our opinion, the original decree awarding the child part time to each of the parents was unwise.' ²

The jury had the opportunity to consider all of the evidence, after seeing the witnesses and evaluating their testimony under instructions which are not attacked. The case being tried under Article 4639a, Vernon's Ann.Civ.St., the judgment followed the verdict as required by the statute. We must place this verdict in the same category as a jury finding in any other case when it is attacked. Welch v. Welch, 369 S.W.2d 434, 437 (Dallas, Tex.Civ.App., 1963, no writ); Kirchner v. Van Skike, 410 S.W.2d 467 (Tyler, Tex.Civ.App., 1966, no writ); Heiskell v. Heiskell, 412 S.W.2d 774 (Amarillo, Tex.Civ.App., 1967, no writ); Huff v. Stafford, 429 S.W.2d 620 (Dallas, Tex.Civ.App., 1968, error dism.); Harrelson v. Davis, 415 S.W.2d 293 (Ft. Worth, Tex.Civ.App., 1967, no writ).

While the mother did succeed in showing a change in conditions occurring after the entry of the Alabama decree, she still faced the burden of convincing the trier of the facts that the best interest of the children would be served by awarding their custody to her. Her success in showing the changed conditions simply brought into operation the rule of law that the paramount question in all custody proceedings is to determine what is in the best interest of the children. Legate v. Legate, 87 Tex. 248, 28 S.W. 281, 282 (1894); Ex parte Eaton, 151 Tex. 581, 252 S.W.2d 557, 560 (1952); Callicott v. Callicott, supra (364 S.W.2d at p. 458); 20 Tex.Jur.2d, Divorce & Separation, § 322, p. 647. The mother, consequently, failed to carry the burden of establishing her right to a change of the custody of the children. The question was, however, very close and a finding in favor of Penny would have had ample support in the evidence.

The fourth point of Penny is in this language:

'The jury's answer to Special Issue No. 2 ³ and the trial court judgment thereon are not supported by the evidence because Appellant pleaded and proved changed conditions and her fitness to have custody of the children and that it would be to their best interests that their custody be placed in Appellant, and Appellee wholly failed to prove to the contrary by evidence of probative force.'

The burden was upon Penny to show not only the changed...