Martin v. Martin, 2152.

• Decision Date: 19 October 1939
• Docket Number: No. 2152.,2152.
• Citation: 132 S.W.2d 426
• Parties: MARTIN v. MARTIN.
• Court: Texas Court of Appeals

132 S.W.2d 426

MARTIN v. MARTIN.

No. 2152.

Court of Civil Appeals of Texas. Waco.

October 19, 1939.

Appeal from Seventy-Seventh District Court, Limestone County; H. F. Kirby, Judge.

Habeas corpus proceeding for custody of a child by Eula Kia Martin against T. G. Martin. From an adverse judgment, plaintiff appeals.

Reversed and remanded with instructions.

Reed & Cannon, of Groesbeck, and Roy Creighton, of Mineral Wells, for appellant.

T. G. Martin, in pro. per.

ALEXANDER, Justice.

In 1935, T. G. Martin obtained a divorce from his wife, Eula Kia Martin. At that time the trial court awarded the custody of the minor child, Billie Martin, who was then five years of age, to the wife during the school period and to the husband during the remainder of the year, with the understanding that the party having the minor in custody should provide for his support and education and see that he attended church and Sunday school regularly. When the husband obtained custody of the child for the summer of 1938, he kept the child in his possession and refused to surrender it to the wife at the beginning of the school term of that year. Mrs. Martin sued out writ of habeas corpus for the custody of the child. T. G. Martin answered and alleged that since the entry of the original decree there had been a change in conditions which necessitated setting aside the original judgment and prayed that he be allowed the full custody of the child. Mrs. Martin likewise alleged a change in conditions and sought the full custody of the child. Upon a trial before the court without a jury, the full custody of the child was awarded to the husband subject to visits at reasonable times by the child's mother. Mrs. Martin has appealed.

No complaint is made of the insufficiency of the pleadings of either party and for that reason the pleadings need not be detailed at this time.

The fact that the court in its original decree awarded the child to the mother for part time establishes a finding that the mother was at that time a suitable person to have the custody of her child. Swift v. Swift, Tex.Civ.App., 37 S.W.2d 241. The burden was on the father to prove that a change in conditions had arisen such as to require a new decree depriving the mother of the custody of the child. 15 Tex.Jur. 681; Grego v. Schneider, Tex.Civ.App., 154 S.W. 361.

Among other things, T. G. Martin charged that Mrs. Martin had accepted employment in and frequently visited beer joints and other places where intoxicating liquor was sold, and that she drank beer and danced in public places and allowed the boy to visit such places with her while profane language was being used therein. Upon the trial he wholly failed to prove any of these charges. No evidence whatever was introduced tending to reflect on the moral standing of Mrs. Martin. We therefore give no further consideration to these allegations.

It was charged that Mrs. Martin had failed to keep the boy in school. The evidence showed that the child had attended school regularly each year during the time he had been in the custody of Mrs. Martin, except the year 1937. During that time he lost about thirty-five days from school. The evidence conclusively established that on one occasion during that year he was out of school for seventeen days on account of the mumps, and that the balance of the time was lost due to illness from pneumonia or some similar ailment. It was also alleged that she failed to send the child to Sunday school. She and the boy were the only ones who testified on this issue, and both stated that he was always sent to Sunday school when the weather would permit. These charges were therefore not sustained.

T. G. Martin testified that when he went to get the child in the latter part of May 1936, the child was dressed in overalls and was barefooted, and that one ear was abscessed. It appears, however, that although he secured custody of the child the latter part of May, he did not take him to a doctor for treatment for the abscessed ear until June 16th, and the doctor who treated the child at that time stated that the abscess was of recent origin. Mrs. Martin denied that the boy's ear was infected at the time Martin received custody of him. There was no evidence whatever that Mrs. Martin was in anywise negligent in failing to treat the infected ear while the boy was in her custody. The evidence showed that during the previous year Mrs. Martin had caused the boy's tonsils to be removed at her own expense and without any assistance from the child's father. The evidence showed that the infected ear was probably caused by the previous trouble with the tonsils. Said T. G. Martin further testified that when he received the custody of the child on May 25, 1937, he was dressed in overalls, was barefooted and unclean; that his toes were bruised and his heels blistered, and he had to carry his shoes in his hands. He also testified, that his arms and forehead were infected, and that one of his front teeth was infected and had to be pulled. He admits, however, that he did not take the child to a doctor for treatment for the infections on his arms until September 4th of the same year. The doctor who treated the child at that time stated that the infections were probably due to scratches. Mrs. Martin denied that anything was wrong with the child at the time the father obtained custody of him. The boy testified that he injured his front tooth by falling against a chair. Again, no evidence whatever was introduced tending to show how long these infections of the arms or of the tooth had existed nor that they had lasted so long as to justify the inference that Mrs. Martin had been negligent in...