McBrien v. Zacha

• Decision Date: 20 October 1961
• Docket Number: No. 15925,15925
• Citation: 351 S.W.2d 101
• Parties: Robert James McBRIEN, Jr., Appellant, v. Allie ZACHA, Appellee.
• Court: Texas Court of Appeals

Page 101

351 S.W.2d 101

Robert James McBRIEN, Jr., Appellant, v. Allie ZACHA, Appellee.

No. 15925.

Court of Civil Appeals of Texas, Dallas.

Oct. 20, 1961.

Rehearing Denied Nov. 10, 1961.

Burt Barr, Dallas, for appellant.

William W. Looney and Lawrence E. Ackels, Dallas, for appellee.

WILLIAMS, Justice.

Robert James McBrien, Jr. filed suit for divorce against Rosemary McBrien wherein he also sought a division of the community property and asked for custody of a minor child, Patrick McBrien. Rosemary McBrien filed a cross-action for divorce and also sought custody of the minor child. Mrs. Allie Zacha, maternal grandmother of said minor child, filed a plea of intervention seeking an order granting to her custody of the minor child. At the conclusion of a non-jury trial the court granted a divorce to Robert James McBrien, Jr.; entered a decree concerning division of the property; and awarded the custody of the minor child to the intervenor, Allie Zacha, the language of the decree being as follows:

'It is further ordered that the defendant is unfit for custody of the minor child at the present time and although the plaintiff is found to be not unfit at the present time, it is in the best interests of the minor child for the custody not to be given to the father, but because it is in the best interests of the minor child, the care, custody and control of the minor child, Patrick Timonthy McBrien, is given to the maternal grandmother, Mrs. Allie Zacha, intervenor herein.'

From this decree the mother does not appeal. The father Robert James McBrien, Jr., appellant herein, inveighs against the trial court's decree in two points of error (1) that the trial court erred in awarding custody of the minor child to a third party when the court found that the father was a fit and proper person, and (2) that the trial court erred in permitting the maternal grandmother to intervene and seek custody of the minor child. We will dispose of these points in inverse order.

Appellant's objection to the filing of the plea of intervention by appellee herein, orally presented, was that such plea was untimely filed and that 'said maternal grandmother has no justiciable interest in said child.' With reference to the time of filing of said plea, appellant sought no continuance either verbally or in writing. The trial court was correct in permitting the filing of the plea of intervention. Our Constitution, Art. 5, sec. 8, Vernon's Ann.St., specifically provides that the District Court, in divorce proceedings, may award custody of a child to a third person, who intervenes and asks therefor. The grandmother obviously had an interest in the welfare of the child. Appellant's first point is overruled. Noble v. Noble, Tex.Civ.App., 185 S.W. 318; Mitchell v. Mitchell, Tex.Civ.App., 168 S.W.2d 702; Haynes v. Haynes, Tex.Civ.App., 191 S.W.2d 81.

No challenge is presented on this appeal concerning the unfitness of the mother to have custody of the child. The chief question presented by this appeal is the propriety of the trial court awarding custody of the minor child to the maternal grandmother rather than to the natural father. Appellant vigorously contends that in the absence of a finding that he was unfit to have custody of the child that he had a paramount right to have the child awarded to him. Appellant cites may cases to the effect that the law presumes that the best interests of the child will be subserved by allowing it to remain in the custody of the natural parents. Legate v. Legate, 87 Tex. 248, 28 S.W. 281; Sims v. Cole, Tex.Civ.App., 264 S.W.2d 185; Swift v. Swift, Tex.Civ.App., 37 S.W.2d 241; Valentine v. Valentine, Tex.Civ.App., 203 S.W.2d 693; Sawyer v. Bezner, Tex.Civ.App., 204 S.W.2d 19; Luman v. Luman, Tex.Civ.App., 231 S.W.2d 555; 27 Tex.Law Review 387. We agree with appellant that this is a correct statement of the general rule concerning such legal presumption. However, appellant, with equal candor, admits that this rule has certain qualifications. Thus in Dunn v. Jackson, Tex.Com.App., 231 S.W. 351, the court said that such legal presumption is subject to be overcome by a person other than a natural parent. In Luman v. Luman, Tex.Civ.App., 231 S.W.2d 555, the court, while recognizing the presumption of paramount right also stated that such presumption is subject to be overcome by evidence which is clear and convincing and presents a solid and substantial ground to authorize the courts to sever the hallowed ties which mutually exist between a child and its parents. Stutts v. Stutts, Tex.Civ.App., 177 S.W.2d 294; Binion v. Mathis, Tex.Civ.App., 171 S.W.2d 512. In Fleming v. Honeycutt, Tex.Civ.App., 205 S.W.2d 137 the court recognized a superior natural right of the parent to the custody and control of his child but stated that such right is not an absolute one, but one under some circumstances is...