McCarroll v. Lakey

• Decision Date: 05 December 1941
• Docket Number: No. 2209.,2209.
• Citation: 157 S.W.2d 963
• Parties: McCARROLL v. LAKEY.
• Court: Texas Court of Appeals

157 S.W.2d 963

McCARROLL v. LAKEY.

No. 2209.

Court of Civil Appeals of Texas. Eastland.

December 5, 1941.

Rehearing Denied January 9, 1942.

Appeal from District Court, Dawson County; Louis B. Reed, Judge.

Suit by P. B. Lakey against R. O. McCarroll for the custody of plaintiff's two minor children. Judgment for plaintiff, and defendant appeals.

Affirmed.

Smith & Smith, of Anson, for appellant.

Truett Smith, of Tahoka, for appellee.

LESLIE, Chief Justice.

This is an appeal from a judgment awarding custody of two minor children to the father, P. B. Lakey, appellee. On May 7, 1937, a judgment for divorce was awarded Velma Lakey in her suit against P. B. Lakey, and in that judgment the custody of the two minor children was awarded to R. O. McCarroll, the father of Velma Lakey. Subsequent to the instant suit, Velma Lakey died October 18, 1937, at a time when she was making her home with her parents, Mr. and Mrs. R. O. McCarroll, who had theretofore moved to Dawson County.

Shortly after the death of Velma Lakey, said P. B. Lakey filed this suit against R. O. McCarroll in the District Court of Jones County, which cause was later removed to Dawson County on a change of venue. The venue question was considered and determined in the following opinions: Lakey v. McCarroll, Tex.Civ.App., 131 S. W.2d 181; Id., 134 Tex. 191, 134 S.W.2d 1016.

On the trial of the instant case the defendant urged a general demurrer, general denial, and sought by special allegations to retain custody of the children. The demurrer was overruled and in a trial before the court without a jury the custody of the children was awarded to plaintiff P. B. Lakey. At the request of appellant the trial court made and filed findings of fact and conclusions of law.

The cause went to trial on plaintiff's first amended original petition filed November 25, 1940, and the general demurrer was urged on the theory that said pleadings failed to allege sufficient material changes affecting the welfare of the children since the original order of May 7, 1937 (awarding custody of children to grandfather) to justify or warrant a change of the custody of the minor children. Among the most material changes alleged, and without going into detail, the amended petition alleges (1) that since the original award said R. O. McCarroll had moved from Jones County to Dawson County, taking the children with him; (2) that Velma Lakey agreed to live with her father, R. O. McCarroll, giving her care and attention to the children, but that she had died October 18, 1937; (3) that said R. O. McCarroll was of a transient nature, moving about over the country, and had moved three times since the children were awarded to him, carrying the children into new and unfavorable surroundings; and (4) that said R. O. McCarroll was unable financially to take care of and minister to the wants and needs of said children, whereas the plaintiff was financially able to do so and had a home place of residence where said children could reside and have educational advantages and reasonable comforts of life. The children are boys, aged 5 and 3 at the date of trial.

These and other such allegations are made to present conditions differing in material respects from those existing at the time custody of the children was first awarded to R. O. McCarroll. We are of the opinion that the allegations are sufficient as against the general demurrer, and it appears that that question was decided by the Supreme Court in Lakey v. McCarroll, 134 Tex. 191, 134 S.W.2d 1016, 1018, wherein it used this language: "Simply stated, the petition contains allegations of fact which, if found to be true, would justify a court of competent jurisdiction in removing...