McGuire v. Brown

• Decision Date: 04 April 1979
• Docket Number: No. 12877,12877
• Parties: Michael McGUIRE, Appellant, v. Christy Joyce BROWN, Appellee.
• Court: Texas Court of Appeals

Page 425

580 S.W.2d 425

Michael McGUIRE, Appellant, v. Christy Joyce BROWN, Appellee.

No. 12877.

Court of Civil Appeals of Texas, Austin.

April 4, 1979.

Rehearing Denied May 2, 1979.

Larry J. Dowling, Austin, for appellant.

Gene Y. Stratton, Bertram, Clayton E. Evans, Burnet, for appellee.

SHANNON, Justice.

This appeal concerns the termination of a parent-child relationship pursuant to Tex.Family Code Ann. § 15.02 (Supp.1978).

Appellee Christy Joyce Brown filed suit in the district court of Burnet County seeking termination of the parent-child relationship between her former husband, appellant Michael McGuire, and their only child, Erin McGuire. After trial to a jury, the district court entered judgment terminating the parent-child relationship.

Appellee and appellant were divorced January 14, 1976, by order of the district court of Burnet County. Erin McGuire was born May 22, 1973. According to the parties, the divorce judgment named appellee and appellant joint managing conservators and ordered neither to pay child support. Appellee married her present husband on March 23, 1976.

In her trial pleading, appellee asserted as grounds for termination that: (1) appellant had failed to support the child for a period in excess of one year ending within six months of the filing of suit; and (2) appellant had engaged in conduct which endangered the physical and emotional well-being of the child. Appellee also pleaded that termination of the parent-child relationship between appellant and the child was in the best interest of the child.

The court's charge contained three special issues. The jury answered: (1) that appellant failed to support the child in accordance with his ability during a period of one year ending within six months of the date of the filing of the petition; (2) that appellant had engaged in conduct which endangered the physical or emotional well-being of the child; and (3) that termination of the parent-child relationship between appellant and the child was in the best interest of the child. The district court entered judgment in accordance with the jury verdict.

Appellant complains of the judgment by seven points of error. Points one and two are that there is no evidence, or insufficient evidence, to support the jury's answer that appellant failed to support the child in accordance with his ability during a period of one year ending within six months of the date of the filing of suit. Point three is that there is no evidence that termination of the parent-child relationship was in the best interest of the child.

In considering a "no evidence" point, the reviewing court must reject all evidence contrary to the jury's findings and consider only the facts and circumstances which tend to support those findings. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950); Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696 (1914). In reviewing factual sufficiency points of error, the court considers all of the evidence to determine whether the findings are so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 Texas L.Rev. 361 (1960).

Texas Family Code Ann. § 15.02 (Supp.1978) empowers the court to grant a petition requesting termination of the parent-child relationship of a non-requesting parent when:

"(1) the parent has:

(E) engaged in conduct . . . which endangers the physical or emotional well-being of the child; or

(F) failed to support the child in accordance with his ability during a period of one year ending within six months of the date of the filing of the petition;

(K) . . . and in addition, the court further finds that

(2) termination is in the best interest of the child."

The evidence with respect to failure to support, § 15.02(1)(F), is that appellant is thirty years old, healthy, and able to work. After entry of the divorce judgment, appellant went to Chicago and worked in commercial photography darkrooms. He also attended photography classes at an art institute located in Chicago. After several months in Chicago, appellant returned to Austin. In Austin he has worked in a photography laboratory and as a carpenter. The owner of the Austin photography lab testified that appellant was paid $2.50 an hour and worked about thirty-five hours a week. Appellant earned about $800.00 monthly as a carpenter. Appellant has not remarried, and has no unusual expenses.

On direct examination, counsel asked appellant whether he sent ". . . any money at all to (appellee) during that year (the year ending within six months of the filing of suit)?" Appellant responded, "Yes I am sure I did." Appellant admitted, however, that the sum sent was ". . . not very much." Appellee testified that although she had requested appellant many times to help support the child, he had never done so, other than to make one $20.00 payment for the entire year. On the last occasion appellee asked appellant for support for the child, appellant not only refused her but also cursed her so violently in the presence of the child that appellee's father threw appellant out of the house.

To support the child, appellee worked as a sales clerk in her mother's shop in Horseshoe Bay. She also worked as a ranch hand on her father's ranch, planting and gathering hay, fixing fences, and helping with the cattle. Appellee also borrowed money from her parents to buy necessaries for the child.

Appellant claimed that, had he been ordered by the court to make child support payments, he would have done so. Appellant stated on cross-examination that the reason that he did not pay support for his child was "(b)ecause I wanted to support him in my home and I wasn't allowed to." The parties had planned prior to the entry of the divorce judgment that appellee would support Erin in her home and appellant would support the child in his home, but that plan had not worked out. Appellee had denied appellant access to the child on several occasions.

In Holley v. Adams, 544 S.W.2d 367 (Tex.1976), David Adams filed suit to terminate the parent-child relationship between his former wife, Nanci Adams Holley, and their son. By the terms of the divorce decree, Adams had been named managing conservator of the child and Mrs. Holley had not been required to pay child support. One ground asserted by Adams as basis for termination was that Mrs. Holley had failed to support her child in accordance with her ability during a period of one year ending within six months of the filing of the suit for termination. Between 1970 and 1975, Mrs. Holley sent a total of $100.00 for the support of her son; she purchased and paid premiums for a health insurance policy covering her son; and she sent an assortment of gifts and toys to her son. From 1970 to 1972, Mrs. Holley was a housewife without outside employment. She obtained employment in 1972, earning a gross income of $500.00 monthly. Mrs. Holley declared voluntary bankruptcy in 1973. Mr. Holley received $300.00 monthly in education benefits and worked part-time. Under these facts the Supreme Court held that Mrs. Holley failed to support her child in accordance with her ability. The facts in the case at bar are much stronger in support of the jury's finding of failure to support the child in accordance with appellant's ability than were the facts in Holley.

Rejecting all evidence contrary to the jury's finding and considering only the facts and circumstances that tend to support that finding, Renfro Drug Co. v. Lewis, supra, we are of the opinion that the jury's finding that appellant failed to support the child in accordance with his ability was supported by some evidence. We are of the further view that the finding is not so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King's Estate, supra.

Point of error three is that there is no evidence to support the jury's answer that termination of the parent-child relationship is in the best interest of the child. Appellant Does not attack this answer of the jury upon the basis of insufficient evidence.

As we understand Holley v. Adams, supra, the fact finder may consider a number of factors in determining whether termination is in the best interest of the child. Among other things, the fact finder may consider: (A) the desires of the child; (B) the emotional and physical needs of the child now and in the future; (C) the emotional and physical danger to the child now and in the future; (D) the parental abilities of the individuals seeking custody; (E) the programs available to assist these individuals to promote the best interest of the child; (F) the plans for the child by these individuals or by the agency seeking custody; (G) the stability of the home or proposed placement; (H) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (I) any excuse for the acts or omissions of the parent.

The child's maternal grandmother, Gloria Maclachlan testified that when appellant came to pick up the child for visitation, the child would pull back and declare that he did not want to go with appellant. Appellee's evidence was that the child was always upset and crying when she picked him up after visitation with appellant. When appellant screamed and cursed appellee in response to her request for support, the child was present and was "upset" by appellant's conduct.

Mrs. Maclachlan testified that on occasion she had witnessed appellant "under the influence" of drugs in the presence of the child. On one of these occasions Mrs. Maclachlan felt compelled to take the child from appellant's possession because appellant was ". . . very incoherent, and not in good enough shape to take care of this boy." On more than one occasion, appellant asked Mr. Maclachlan, in the presence of the child ". . . to take...