Mecke v. Grubbs
| Decision Date | 05 April 1954 |
| Docket Number | No. 6399,6399 |
| Citation | 278 S.W.2d 404 |
| Parties | Roy MECKE, Appellant, v. R. A. GRUBBS et ux., Appellees. |
| Court | Texas Court of Appeals |
Minor L. Morgan and Ralph W. Currie, Dallas, for appellant.
Ungerman, Hill & Ungerman, Leonard E. Hoffman, Jr., and Wm. Madden Hill, Dallas, for appellees.
This is a child custody case filed by appellees, R. A. Grubbs and wife, against appellant, Roy Mecke. The child in question is Roy Christopher Mecke. Roy Mecke and wife, Helen Grubbs Mecke, are the parents of said child. Helen Grubbs Mecke is the daughter of appellees. Roy Mecke and Helen Grubbs were married on March 14, 1951, and the baby in question was born to this union on December 18, 1952. Roy Mecke was in the United States Air Force. His service was to end in February, 1954. On or about March 24, 1953, Helen Grubbs Mecke was arrested in Fort Worth, Texas, and charged with robbery of a national bank. At the time Helen was arrested she had the baby with her and after her arrest the baby was taken by the officers to Lena Pope Home in Fort Worth.
Immediately after learning of the arrest of his wife, the appellant communicated with the appellees and they all three went to the Lena Pope Home and got the baby and they all returned to the home of appellees. The baby has remained in appellees' home ever since.
On or about July 13, 1953, Helen Grubbs Mecke was convicted of bank robbery and sentenced to five years in the reformatory for women at Alderson, West Virginia. It was the plan or discussion between the appellant and appellees after the arrest of Helen Mecke that the appellees would take care of the baby and the appellant would use his money, time, and efforts preparing for the defense of Helen Mecke. After the conviction of Helen Mecke, the appellant went to his home in New York to talk to his father, attorneys, his pastor, and friends to try to get help in securing aid for his wife, Helen. Not being able to secure any relief for his wife, he returned to his base at Fort Worth and called appellees, telling them he wanted to come and get his baby. Appellee, Mrs. Grubbs, told him to come on and get the baby and that she would have the baby and its things ready. When appellant arrived at the appellees' home, the appellees had changed their minds and would not let him have the baby. Immediately thereafter the appellees filed this suit in the form of an injunction seeking to restrain the appellant from interfering with the custody of such child and also sought to have the child's custody left with appellees. Appellant answered and sought an action of habeas corpus against appellees requesting the delivery of said baby to the appellant. Upon a final hearing upon its merits, the court granted judgment vesting custody and possession of said child with the appellees and granted appellant the right to visit such child and to have such child with him away from the house of appellees, but in Dallas, Texas, every Sunday between the hours of 2:30 o'clock p. m. and 5:30 o'clock p. m. From this judgment appellant has perfected this appeal.
Since it is the contention of appellees that this court does not have jurisdiction of this appeal we will first discuss this point. Appellees contend that this is an appeal from an interlocutory order and cites Goodman v. Goodman, Tex.Civ.App., 224 S.W. 207, as an authority. In the Goodman case the order was issued as to the temporary custody of the child during the pendency of the suit for divorce and until a final hearing. (Emphasis ours.) In this case at bar the order was entered upon a final hearing and was not an interlocutory order. If appellees' contention be correct, one could never appeal from an order granting custody of a child because under changed conditions the custody of a child may always be changed. Appellees' contention as to this court not having jurisdiction is overruled.
Appellant presents his appeal upon thirteen assignments of error. His first assignment is that, 'The evidence does not support the judgment of the court awarding custody of the child to the grandparents, Grubbs and wife.' The law seems to be well settled in this state that the parents of a child have a paramount legal right to the care, custody and control of their child or children as against all other persons unless they each are legally unfit persons to have such child. Starnes v. Jost, Tex.Civ.App., 228 S.W.2d 563; Carter v. Cade, Tex.Civ.App., 236 S.W.2d 829. It is to be noticed here that this is not a contest between a man and his wife over the custody of their child. The mother of the child was in no way a party to this suit.
It is unfortunate that the custody of the child was apparently taken from its father solely because of errors of the mother of the child. She was not a party to this suit and neither was the child of an age when he could have a voice in the proceedings. There is nothing in the record to show...
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Kessel v. Leavitt
...adoptive grandmother relief on federal due process claim because state remedies had not been adequately exhausted); Mecke v. Grubbs, 278 S.W.2d 404 (Tex.Civ.App.1954) (denying grandparents relief upon claim of interference with custody of grandchild by child's father where grandparents had ......
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Neely v. Neely
...not rebut the presumption. See Guillott v. Gentle, 467 S.W.2d 521 (Tex.Civ.App.1971, writ ref'd n.r.e.); Mecke v. Grubbs, 278 S.W.2d 404, 406 (Tex.Civ.App.1954, writ ref'd n.r.e.). We conclude that the non-parent must produce evidence affirmatively showing a detrimental effect upon the chil......
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Guillott v. Gentle
...their granddaughter, but this fact alone will not justify nor authorize a court to deprive a parent of the custody of his child. Mecke v. Grubbs, 278 S.W.2d 404 (Tex.Civ.App., writ ref. n.r . e., We are mindful that in this type of case the judgment of the trial judge should be reversed onl......
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Moran v. De Llano, 13429
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