Moran v. De Llano, 13429

• Decision Date: 18 March 1959
• Docket Number: No. 13429,13429
• Citation: 323 S.W.2d 184
• Parties: Alfredo A. MORAN et al., Appellants, v. Manuel DE LLANO et ux., Appellees.
• Court: Texas Court of Appeals

Page 184

323 S.W.2d 184

Alfredo A. MORAN et al., Appellants, v. Manuel DE LLANO et ux., Appellees.

No. 13429.

Court of Civil Appeals of Texas, San Antonio.

March 18, 1959.

Rehearing Denied April 12, 1959.

Richard G. Morales, Laredo, Arthur Mitchell, Austin, for appellants.

Horace C. Hall, Laredo, Bobbitt, Brite & Bobbitt, San Antonio, for appellees.

W. O. MURRAY, Chief Justice.

This suit was instituted by Manuel De Llano and Inez De Llano, material grandparents of Sandra Judith Moran, a minor, born May 26, 1956, against Alfredo A. Moran, father of Sandra Judith Moran, and Aurelio Moran and Teodora Trevino de Moran, the paternal grandparents of the minor, seeking a writ of habeas corpus requiring the defendants to produce the child in court and after hearing have her custody awarded to them.

The cause was called for trial on February 19, 1958, at which trial the defendants other than the father, who was confined in a hospital, appeared and asked for a continuance, which request was granted, but, pending a further hearing, the court awarded the temporary care, custody and control of Sandra to her maternal grandparents, the plaintiffs herein. The mother of Sandra, Inez A. De. Llano Moran, was killed in an automobile and freight train collision in the early hours of January 1, 1958. The automobile was being driven at the time by Alfredo A. Moran, the husband of Inez and the father of Sandra, who was himself seriously injured in the collision.

A final hearing of the cause was begun on March 12, 1958, and after hearing much testimony the matter was taken under advisement by the trial court, at the request of attorneys, so that written briefs might be furnished by the attorneys and considered by the court. Thereafter, on August 1, 1958, judgment was rendered finding that Alfredo A. Moran, the father of Sandra, is not a fit person to have the care, custody and control of his daughter, Sandra, and that Manuel De Llano and Inez de la Garza De Llano, the maternal grandparents of Sandra, are fit persons to have the care, custody and control of said child.

The decree awards the permanent care, custody and control of Sandra to her maternal grandparents without any provision for the right of visitation of her father, from which judgment Alfredo A. Moran and his parents have prosecuted this appeal.

The trial court made findings of fact and conclusions of law at the request of appellants. Concerning the fitness of the father to have the custody and control of Sandra, the court found as follows:

'1. That Respondent Alfredo A. Moran was born in Laredo, Texas, on August 7, 1935, was twenty years old when he married the deceased mother of the child, and was twenty-two years old at the time this proceeding was instituted.

'2. That in offering to provide a home environment for his child, Alfredo A. Moran is dependent on the gratuity and sufferance of his own father and mother;

'3. That in his manifested plans to finish his education (which he left incomplete because he quit Texas A & M College after the first semester because he 'just did not like military life'), he is also dependent on the gratuity and sufferance of his father and mother;

'4. That in his present means of support he is totally dependent on the gratuity and good-will of his father; and in his future means of support he is to a large extent dependent on the gratuity and goodwill of his father;

'5. That while he is possessed of valuable personal attributes such as personality, sociability and good fellowship, he has not reached and lacks that degree of maturity necessary to undertake the duties, fulfill the obligations and discharge the responsibilities of the head of a family with a fair chance of success;

'6. That he lacks that degree of prudence whereby the head of a family budgets and limits his own personal recreational expenses in order adequately to provide for those dependent upon him '7. That he is intemperate, or at least has a weak character unable to resist the excessive use of intoxicating liquors when the occasion arises;

'8. That while a number of witnesses consider him a good worker and possessed of good working habits, his job has been always under the personal supervision of his father and he has yet to show such good working habits on his own;

'9. That he has an inherent or developed tendency, or a weakness to let things ride along, in depending upon others (his in-laws, his father, his brother), or receiving from them pecuniary and material assistance for his personal and family needs;

'10. That while the tragic death of his wife may have created an overbearing yearning and longing for the surviving child, it is doubtful, judging by his pattern of behavior prior to the tragedy, whether such feelings will remain at such peak so that his own personal wants and desires be subrogated to the needs and wants of the child during these crucial years of its life;

'11. That while his own near-death experience in the accident may have shocked him into a sense of reality as to his own future and that of his child, his plans for the future are hazy and wishful, and to a large extent dependent on his employer (to change working hours so to spend more time with the child) and on his father (for material and financial assistance to finish his education, provide home, loans, job);

'12. That while at this time he manifests no plans to marry, if he does not marry he remains dependent upon his father and mother to provide a home environment for the child; and if he does marry, a new home environment is ahead for the child with all its inherent risks and uncertainties;

'13. That a young man of 23 is totally unsuitable to rear, care for and minister to the needs and wants of a female child of tender years.'

Other findings were made which pertain to the relative fitness of the paternal...