Neal v. Medcalf, 4834

• Decision Date: 31 October 1951
• Docket Number: No. 4834,4834
• Citation: 244 S.W.2d 666
• Parties: NEAL et vir. v. MEDCALF.
• Court: Texas Court of Appeals

Page 666

244 S.W.2d 666

NEAL et vir. v. MEDCALF.

No. 4834.

Court of Civil Appeals of Texas, El Paso.

Oct. 31, 1951.

Scarborough, Yates, Scarborough & Black, Abilene, Rawlins & Linne, Monahans, for appellants.

Noel D. Cason, Midland, R. E. Coon, Kermit, for appellee.

PRICE, Chief Justice.

This is an appeal from a judgment in a child custody case. On August 7, 1950, the District Court of Winkler County entered a divorce decree dissolving the bonds of matrimony theretofore existing between Eunice Medcalf and L. R. Medcalf. The decree divided the custody of their female minor child, Billy Medcalf, between the parties. Each party was to have the custody for six months of the year. L. R. Medcalf was to have custody for the first six months and his wife for the next, the custody to so alternate from year to year. After the decree had become final Eunice Medcalf intermarried with Phillip Neal. On or about the expiration of the first six months subsequent to the entry of the decree of divorce L. R. Medcalf, hereinafter referred to as plaintiff, filed this action against Eunice Neal, joining her husband pro forma, to modify the decree of divorce so as to award him the exclusive custody of the said Billy Medcalf. For grounds for the change of custody and modification of decree he averred the situation is so changed with respect to said defendant Eunice Neal and her home since the time of the aforesaid divorce that it would be for the best interest and welfare of Billy Medcalf that the said minor child be placed by the court in the permanent care and custody of this plaintiff. He averred in substance that since the custody of the child had been awarded to him he had faithfully and efficiently discharged each and all of the duties incumbent upon him by such custody. He further averred that since the aforesaid divorce, defendant Eunice Neal has remarried, and is now the wife of Phillip Neal, who also resides in Winkler County, Texas, but is employed in Ector; the said Phillip Neal is the father of two minor children by a former marriage, namely Phillip Rex Neal, Jr., a boy now about three years of age, and Perry Neal, a boy about two years or age. Defendant's home is now dominated by her new husband, Phillip Neal, who is but slightly known by the aforesaid minor child, Billy Medcalf; upon plaintiff's information and belief Phillip Neal does not maintain a home for the above mentioned children of his own blood, but said children of tender years have been and are at the pendency of this suit in the home of relatives in another state. Phillip Neal has an entirely different outlook on morals, family obligations, family connections, religion and care and maintenance of a home than that enjoyed now by the said Billy Medcalf; she has been reared in a different home atmosphere from that of the defendant Phillip Neal; in a home such as defendant's she would be subjected to the will of a stepfather who has evidenced no outstanding love and affection for his own two sons; said Billy Medcalf can no longer receive the undivided family love and affection from her mother Eunice Neal in any home said defendant might offer, but must share her mother's affections with two other children and a new husband; the child is now of an age which cannot readily grasp nor understand the necessity of moving from one parent's home to another parent's home each six months; her opportunity for physical and spiritual education and growth in the home of Phillip Neal must be shared with two other minor children while in the home of plaintiff she would have an opportunity for full development and closer personal supervision. It is further averred in substance that the best interest and welfare of the child would be best subserved by her remaining in the home of plaintiff, that at her age she needs to feel security, which feeling of security cannot be obtained in the present decree of divided custody, as she is an age where her best interests can only be served by continuous love and care from the parents, which love she does not have to share with three strangers; further that the home of plaintiff, the care and attention and love which he could give her is a better atmosphere for the care and custody of said child than is the home of defendant. Defendant's answer was by special exceptions on the ground that plaintiff's petition is insufficient for the reason that the custody of the minor had been determined by final judgment of the court and such petition does not set up any facts which would entitle plaintiff to have same relitigated; further that the petition is insufficient because it does not allege any facts showing any changed condition which would entitle the plaintiff to relitigate the custody of the child. Defendants further specially plead that the decree rendered on August 7, 1950, was binding on all the parties.

The case came to trial on February 23, 1951, before the court without a jury. The court overruled defendants' special exception, to which action of the court defendants excepted. The judgment recites the court heard the evidence and argument of counsel, and having questioned the parties jointly and the minor child, Billy Medcalf, separately in chambers, is of the opinion that sufficient evidence has been developed reflecting a changed condition such as did not exist at the time of the divorce judgment rendered by this court on August 7, 1950. It is ordered and adjudged that the full care and custody of the aforesaid minor child, Billy Medcalf, be vested in the plaintiff L. R. Medcalf, father of the minor child. The judgment gave the right of visition to Mrs. Eunice Neal. From that judgment the defendants have appealed.

Appellants brief this case on one point of error-evidence being insufficient to show a changed condition, the trial court erred in modifying a former judgment. It may be that the plaintiff's petition does not state sufficient legal grounds for the modification of the former decree of divorce in regard to the custody of the minor, Billy. No point is made on this. It is probably immaterial, in a child custody case pleadings are perhaps of no great importance. As has been said, it is more a matter of evidence than pleading. Williams v. Perry, Tex.Com.App., 58 S.W.2d 31; Wilson v. Underhill, Tex.Civ.App., 131 S.W.2d 19; reversed on other grounds Wilson v. Wilson, 137 Tex. 528, 155 S.W.2d 601; Roberts v. Tippett, Tex.Civ.App., 239 S.W.2d 859. The welfare of the minor involved is the prime consideration. Stevens v. Denton, Tex.Civ.App., 195 S.W.2d 796; Haymond v. Haymond, 74 Tex. 414, 12 S.W. 90.

The judgment of August 7, 1950, authoritatively decided and established that at that date each party to the litigation was suitable and fit for the custody of the child, and unless there has been a change of condition...