Pearson v. Pearson

• Court: Texas Court of Appeals
• Writing for the Court: Murray
• Citation: Pearson v. Pearson, 195 S.W.2d 188 (Tex. App. 1946)
• Decision Date: 15 May 1946
• Docket Number: No. 11605.,11605.
• Parties: PEARSON v. PEARSON.

195 S.W.2d 188

PEARSON v. PEARSON.

No. 11605.

Court of Civil Appeals of Texas. San Antonio.

May 15, 1946.

Rehearing Denied June 5, 1946.

Appeal from District Court, Thirty-Seventh District, Bexar County; C. K. Quin, Judge.

Action by Dorothy L. Pearson against John F. Pearson for divorce. From a judgment modifying that part of original judgment fixing custody of the two minor children of the parties, the defendant appeals.

Reversed and remanded.

Clarence R. Boatwright, Morriss & Morriss, and Leonard Brown, all of San Antonio, and Evans J. Adkins, of Brady, for appellant.

Schlesinger & Goodstein, of San Antonio, for appellee.

MURRAY, Justice.

On February 20, 1942, Dorothy L. Pearson was granted a divorce from John F. Pearson, by a judgment of the District Court of Bexar County, 37th Judicial District, Hon. Raymond Edwards presiding. Custody of their two minor children was awarded as follows:

"It is further ordered by the Court that the care, custody and control of their two minor children, Lee Franklin Pearson, aged 9 years and Harold Pearson, aged 4 years, shall be awarded to the plaintiff and the defendant, as follows, to-wit: that the defendant, John F. Pearson, shall have the care, custody and control of said children, during the months of March, April, May, June and August; that the plaintiff shall have the care, control and custody of said minor children during the months of September, October, November, December and January and until about the first of February during each and every year during their minority. Provided that at any time said children or either of them is in school, no change in their custodies shall take place until the close of that semester, so as not to interfere with their school work and when a semester closes at any time other than the first of the month, transfer of custody shall pass at that time and not on the 1st as above set forth."

On February 10, 1944, Mrs. Pearson was denied a modification of the original decree at a hearing before Hon. C. K. Quin, Judge of the 57th District Court. In her application for a modification of the original judgment Mrs. Pearson alleged as follows:

"Plaintiff further states that the defendant has no permanent place of abode, and roves and roams all over the country looking for jobs, dragging the children with him when he has them in his custody. That defendant has had positions as a country school teacher, and in off times does carpentry work. That this year he started teaching at Raymondville, where he taught two months, then when next heard from he was in Bexico, then in Harlingen, and now when heard from he was in Handford, State of Washington. That he lived in Gatesville part of 1942, in Waco part of the summer of 1942. In 1943, in the summer, he had the children in Eden, with their grandmother, and their father, Mr. Pearson, was in Brady. That in July, 1942, he took the children, Lee Franklin and Harold, to Colorado, where they lived in a cellar, and also stayed in a car on the side of the road.

"Plaintiff further states that he neglects to let her know where the children are, and sometimes for over a month she had no word from them. That when she has the children he comes in at all hours of the day or night, taking them out of their beds. That he takes the children out of school before mid-term, and before school ends. That he travels over the country with them, dragging them around.

"That Lee Franklin was sick for two months after coming home from Colorado, and had a little temperature for almost four weeks. His head hurt him, and the Doctor said it was from taking him out of such a high altitude, and bringing him to a low altitude.

"That when he had the children in Eden with their grandmother, he only saw the children week ends. That now he wants me to send the children by train to Handford Washington. The youngest child, Harold, is only six years of age, and the other, Lee Franklin, is 11 years old, and he says he does not want to go with his `Dad.'

"Plaintiff further states that the defendant, John F. Pearson, has not complied with the orders of the Court, as set out in the judgment, that he has taken the children out of school, and not let them complete the school term, or semester, and that he has not sent the allotment allowed by the court for their support while with her, that he has paid no allowance for two months now, $20.00 per month; that the life the children lead, while with him, running wild, not going regularly to school, living in cellars, on the side of the road in a car, and in old run-down houses, where paper has to be put over cracks in the walls to keep out the wind and the cold, is bad for their health, morals, and education.

"That plaintiff has worried over the whereabouts of the children, not knowing where they were, for four weeks or more, one time, and several weeks other times, until she has nearly become ill; for the children need a mother's care who will look after them better than any man can do.

"Mrs. R. F. Pearson, mother of the defendant told defendant that he should leave the children with their mother, as children should have a home, and not be dragged around over the country all the time.

"That the divided care, custody and control over the said children is detrimental to their best interests and welfare."

On November 2, 1945, at another hearing in the 37th District Court, Hon. C. K. Quin presiding, the original judgment was modified by a decree of that date, wherein the custody of the two children was awarded as follows:

"It is, therefore ordered, adjudged and decreed that the judgment heretofore rendered in cause No. F-5037, in the District Court for the 37th Judicial District of Bexar County, Texas, and styled Dorothy L. Pearson vs. John F. Pearson, be, and the same is hereby modified to the extent that the Plaintiff, Dorothy L. Pearson, shall have and she is hereby granted the care, custody and control of the minor children, Lee Franklin Pearson and John F. (Harold) Pearson, Jr., for the entire scholastic year, that is, from the beginning of the school term until the termination thereof, and that the Defendant, John F. Pearson, shall have and he is hereby granted the care, custody and control of said minor children during the school vacation period, that is, from the termination of the school term until the resumption of same."

From that judgment John F. Pearson has prosecuted this appeal.

Appellant's first contention is that the trial court erred in failing to find as to whether or not there were changed conditions arising since the two prior judgments, which required a modification of the prior judgments awarding the custody of the two minor children of appellant and appellee.

The trial judge made fact findings and conclusions of law as follows:

"Findings of Fact

"1. I find that the Plaintiff, Dorothy L. Pearson, was formerly the wife of the Defendant, John F. Pearson, having been divorced from him on or about the 20th day of February, A.D., 1942, in Bexar County, Texas.

"2. I find that there were two children born as issue of said marriage, namely, Lee Franklin Pearson, who is now about thirteen years of age, and John F. (Harold) Pearson, Jr., who is now about nine years of age.

"3. I find that under the terms of the Decree of Divorce, the following provision was made with reference to the custody of said children:

"`And it is further Ordered by the Court, that the care, custody and control of their two children, Lee Franklin Pearson, age nine (9) years, and Harold Pearson, age four (4) years, shall be awarded to the Plaintiff and the Defendant, as follows: That the Defendant, John F. Pearson, shall have the care, custody and control of said children during the months of March, April, May, June and August; that the Plaintiff shall have the care, control and custody of said minor children during the months of September, October, November December, January and until about the 1st day of February during each year, and every year during their minority. Provided, that at any time, said children or either of them is in school that no change in the custodies shall take place until the close of that semester, so as not to interfere with their school work, and when a semester closes at any time other than the first of the month, the transfer of custody shall pass at that time and not on the first as above set forth.'

"4. I find that the Plaintiff has continuously resided in the same house in San Antonio, Bexar County, Texas, since the divorce was granted, and that the children of the parties have at all times attended the same school, which is located a short distance from their home, during the periods of time that the children have been in the custody of their mother.

"5. I find that this school, St. Michael's School, is a good school and the children make good progress in their studies and are happy and contented at said school.

"6. I find that the Plaintiff has been steadily employed at Kelly Field and earns approximately One Hundred and Fifty Dollars ($150.00) per month.

"7. I find that the Plaintiff is devoted and attentive to the children, prepares their meals, washes and irons their clothes, patches and darns, performs all her household duties, and is a fit and proper person to have the custody of said children.

"8. I find that the Defendant does not have steady or stable employment, in that he has held three or four different positions during the past two years, and has divided his time between engaging in construction work and teaching school, and his employment has shifted over a wide portion of the Western part of the United States, and that the children have been compelled to accompany him upon each change of residence.

"9. I find that on or about the month of February, 1944, the Defendant, by virtue of the decree of divorce hereinabove set out, took the children to Pasco, Washington, which is approximately 2000 miles from San Antonio.

"10. I find...