Quarles v. Quarles, 16437

• Decision Date: 08 January 1965
• Docket Number: No. 16437,16437
• Citation: 386 S.W.2d 337
• Parties: Ava Nell QUARLES, Appellant, v. N. K. QUARLES, Appellee.
• Court: Texas Court of Appeals

Page 337

386 S.W.2d 337

Ava Nell QUARLES, Appellant, v. N. K. QUARLES, Appellee.

No. 16437.

Court of Civil Appeals of Texas, Dallas.

Jan. 8, 1965.

Rehearing Denied Feb. 5, 1965.

Bruce Graham, Greenville, for appellant.

G. C. Harris, Greenville, for appellee.

WILLIAMS, Justice.

N. K. Quarles brought this suit in the district court against his wife, Ava Nell Quarles, seeking a divorce, distribution of the community property, and custody of three minor children of the marriage, ages 14, 10 and 3, alleging 'that said children are with the plaintiff and it would be to the best interest and welfare of said children that their custody be awarded to plaintiff upon hearing hereof.' Ava Nell Quarles responded to this suit with her answer and cross-action wherein she sought a divorce from N. K. Quarles, a division of the community estate, and asked that custody of the three minor children be awarded to her. She alleged 'that cross-plaintiff is a proper person to have the custody of their three minor children and asks that upon a final hearing that she be granted such custody.' Following a trial before the court and a jury special issues were answered by the jury in favor of both plaintiff and cross-plaintiff on the issues of divorce. In response to questions propounded to them concerning custody of the three minor children the jury found that (3) N. K. Quarles is a proper and fit person to be entrusted with the care and custody of the minor children; (4) that Ava Nell Quarles was not a proper and fit person to be entrusted with the care and custody of the minor children; and that (5, 6 and 7) the welfare and best interest of the three minor children would be best served by awarding their care and custody to the father, N. K. Quarles. Based upon this jury verdict the trial court awarded a decree of divorce to Ava Nell Quarles, ordered a division of the community property, and awarded the care and custody of the three minor children to the father, N. K. Quarles, with rights of reasonable visitation to the mother. Ava Nell Quarles appeals to this court complaining only of that part of the trial court's judgment awarding custody of the three minor children.

In her first three points on appeal, grouped for presentation, appellant argues that the trial court erred (1) in placing the burden of proof on the mother, Ava Nell Quarles, in Special Issues 4, 5, 6 and 7 relating to custody; (2) in instructing the jury that the rights of the father and mother are equal with respect to their children; and (3) in refusing to give to the jury a requested instruction to the effect that ordinarily custody of a girl of tender years is best served by an award to the mother.

In Special Issue No. 4 the trial court asked the jury to find from a preponderance of the evidence whether Ava Nell Quarles is a proper and fit person to be entrusted with the care and custody of the minor children of the parties. The jury replied 'No'. In Special Issues Nos. 5, 6 and 7 the court separately submitted the question to the jury to 'find from a preponderance of the evidence whether the welfare and best interest of the minor child will best be served by awarding the care and custody of such minor to the father or to the mother.' In each instance the jury found 'father'. We do not agree with appellant that the court erroneously palced the burden of proof upon her in these issues. It is an elementary rule of law that the party asserting an affirmative of an issue is obligated to establish it by a preponderance of the evidence. 31 Tex.Jur.2d 737, Sec. 157. In this case appellant, in her cross-action, alleged that she, and not appellee, was a proper person to have the custody of the minor children. Special Issue No. 4 submitted that very question to the jury, properly placing the burden of proof upon appellant to establish the affirmative thereof. In Special Issues 5, 6 and 7 the court so worded the issues to properly place the burden of proof on both the mother and the father, each of whom had affirmatively sought custody.

As a part of the charge, the trial judge instructed the jury:

'You are further instructed that the rights of the father and mother are equal with respect to the custody of their children, but that the welfare of the child or children is of controlling importance, and it will be your duty to find according as you may believe from a preponderance of all the evidence as to what will be for the best welfare and good of the child or children, and you will answer such issues as you may find the facts to be, answering father or mother as indicated.'

We are of the opinion that this instruction is legally correct and overrule appellant's objection thereto. In re Boyd, Civ.App., 157 S.W. 254; Gully v. Gully, Civ.App., 184 S.W. 555; Sanders v. Treend, Civ.App., 266 S.W.2d 235; 20 Tex.Jur.2d 653, Sec. 326, and cases there cited. Nothing is more firmly established in our law that the paramount question to be decided in custody matters is the best interest of the child and any right of a parent must yield to such welfare and best interest. The statute itself, Art. 4639a, Sec. 1, V.A.C.S., provides that the decree and order relating to custody must be based upon the best interest of the minor. In this connection see Erwin v. Erwin, Civ.App., 344 S.W.2d 923; Huddleston v. Huddleston, Civ.App., 346 S.W.2d 931; Bell v. Hoskins, Civ.App., 357 S.W.2d 585; Robinson v. Robinson, Civ.App., 359 S.W.2d 215; Meyer v. Meyer, Civ.App., 361 S.W.2d 935.

As a part of her objections to the submission of Special Issue No. 7, inquiring concerning the proper custody of the three-year-old girl, Ann Quarles, appellant requested the court to give the following instruction:

'You are charged as a part of the law in this...