Salvaggio v. Barnett, 12401

• Decision Date: 17 April 1952
• Docket Number: No. 12401,12401
• Citation: 248 S.W.2d 244
• Parties: SALVAGGIO v. BARNETT et vir.
• Court: Texas Court of Appeals

Page 244

248 S.W.2d 244

SALVAGGIO v. BARNETT et vir.

No. 12401.

Court of Civil Appeals of Texas, Galveston.

April 17, 1952.

Tom S. Williams, San Antonio, for appellant.

Cutrer & Cook, Houston, W. Lawrence Cook, Jr., Houston, of counsel, for appellees.

CODY, Justice.

This is a formal habeas corpus proceeding instituted by Mrs. Barnett, joined by her husband, against Lee Salvaggio, her former husband, seeking the custody of her daughter, Judy Suzzan Salvaggio, who was born August 14, 1948, of her former marriage with Mr. Salvaggio. The exclusive custody of the child was awarded to Mr. Salvaggio in the divorce proceedings by the 98th District Court of Travis County. There was no finding by the court in that action that the present Mrs. Barnett was not a fit person to have the custody of her daughter.

After the divorce Mr. Salvaggio moved to Houston and both he and his child lived with his parents until he married his present wife on April 6, 1951. In the meanwhile Mrs. Barnett married her present husband and thereafter instituted this suit in a Civil District Court of Harris County and from the judgment of the court awarding her custody of the child, based upon the finding of changed conditions, Mr. Salvaggio prosecutes this appeal. At his request the court filed conclusions of fact and law. Therefrom it was made to appear that at the time of the divorce Mrs. Barnett's situation, which forced her to work as a waitress in a restaurant in order to support herself, would not admit of the assumption by her of the care of her infant daughter nor permit her to give the child a mother's attention. It further appeared therefrom that since that time Mrs. Barnett has married her present husband and they have established a home and that she has recently become the mother of a son, the half-brother of Judy, and is now situated in all respects so that she can now take over the custody of Judy and lavish upon her all of the attention which a mother's love can inspire.

The court further found: '* * * During all the time Lee Salvaggio has had the custody of the child he has cared for her with kindness and attention, and has provided a home for the child and also has adequately provided for all her physical needs. Both Lee Salvaggio and his present wife are devoted to the child and have given it love and care. Lee Salvaggio has only the one child who lives with him and his wife in their own home separate and apart from that of Lee Salvaggio's parents. Lee Salvaggio is a printer by trade and earns $80.00 per week.

'Lee Salvaggio is a fit and proper person to have the custody of his child except that he and his present wife, because of their belief that the Bible requires it, propose to teach Judy Suzzan Salvaggio that it is wrong to salute the American Flag, and that it is wrong to celebrate and exchange gifts at Christmas and that it is wrong to kill others even in defense of the United States. Lee Salvaggio did not formerly follow such beliefs and was in the late war during which time he was in several battles and saluted the flag.

'Conclusions of Law

'The Court is of the opinion that conditions affecting the welfare of Judy Suzzan Slavaggio since the rendition of the decree of divorce have materially changed so that it is now to the best interests of said child that her natural mother, Betty James Barnett, should have the custody of said child. (The father of said child, Lee Salvaggio, should have the right to visit said child.) * * * The changes of condition affecting the welfare of such child include the change in the financial circumstances of Betty James Barnett and her ability to provide a suitable home for her child. However, in arriving at its conclusions, the Court is primarily influenced by the proposed teachings of Lee Salvaggio and his present wife with reference to saluting the flag, fighting in defense of the United States and celebration of Christmas. The Court judicially knows that the overwhelming majority of other children in this state and in the community where Judy Suzzan Salvaggio will reside and go to school will be taught to salute the American Flag, to defend the country against enemies, and will exchange gifts and celebrate Christmas. The Court concludes that such fact would produce problems and conflicts adversely affecting the welfare of such child. Without in any way infringing upon the right of Lee Salvaggio and his present wife to interpret the Bible as they see fit, the Court is of the opinion that as between the natural parents of such child, the best...