Smith v. Painter, 4115
| Decision Date | 28 October 1966 |
| Docket Number | No. 4115,4115 |
| Parties | Albert SMITH, Appellant, v. Larry Lon PAINTER et ux., Appellees. . Eastland |
| Court | Texas Court of Appeals |
Clayton, Kolander, Moser & Templeton, J. M. Kolander, Amarillo, Crenshaw, Dupree & Milam, Lubbock, for appellant.
Miller, Sanders & Baker, Oth Miller, Amarillo, for appellees.
To the marriage untion of Larry Lon Painter and Patricia Ann Painter was born a male child, Larry Lynn Painter. Mrs. Painter died. Mr. Painter married Cora Painter and she adopted the five year old child, Larry Lynn. Albert Smith, the father of the deceased mother of Larry Lynn, filed this suit for a mandatory injunction ordering the defendants to permit Larry Lynn to communicate with and visit him at reasonable times and places and asking that the defendants be enjoined from interfering, prohibiting or preventing communications and visitations between Larry Lynn and his grandfather.
The court granted the defendants' motion for a summary judgment and the plaintiff has appealed. His points are as follows:
'FIRST POINT
The Trial Court erred in holding that there was no evidence to go to a jury that it was to Larry's welfare and best interests that he be permitted to continue his visits and his natural relationship with his grandfather.
The Trial Court erred in holding, if he did, that the record conclusively discloses that it is to the welfare and best interest of Larry that he not be permitted to visit or continue his natural relationship with his grandfather.
The Trial Court erred in holding, if he did, that the court did not have jurisdiction of the present suit.'
Appellant pleaded that the appellees had refused to allow him to communicate or visit with his grandchild, Larry, and thereby deprived him and his grandchild of their civil rights guaranteed by the Constitution of the United States.
In support of his motion for a summary judgment, the appellee filed an affidavit which, among other things, contained the following:
'Since this adoption was final we have refused to permit the Plaintiff ALBERT SMITH to visit with LARRY LYNN PAINTER, for the reason that his conduct toward LARRY LYNN PAINTER has created grave disciplinary problems with the child and for the further reasons that it interrupted the family harmony of our other two children which in turn was affecting my present marriage union and prevented a wholesome atmosphere for myself, my wife and our three children.'
This is not a child custody case. It involves the legal right, if any, of the grandfather to visit and communicate with his grandchild . No Texas case has been cited and we have failed to find one which controls the disposition of this case. There...
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Brotherton v. Boothe, 13925
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