Smitheal v. Smitheal

• Decision Date: 24 January 1975
• Docket Number: No. 17572,17572
• Parties: Gertrude A. SMITHEAL, Appellant, v. William Toby SMITHEAL, Appellee.
• Court: Texas Court of Appeals

Page 842

518 S.W.2d 842

Gertrude A. SMITHEAL, Appellant, v. William Toby SMITHEAL, Appellee.

No. 17572.

Court of Civil Appeals of Texas,

Fort Worth.

Jan. 24, 1975.

Rehearing Denied Feb. 21, 1975.

Robert L. McDougal, Denver, Col., for appellant.

Garland Flowers, Fort Worth, for appellee.

OPINION

BREWSTER, Justice.

William Toby Smitheal sued his wife, Gertrude Smitheal, for a divorce, and for custody of a child, Edna Smitheal. Mrs. Gertrude Smitheal cross-acted for a divorce and for custody of the child. The case was tried non jury. The trial court rendered a judgment which granted a divorce to each party; the custody of the child, Edna Smitheal, was awarded to Edna Holderness, the paternal grandmother (who was not a party to the suit); the child's mother, Gertrude Smitheal, the appellant here, was granted visitation rights as follows: she was to have the child with her during the summer months from one week after the closing of the public schools of the City of Fort Worth until one week before the opening of the Fort Worth Public Schools, and in addition thereto is to have the child with her for one-half of the Christmas holidays, and any other weedend when she is able to be in the Fort Worth area provided that it is no more than one weekend visit per month. The mother was ordered to pay $15.00 a week child support. This is an appeal by the mother, Mrs. Gertrude Smitheal, from that decree. The trial court did not file findings of fact and conclusions of law and he was not requested to file any. The father did not appeal.

We affirm.

The first point of error is that the court erred in awarding the custody of the child to Edna Holderness, the paternal grandmother.

We overrule that point.

Appellant's argument is that the court had no legal right to award the custody of her daughter to the paternal grandmother in this case because she, the mother, wanted the child's custody and was not found by the trial court to be an unfit person to have such custody. She argued that in such a case as that it is mandatory that the court award the custody of the child to its parent.

This contention is not the law in Texas. The general rule is that the legal right to the custody of a child rests in the parents. But the courts can terminate that right and award custody of a child to a third party without first adjudging the parents to be unfit, where it is in the best interests of the child to do so. See Gibson v. Hines, 511 S.W.2d 546 (Waco, Tex.Civ.App., 1974, no writ hist.); McBrien v. Zacha, 351 S.W.2d 101 (Dallas, Tex.Civ.App., 1961, ref., n.r.e.); and Scozzari v. Curtis, 398 S.W.2d 819 (Fort Worth, Tex.Civ .App., 1966, no writ hist.).

And in instances where the parents have voluntarily surrendered custody of their child to a third person and left its custody there for a considerable period of time, as was the case here, and later seek to regain the custody of that child, the primary question to be decided is what wound be for the best interest of the child. Even if a parent was a fit and proper person to have custody he could still lose such a case if it was in the child's best interest that its custody be placed with a third person. McBrien v. Zacha,supra; Lakey v. McCarroll, 134 Tex. 191, 134 S.W.2d 1016 (1940); Dunn v. Jackson, 231 S.W. 351 (Tex.Com.App., 1921, op. ad.); and Herrera v. Herrera, 409 S.W.2d 395 (Tex.Sup., 1966).

Another rule of law applicable in this case is that the decision in a child custody case is a matter that lies within the sound discretion of the trial court. The trial court's decision in the case will not be disturbed on appeal unless the record shows that the trial court abused its discretion in making the custody award. Carter v. Carter, 318 S.W.2d 471 (San Antonio, Tex.Civ.App., 1958, no writ hist.); Herrera v. Herrera, supra; Gibson v. Hines, 511 S.W.2d 546 (Waco, Tex.Civ.App., 1974, no writ hist.); and Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787 (1955).

In passing we will dispose of another contention that appellant urges in connection with her first point of error.

Article 4639, Vernon's Ann.Texas Civ.St., provides that, 'The court shall have power, in all divorce suits, to give the custody . . . of the children to either father or mother, . . ..'

She contends that the court's action in this divorce case in awarding the child's custody to the grandmother instead of to one of its parents was unlawful and should be set aside because it was in violation of that statute. We overrule that contention.

The following is from Lakey v. McCarroll, supra, 134 S.W.2d at page 1020: 'In spite of the fact that Article 4639 only mentions the father and the mother, it is settled that, under the statute just mentioned and under its constitutional and equity powers, a district court has power, in a divorce decree, to award the custody of the children of the marriage involved in the divorce action, to a third person, when the welfare of such children requires such action. (Cites cases.)'

And see 20 Tex.Jur.2d 660, Divorce and Separation, Sec. 331, for a number of other cases holding that appellant's contention is without merit.

No findings of fact or conclusions of law were filed in this non jury case by the trial court and the record does not show that any were requested. The law is, that where these facts are true, the appellate court must affirm the judgment of the trial court if it can be upheld on any legal theory that finds support in the evidence . Seaman v. Seaman, 425 S.W.2d 339 (Tex.Sup., 1968), and Crawford v . Boyd, 453 S.W.2d 232 (Fort Worth, Tex.Civ.App., 1970, ref., n.r.e.). In such a case the trial court's judgment implies that all necessary fact findings were made by the trial court in support of the judgment. And in determining whether there is any evidence to support the judgment and the implied findings of fact incident thereto, the appellate court can consider only that evidence that is most favorable to the issue and must disregard entirely that which is opposed to it. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950), and Crawford v. Boyd,supra.

With the above rules in mind we will proceed to set out some of the evidence in the case that tends to support the trial court's award of custody to the grandmother, Edna Holderness.

The plaintiff, William Toby Smitheal, is a black man. The defendant and cross plaintiff, Gertrude Score Smitheal, is a white woman. She is licensed to practice law in Colorado. In 1965 they both lived in Denver where she practiced law. In 1965 they started going together and having sexual intercourse and continued to do so often until their marriage in November, 1969. In 1968 Mrs. Smitheal told Smitheal that he was about to become a father--that she was pregnant. They then came to Fort Worth and stayed with his mother, Edna Holderness, who lived in Fort Worth. The child was born on November 14, 1968. The birth certificate showed the child's father to be William Theodore Smitheal. Two days after the child was born the mother brought the child to the paternal grandmother's home in Fort Worth. She had stayed there herself for the three months preceding the child's birth in order to keep people in Denver from knowing she was pregnant. The appellant and William Smitheal stayed at Edma Holderness' home about two days after the child was released from the hospital and then both got in a car and returned to Denver, leaving the child in the custody of Mrs. Edna Holderness at her home in Fort Worth. This occurred in November, 1968. Continually, from the child's birth to the present date, the child's home has been with this paternal grandmother. The mother did not want others to know she was having the child. Since its birth Mrs. Smitheal has come to Fort Worth two or three times a year to see the child. Smitheal could was marry the appellant before the child was born because he was already married. Mrs. Smitheal was his lawyer and when she procured Smitheal's divorce they went to Raton, New Mexico, and were married in about November, 1969. Mr. and Mrs. Smitheal did not reside together in Denver because she did not want her parents to know of this marriage. Smitheal and Edna Holderness each testified that Mrs. Smitheal had contributed very little money toward the child's upkeep since its birth. She did send it some second-hand clothes. She never offered to take the child back to Colorado until this suit arose. In November, 1972, Mrs. Smitheal came to Fort Worth to live, but she and Smitheal separated in January, 1973, and this divorce suit was filed. Smitheal and his mother have taken care of all of the child's needs--have done all the work. The mother has done no more for the child than to baby-sit and play with it while she was visiting. The paternal grandmother is 76. Her husband is 76. They live in a seven-room house in Fort Worth with their 22 year old daughter, a college student, and with their son, William Smitheal, the child's father. He is a high school graduate and lacks only 20 hours of having a college degree. Mrs. Smitheal, since sometime after the divorce suit was filed, has started claiming that William Smitheal was not the father of Edna Smitheal. She claims that an exconvict to whom she was not married, who did legal briefing for her, is the child's father. In the first pleading she filed in this case she stated that Smitheal was the child's father. Smitheal says she did not come to see the child from December, 1971, to the last of September, 1972. He was, during all that time, living at his mother's house and helping support and care for the child.

During the trial Mrs. Smitheal started contending that Smitheal was impotent--that he was incapable of having an erection. On other occasions she admitted that she had intercourse with him and that their sex relations were satisfactory. She sought by that testimony to bolster her contention that Smitheal was not the father of the child.

Smitheal testified that Mrs. Smitheal...