Tapal v. Tapal, 287
| Decision Date | 19 November 1969 |
| Docket Number | No. 287,287 |
| Citation | 448 S.W.2d 560 |
| Parties | Joseph John TAPAL, Appellant, v. Sandra Lynn TAPAL, Appellee. . Houston (14th Dist.) |
| Court | Texas Court of Appeals |
Mabel Grey Howell, Houston, for appellant .
C. Pearce Schaudies, Harlingen, for appellee.
Suit for divorce and child custody brought by the appellee, Sandra Lynn Tapal, against appellant, Joseph John Tapal. The date of marriage was June 12, 1964 and their son, Joseph John Tapal, III, the only child born of this union was born on January 1, 1965. Appellee's original suit for divorce and child custody was filed on October 17, 1966 and thereafter appellant filed a cross-action for divorce and for custody of his minor child.
At trial the husband contended that his wife had committed adultery with William Fortune. This allegation was vigorously denied by the wife. There was both circumstantial and direct evidence in the record from which the jury might have determined that this allegation was well founded. It does not appear, however, that an issue on adultery of the wife was requested by the husband and such issue was not submitted to the jury.
The case was tried to a jury which found both the husband and the wife guilty of excesses, cruel treatment and outrages toward each other as to render their further living together insupportable. The jury further found that the welfare of the minor child would be best served by his custody being awarded to the mother.
After motions for judgment were filed, the court rendered judgment on October 2, 1967. At such time the court only evidenced its action by an entry on the docket and neither attorney of record submitted a written judgment for approximately sixteen months thereafter. It was not until February 28, 1969 that the written judgment was signed and entered by the court. Appellant thereafter filed an original and amended motion for new trial which was overruled. This appeal is limited to the issue involving the custody of the minor child. It is appellant's contention that the trial court abused its discretion in failing to grant a new trial on the trial custody issue based on newly discovered evidence, discovered subsequent to trial.
The newly discovered evidence presented to the trial court was in the form of affidavits stating that appellee married William Fortune on October 27, 1967. It is noted that this date was subsequent to the court's rendition of judgment of divorce on October 2, 1967 but prior to the entry of the court's written judgment on February 28, 1969. In addition a 'term delivery child' was born to them on March 1, 1968. The Fortune baby was born approximately five months after the date the trial court made its docket entry on October 2, 1967.
Appellant contends that appellee knew that she was carrying Fortune's child when she testified that she had never had sexual relations with him and that she willfully committed extrinsic fraud on the court and jury which was calculated to prejudice appellant before the jury. Appellant further contends that such perjury destroyed any presumption that appellee was a fit and proper person to have custody of the minor child. Appellant also alleges that there is no evidence or insufficient evidence to support the jury finding that the child's best interests would be served if he were awarded to appellee.
McDonald, Texas Civil Practice, Vol. 4, Sec. 18.16, recites that motions for new trial based on newly discovered evidence are not favored and that a movant thereon has the burden of satisfying the court:
'(I) That admissible evidence was discovered after the trial, or so late in the trial that it was impossible to present the evidence before the trial closed; and
'(II) That it was not due to any lack of due diligence on the part of the movant that the evidence was not earlier discovered and made available at the trial * * *
'(III) That the testimony is not merely cumulative or impeaching * * *
'(IV) That the evidence is so material that it probably would, if believed, bring about a different verdict or finding upon another trial * * *'
The action of the trial court will be disturbed only where there is shown a clear abuse of his discretion. Ibid, authorities cited in Note 93, p. 1465.
The issue of adultery was before the trial court in the form of strong evidence, both circumstantial and direct. Mrs. Melody McKay, who formerly shared a one-bedroom apartment with the appellee for approximately two and one-half months, testified that Fortune spent the night with the appellee in their apartment on several occasions. She further testified that on other occasions the appellee spent the night with Fortune in his apartment. She testified that on still another occasion she found the appellee and Bill Fortune in bed without their clothes on. C. W. McKay, who subsequently married the previous witness, Melody McKay, testified that on one occasion they walked into their apartment early in the morning and found the appeallee and Bill Fortune on the floor in the nude. Based on this...
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D. H. v. J. H.
...although not controlling factor in determining which of the parents should be awarded custody of the children. Tapal v. Tapal, (1969) Tex.Civ.App., 448 S.W.2d 560; Claughton v. Claughton, (1977) Fla.App., 344 So.2d 944. See also: DiStefano v. DiStefano, (1978) 60 A.D.2d 976, 401 N.Y.S.2d 63......
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Sharp v. Sharp, 05-85-00558-CV
...with a married man, this fact alone does not disqualify appellee as managing conservator. See Tapal v. Tapal, 448 S.W.2d 560, 563 (Tex.Civ.App.--Houston [14th Dist.] 1969, writ dism'd). There was also testimony from several witnesses that appellant kept hard-core pornographic materials out ......
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Van Wart v. Van Wart, 12081
...The jury was impaneled under the provisions of Article 4639a, Texas Civil Statutes, Vernon's Ann.3 Tapal v. Tapal, 448 S.W.2d 560 (Tex.Civ.App.--Houston, (14th Dist.), 1969, writ dism'd); 24 Am.Jur.2d, Sec. 788.4 Part of her testimony was as follows:(Statement of Fact on Motion for New Tria......