Thompson v. Haney

• Decision Date: 10 December 1945
• Docket Number: No. 5696.,5696.
• Citation: 191 S.W.2d 491
• Parties: THOMPSON et al. v. HANEY.
• Court: Texas Court of Appeals

191 S.W.2d 491

THOMPSON et al. v. HANEY.

No. 5696.

Court of Civil Appeals of Texas. Amarillo.

December 10, 1945.

Appeal from District Court, Wilbarger County; C. Y. Welch, Judge.

Proceeding on motion by Beryle Thompson and husband charging that Ernest Haney had not made the payments for support of minor child required by divorce decree and had violated court's order in dispossessing named movant of physical custody of the child, and asking that defendant be required to make such payments and be held in contempt of court and that custody of the child be returned to movant, wherein defendant filed a cross-action for custody of the child on the ground of changed conditions. From a judgment denying movants the relief prayed for and awarding custody of the child to defendant, movants appeal.

Judgment affirmed.

W. D. Hollars, of Plainview, for appellants.

Warlick & Bunnenberg, of Vernon, for appellee.

PITTS, Chief Justice.

This is a child custody case in which the record shows the parents of the child were married on March 9, 1931. The child, Rita Jo Haney, a girl, being the only child, was born to the marriage on September 26, 1934. The parents separated on February 1, 1937, and were divorced on April 22, 1937, by a decree of the same trial judge that heard this case. The divorce decree awarded the custody of the child to its mother and required certain payments to be made by the father for the support of the child. Beryle Haney, appellant, and the mother of the child, later married Fred C. Thompson and she and Fred Thompson moved to San Angelo, Texas. Appellee, Ernest Haney, the father of the child, remarried and continued to live in Wilbarger County.

The record reveals that the father contributed to the support of the child, visited her occasionally at San Angelo, and had letters from her occasionally; that in the summer of 1943 the child ran away from home and started to her father but was apprehended by the officers on the highway before she got far and was returned to her mother; that soon thereafter her father visited her at her mother's home and she returned home with him where she remained for more than two months, during which time her father entered her in school in Wilbarger County early in the fall; that in October, 1943, the child's mother took her from school and without the consent of the father took the child home with her to San Angelo and entered her in school there; that early in 1945 the child wrote several letters to her father begging him to come and get her and that the father talked with the child by phone about the matter twice while she was at school; that on March 24, 1945, the father visited the child at her home in San Angelo and took her home with him to Wilbarger County without the consent of her mother.

On June 27, 1945, appellant, Mrs. Beryle Thompson, filed a motion in the trial court charging that appellee had not made the payments for the support of the child as required by the trial court and had violated the court's order in dispossessing her of the physical custody of the child and asked that a hearing be had and that appellee be required to make the payments he had failed to make, be held in contempt of court and that the custody of the child be returned to her.

Appellee answered with a general denial and a cross-action alleging, in effect, that since the awarding of the custody of the child to appellant on April 22, 1937, conditions had materially changed with both parties; that appellant was not then a proper person to have her custody, and that it would be for the best interest of the child to be awarded to appellee, all of which was denied by appellant.

On July 20, 1945, the trial court heard the pleadings, evidence, and argument of counsel, denied appellant the relief prayed for, and awarded the custody of the child to appellee, Ernest Haney, by judgment entered, from which appellant perfected an appeal to this court.

Appellant complains that appellee's pleadings are insufficient to support the trial court's judgment, but such complaint is made for the first time on appeal. The record discloses that appellant answered appellee's pleadings in the trial court only on the merits, did not except or object to appellee's pleadings in the trial court, and did not allege any defect for the trial court to pass on. Rule 90, Texas Rules of Civil Procedure, provides that a party who complains for the first time on appeal of any claimed defect, omission, or fault of the pleadings of the adverse party and does not properly call attention of such to the trial judge has waived such irregularities, if any there be, and the said rule is applied in a similar question in the case of Litterst v. Edmonds, Tex.Civ.App., 176 S.W.2d 342.

A careful examination of appellee's pleadings reveal, however, that he pleaded a material change of the condition and circumstances of the parties since the previous award of the trial court some seven or eight years prior thereto sufficiently to meet the requirements of Rule 45, Rules of Civil Procedure. Such is especially true in view of the repeated holdings of the courts that the pleadings in a child custody case should be considered of little importance and, certainly, as a rule, the trial court should not permit technical rules to have a controlling effect in such cases. The best interests of the child is the paramount issue in such cases and the trial court is given broad discretionary powers in determining the sufficiency of the pleadings as well as the issues in such cases. Brillhart v. Brillhart, Tex. Civ.App., 176 S.W.2d 229; Williams v. Guynes et al., Tex.Civ.App., 97 S.W.2d 988; Wilson v. Wilson, Tex.Civ.App., 88 S.W.2d 1086; Williams v. Perry, Tex.Com.App., 58 S.W.2d 31; and Tunnell v. Reeves, Tex. Com.App., 35 S.W.2d 707.

We overrule appellant's points of error complaining of the insufficiency of appellee's pleadings.

Appellant further complains that the trial court abused its discretion in awarding the custody of the child to appellee without sufficient evidence to support such a judgment.

The record discloses that appellant, appellee, the child, and appellee's present wife testified before the trial court and that some of the testimony was sharply controverted. It was undisputed that appellant and her present husband had three children by their marriage, ages four years, two years, and six months; that Fred C. Thompson was a mechanical foreman for a newspaper and drew a salary of $85 per week; that appellant had fair living quarters and had access to a good school; that appellee was a farmer; had fair living quarters, and he and his present wife lived on a farm, had no children, were able to care for the child, and had access to a good school. The child was in the fourth grade at school and seemed to be a normal child. The record contains several letters written by the child to her father prior to March 24, 1945, begging him to come after her, stating her health was not good, and that she was being mistreated by her mother and stepfather. She testified she wrote the letters while she was in school and mailed them without her mother's knowledge; that the contents of the letters were true and that the habits and home life of appellant and Fred C. Thompson were not good. The testimony about her being mistreated and further testimony about the bad habits of appellant and her husband, Fred C. Thompson, and their home life was sharply...