Tims v. Tims

• Citation: 201 S.W.2d 865
• Decision Date: 11 April 1947
• Docket Number: No. 5771.,5771.
• Parties: TIMS v. TIMS.
• Court: Court of Appeals of Texas

Page 865

201 S.W.2d 865

TIMS v. TIMS.

No. 5771.

Court of Civil Appeals of Texas. Amarillo.

April 11, 1947.

Rehearing Denied May 12, 1947.

Appeal from District Court, Potter County; Henry S. Bishop, Judge.

Suit for divorce and custody of minor children by Opal Zillah Tims against Gilbert Edgar Tims. From portion of judgment in favor of plaintiff awarding to her custody of children and household furniture and requiring defendant to pay $50 per month for support of children, defendant appeals.

Judgment affirmed.

W. F. Nix, of Amarillo, for appellant.

W. T. Brothers, of Amarillo, for appellee.

PITTS, Chief Justice.

This is a suit for a divorce and the custody of two minor children. The case was tried to a jury which found that because of cruel treatment to appellee, Opal Tims, by appellant, Gilbert Tims, she was entitled to a divorce from him; that appellee was entitled to have the custody of the two minor children; that appellant should be required to pay $50 per month for the support of the two minor children and that all of the household furniture belonging to the parties should be awarded to appellee.

The trial court followed the findings of the jury and rendered judgment accordingly from which judgment appellant perfected an appeal to this Court; however, he has not appealed from the issue of divorce. He charges in four points of error that the trial court abused its discretion in awarding the appellee the custody of the children and the community household furniture and in requiring him to pay $50 per month for the support of the said children; that the sum fixed for the support of the children is unreasonable, cannot be performed by him, and that such an allowance is not supported by the pleadings or the evidence; that the trial court did not have jurisdiction to divest title to the personal property out of appellant and into appellee, and that the trial court erred in requiring the payments for the support of the children to be made retroactive by its judgment.

The record reveals that the trial court permitted the parties much latitude in developing the facts in this case and that the witnesses heard were appellee, her parents, her sister, appellant; his mother, and his sister. The said two minor children, Margie Sue, age eleven and in the sixth grade at school and Don Edwin, age ten and in the fourth grade at school, also testified.

The record further reveals that the parties were married July 29, 1928; that their oldest child is a daughter who was married and lived in the State of Missouri; that they have an older son more than fourteen years of age who has lived with his father and his father's relatives since the separation of his parents on July 10, 1946; that after they married the parties had lived on farms at several different places on the Texas Plains, and that appellant had either farmed for himself or had been employed on a farm until several years before their separation when they moved to Amarillo where the children attended the public school and appellant worked for the American Smelting and Refining Company until some time after their separation; that appellee had engaged in some light work for meager wages during a part of the time they had lived in Amarillo; that appellee had undergone surgery in recent years and her health was not good.

In some instances the evidence was conflicting but we find nothing in the testimony that would indicate that appellee is not a fit and proper person to have the custody of the two minor children in question and that is the paramount issue for our consideration here. Where evidence is conflicting the trier of facts has the exclusive function of determining the credibility of the witnesses and the weight to be given to their testimony. Mortensen v. Mortensen, Tex.Civ.App., 186 S.W.2d 297. In this case the jury was the trier of facts. The trial court was not bound by the findings of the jury on the issues of custody of the children or the division of the property but the trial judge evidently agreed with the jury and followed its findings. The trial court has broad discretionary powers in awarding the custody of minor children and making disposition of community property in a divorce case. The awarding of custody of minor children in such a case as this is addressed to the sound discretion of the trial court and will not be disturbed on appeal unless the award is so contrary to the great preponderance of the evidence as to show an abuse of discretion. Lanford v. Carruth, Tex.Civ.App., 186 S.W.2d 368 (and other authorities there cited. In this case the evidence showed that the parents of appellee were willing and able to help appellee care for and school the two children in question and that the mother and sister of appellant were likewise able and willing to help care for and school the said children if they were awarded to appellant. The evidence further reveals that appellant is a big strong man and that he sometimes used physical force upon his wife in order to control her acts and will power and to compel her to obey his wishes and that on certain occasions he had resorted to such violence upon her in the presence of the two minor children herein named. Such a practice is condemned by both English and American jurisprudence, and has always been condemned by the Texas courts. Mortensen v. Mortensen, supra. The evidence further reveals that appellant often used corporal punishment upon the children and that sometimes such punishment was quite severe, all of which may have indicated to the jury and the trial judge that appellant was a man of a violent temper and was sometimes unreasonable. This Court recognizes the necessary rule of securing obedience to authority in the matter of the discipline of the children of a family and that without obedience government in the home, school and the nation will be impossible. In some instances it may be necessary to spank the...