Valentine v. Valentine, 5792.

• Decision Date: 30 June 1947
• Docket Number: No. 5792.,5792.
• Citation: 203 S.W.2d 693
• Parties: VALENTINE et al. v. VALENTINE.
• Court: Texas Court of Appeals

203 S.W.2d 693

VALENTINE et al. v. VALENTINE.

No. 5792.

Court of Civil Appeals of Texas. Amarillo.

June 30, 1947.

Appeal from District Court, Oldham County; John Aldridge, Judge.

Suit by R. C. Valentine, Jr., against Juanita Sue Valentine for divorce and custody of minor child, wherein defendant filed a cross-action asking for a divorce and custody of the child and Mrs. Stella Glasscock, defendant's foster mother, intervened asking that she be awarded custody of the child. From that portion of judgment granting plaintiff a divorce whereby custody of the child was awarded to him, defendant and intervener appeal.

Judgment affirmed.

W. F. Nix and E. T. Miller, both of Amarillo, for appellants.

Hazelwood & Richards, of Amarillo, for appellee.

LUMPKIN, Justice.

The appellee, R. C. Valentine, Jr., filed this suit for divorce and custody of his minor daughter, Billye Sue Valentine, against his wife, Juanita Sue Valentine, appellant. The wife filed an answer and cross action, in which she asked for a divorce and custody of the child. Each party alleged cruel treatment as grounds for divorce. Appellant's foster mother, Mrs. Stella Glasscock, intervened and asked that she be awarded the care and custody of Billye Sue Valentine. On this appeal the intervenor joins the wife as an appellant.

The trial was to a jury. In answering the special issues submitted, the jury found for the appellee and against the wife and intervenor and found that the care and custody of Billye Sue should be placed in her father, the appellee. In the judgment the court, without being influenced by the answers of the jury, made its own findings of fact. These findings were against the appellant and intervenor, and judgment was duly rendered granting the husband a divorce and awarding him the custody of the child with rights of reasonable visitation vested in the mother. To this judgment the appellants gave notice and have perfected their appeal to this court; however, there is no appeal from that portion of the judgment granting the divorce.

In six assignments of error appellants attack the judgment on two grounds: (1) Under the evidence the custody of the child should be awarded to the mother; (2) because of the inflammatory, prejudicial, and out of the record argument made by appellee's counsel, which amounted to unsworn testimony being put before the jury, the verdict and judgment should be reversed and a new trial ordered.

The record discloses that the appellee and his wife were married November 24, 1944; that their daughter, Billye Sue, was born May 22, 1945. Appellee testified he was inducted into the army of the United States December 4, 1944; and that his married life from the date of the marriage to about August 26, 1945, the date he was ordered overseas, was a happy one. Appellee returned to the United States August 26, 1946. Valentine testified that while he was overseas, he heard from his wife regularly, but as time went on, he heard from her less and less frequently until the last two months when he ceased hearing from her altogether. When he returned home, discharged from the army, the first time he saw his wife she was in the company of one Jack DeWeese; that she told him she had changed a lot and did not want him any more—that she thought DeWeese would make her happy, and she asked appellee for a divorce. Upon the occasion of this conversation, Valentine stated, his wife had been drinking intoxicants. He said that since his return home, he had seen appellant in DeWeese's company many times. Appellee introduced into evidence three letters written by men and received by his wife while he was overseas. Also introduced were two pictures which show appellant in the company of a young woman and some young men, probably soldiers, which, although they do not in themselves criminate appellant, show, together with the letters, that she left her home in Vega, Oldham County, Texas, at a time while her husband was overseas, and visited a soldier stationed near San Antonio, Texas. From the evidence, it is deduced that her child Billye Sue, remained with Mrs. Stella Glasscock while appellant made this trip.

Other witnesses, most of them residents of Vega and friends of the appellant, testified that during the period the appellee was overseas, his wife made it a practice to visit night clubs, associate with men, and use intoxicants. Some of the witnesses testified that although they had seen the appellant daily in and around Vega for a period of seven or eight months, they had not seen her with her baby but twice, and on one of these occasions Mrs. Glasscock was present. On one occasion, the appellant lived for a week in a tourist court in Vega. The evidence does not reveal where the baby was during this period; it is to be assumed she was with Mrs. Glasscock. As to whether or not the young mother had any affection for her child, the following testimony of Beth Ferguson, a contemporary and friend of the appellant, is probably revealing:

"Q. Did she ever say anything whether or not she wanted the baby or not? A. Well, she said she was—she did not want to be bothered with her; it was just some child—to leave it with her mother."

Since the appellant did not take the stand in her own behalf or testify at any time during the trial of this case, none of this testimony was contradicted. Nor was any witness called from her apparently many friends residing in Oldham County or Amarillo to refute the insinuations made against her reputation as a woman and mother. The only witness who appeared in her behalf was Mrs. Stella Glasscock, the intervenor. From her evidence, it is discernable that...