Wallace v. Fitch
| Decision Date | 05 February 1976 |
| Docket Number | No. 16621,16621 |
| Citation | 533 S.W.2d 164 |
| Parties | Rita B. WALLACE, Appellant, v. Charles Elwin FITCH, Appellee. (1st Dist.) |
| Court | Texas Court of Appeals |
Daniel Bruce Beeler, Houston, for appellant.
Smith, Schulman, Rawitscher & Cordray, Jack J. Rawitscher, Houston, for appellee.
Mrs. Rita Wallace appeals from an order designating her former husband as managing conservator of their child after a jury trial. Mr. Fitch, the child's father, initiated this proceeding by filing a motion pursuant to Sec. 14.08, Texas Family Code.
The father alleged in his motion that because of a substantial and material change of circumstances since the last order appointing a managing conservator, the best interest of the child would be served by the requested change, stating that the mother had so neglected and permitted mistreatment of the child as to damage his health and well-being, and setting forth alleged circumstances. Mrs. Wallace answered by general denial. The only special issue and the jury's answer to it were:
'Do you find from a preponderance of the evidence that since the former decree granting custody of the minor child, John Cooper Fitch to Rita B. Wallace, there has occurred such a material change of conditions that the best interest of said minor child require a change of custody to Charles Elwin Fitch?
'In connection with the foregoing special issue you are further instructed that the sex of the parties shall play no part in your deliberations and you shall give no consideration to same.'
The judgment appointing Mr. Fitch managing conservator of the child was signed and entered on June 4, 1975.
The appellant's points of error are that the trial court erred in overruling her motion for new trial in that 1) there was no evidence to support the jury verdict, 2) the evidence was factually insufficient to support the jury verdict, 3) the father failed to plead and prove a material change in conditions of the child, and 4) the trial court erred in failing to grant the mother's motion for instructed verdict. We will consider the first point as a legal insufficiency point and the second as a great weight point.
We review the evidence. Dr. Dana Williams, a pediatrician, testified that when he examined John Cooper Fitch on July 18, 1974, in the presence of Mrs. Wallace and Mr. Fitch, he discovered two lesions on the instep of the child's right foot that looked like burns. In his opinion there was no way possible, based upon a reasonable medical probability, that the lesions could have been mosquito bites. He was unable to get a history from the child.
The father, Mr. Charles Fitch, testified that he took photographs of the child's foot the day after he took him to the doctor. They were admitted in evidence. When his son, aged three-and-a-half, told him how he received the marks on his foot, Mr. Fitch confronted his ex-wife and called Dr. Williams to make the appointment to check out what had caused them. Mrs. Wallace told him she thought they were mosquito bites that he had gotten on a recent trip. Mr. Fitch lives with his present wife in a three bedroom home in West University Place and feels he is financially able to care for the child. His mother, Mrs. Melba Fitch, testified that when the child told her how he had received the marks on his foot she was concerned for his welfare.
Betty Tate, a former wife of the child's stepfather, Ed Wallace, testified by deposition. She was his fourth and last wife before he married the appellant. She divorced him in 1973 after living with him a total of five weeks. She had had three children by a prior marriage. She and Wallace separated because they could not agree on how her children should be raised. He did not allow them to talk at the table or play in the house, not even in their own rooms. Her son, who was not yet three years old, was slapped on the hand by Mr. Wallace for putting his hand in his plate. She felt that he was not a fit stepfather for her children and that he did not want her children to have any friends. He complained when she gave their friends some cake. On his days off he would start drinking beer as soon as he finished breakfast, and he was drunk more than fifty per cent of the time. On cross-examination Mrs. Tate said that her children were the most important thing to her and that she made Mr. Wallace aware of that fact before their marriage.
Dr. Jack Bevil, a general practitioner, was called to testify by the appellant. He examined the child the day after Dr. Williams had seen him. He was of the opinion that the lesions were either the result of a bug bite or some healing impetigo, but they could have been started by a burn.
Mrs. Rita Wallace, the appellant, testified that she and her husband, Ed Wallace, now reside in Des Moines, Illinois, a suburb of Chicago. She is an x-ray technologist and teaches at DePaul University. They were at an outdoor barbecue in Chicago with friends of her husband when the child received the two lesions, plus two more on his back, and she noticed them the next day. They seemed to get worse, and she put some medicine on them. Ed Wallace does not abuse the boy. He has spanked him about three times with his hand, but only when there was a reason. The boy has been spanked for talking back to her. There is no friction between Wallace and her son and he does not appear to be scared of Wallace. Wallace would have a couple of beers on weekends, and one or two during the week. She has never seen him drink more than four highballs at a party. Neither she nor Ed Wallace smokes. She dated Ed Wallace for nine months before his divorce from his fourth wife.
Mrs. Estelene Denny testified that she married Ed Wallace in December of 1952, and they had three children during their marriage. He was a moderate drinker, was not quick-tempered and did not beat their children. He supports them regularly. He visited their children three times in the last twelve months and twice during 1973 .
Mr. Ed Wallace, Rita's...
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