Williams v. Guynes

• Decision Date: 22 October 1936
• Docket Number: No. 3429.,3429.
• Citation: 97 S.W.2d 988
• Parties: WILLIAMS v. GUYNES et al.
• Court: Texas Court of Appeals

97 S.W.2d 988

WILLIAMS v. GUYNES et al.

No. 3429.

Court of Civil Appeals of Texas. El Paso.

October 22, 1936.

Rehearing Denied November 12, 1936.

Appeal from District Court, Dallas County; Claude M. McCallum, Judge.

Habeas corpus proceeding by Jesse Williams against Yutha Guynes and husband for the custody of Mary Catherine Williams, a minor. From the judgment, relator appeals.

Affirmed in part, and reversed and rendered in part.

H. B. Thomas, Jr., and G. H. Crane, both of Dallas, for appellant.

Robert Lee Guthrie and Guthrie & Guthrie, all of Dallas, for appellees.

WALTHALL, Justice.

Appellant, Jesse Williams, brought this habeas corpus proceeding against appellee Yutha Guynes, formerly Yutha Williams, for the purpose of obtaining the custody of Mary Catherine Williams, who, at the time of the filing of the suit, was living with appellee.

Appellant is the father, and appellee is the mother, of Mary Catherine, a minor girl child of about the age of 13 years. About the year 1928 appellant and appellee were divorced in Dallas county, in which suit no mention or disposition was made of the minor child. In 1929 in a proceeding then had the custody of the minor child was awarded to appellant, except that in the summer months and during the holidays when she was allowed to visit and be with her mother for short periods of time. In the summer of 1935 the minor was allowed to visit appellee, and, upon demand by appellant that the child return to his home, the child being unwilling to return to her father, the appellee refused to allow the child to return to appellant, when appellant brought this habeas corpus proceeding to have the child restored to his custody and that the mother be enjoined from molesting the child. Appellee, joined in the suit by her husband, answered by general denial and specially pleaded that the child was voluntarily remaining with her; that she was a fit and proper person to care for the child; that appellant was not a fit and proper person to care for the child, and asked that the custody of the child be awarded to her; and that the father be required to contribute $20 per month to the child's support.

The matter was heard by the trial court without a jury, and a judgment was entered transferring the custody of the child to appellee, the child's mother, for 10 months each year, and gave the custody of the child to appellant for 2 months in each year, stating the months each should have the custody of the child, and directed that the father should make periodical monthly payments of $20 for the support of the child during the time she was living with her mother until she reaches the age of 16 years.

Appellant's motion for a new trial was overruled, and appellant appeals.

Opinion.

The appellant and appellee each lived in Dallas, Dallas county, but appellant had placed the child in the care and custody of his parents in Hopkins county, Tex. After the case was closed and all evidence had been heard, and after the court had refused to allow the minor child to testify in the case, the trial court announced that he would talk to the minor child, took the child out of the hearing of appellant and appellee, and ascertained from her her ideas and views as to where she would rather live, with appellant and his people, or with appellee, her mother, and her stepfather. No objection was made at the time by appellant to the court's expressed intention to talk to the child nor at the time the court took the child aside to talk to her.

Appellant submits reversible error to the action of the court in talking with the child and ascertaining her wishes in the matter.

Also after the evidence was closed the trial court stated that he wanted to make a further investigation of the matter and of the parties and their homes and their abilities to care for the child. The evidence shows that with the knowledge and consent of appellant, or with knowledge of the expressed intention of the court appellant acquiesced, the court had the chief juvenile officer of Dallas county to make investigation as to matters above stated and to make to the court a written report, which the juvenile officer did.

Appellant submits error to the above two actions of the court.

The habeas corpus proceedings had for their purpose the determination of the proper person to whom the custody of the minor child should be given. The proceedings are necessarily informal. It is the right and duty of the trial court to ascertain any and all the facts and to make such investigation of conditions which in his judgment will assist him in reaching a proper solution of the child's problems. Technical rules of practice are not to have controlling effect. The controlling issue on the merits is which custodian is for the child's best interest. The pleading in such cases is considered of little importance, and the judge exercising the jurisdiction of a chancellor has broad equitable powers. Wilson v. Wilson (Tex.Civ.App.) 88 S.W.(2d) 1086; Williams v. Perry (Tex. Com.App.) 58 S.W.(2d) 31; Tunell v. Reeves (Tex.Com.App.) 35 S.W.(2d) 707; Ferguson v. Ferguson (Tex.Civ.App.) 11 S.W.(2d) 214, same case on writ of error (Tex.Com.App.) 23 S.W.(2d) 673.

Here a change in the custody of the child is made. The record shows that, when the custody of the child was awarded to the father in 1929, the mother was not financially able to care for the child. Now she is. At the time the child was about 7 years of age, and possibly had or expressed no preference in the matter; now she is some 13 or 14 years old and expressed to the court her wish to be with her mother. It may be that the sex and age of the child had much to do in awarding the custody to the mother. When with the father's parents in Hopkins county, the child was some distance removed from her mother; when in Dallas where both parents live the child could see both parents often. Apparently the father was not situated to have the child with him in Dallas.

We are not prepared to say that it was reversible error to award the custody of the child to the mother during the 10 months in the year indicated, and to the father 2 months, until the child shall have attained the age of 16 years. The court ordered that appellant contribute $20 per month to the support of said child on the first day of each month until the child shall have attained the age of 16 years.

Appellant submits that the court has no authority to make such order, except in a divorce proceeding under article 4639a, Vernon's Ann.Civ.St. (as added by the Acts 1935, 44th Leg., c. 39, p. 111), and then in the divorce proceedings.

Appellant Jesse Williams testified that he was a mail carrier for the United States government and earned $2,100 a year, less 3½ per cent. of that amount for retirement; that he was a widower, and, it appears, has no child other...