Milim v. Mayfield , 285 S.W.2d 852 ( 1955 )

PITTS, Chief Justice.

This majority opinion has been prepared for announcement in lieu of a minority opinion previously prepared. This is a child custody case in which the issue of proper custody has been three times litigated within a period of less than 20 months and in our opinion in the last trial of the cause the issue was not properly disposed of for the best interest of the child involved.

This action-was filed by appellant herein, the mother of the child, Mrs. Pat Milim, joined by her present husband, Tommy Milim, against appellee herein, G. May-field, the father of the “child, and former husband of Mrs. Pat Milim, seeking for herself the full custody and control of the child, a girl, whose name is Mona Kay Mayfield, age 11 years.

The parents of the child were divorced by a decree entered on September 21, 1953, in the district court of Briscoe County, Texas, with the full custody of the child then awarded to its mother, with such decree giving the father the right of reasonable visitation. Thereafter, the father, G. Mayfield,'filed suit in the-district court of BriScoe County seeking full custody of the child. On May 20, 1954, a hearing was held as a result of which a decree was entered modifying the former award and awarding the custody of the child to its mother during the nine school months of the year and to the father the three summer months of the year, to which judgment the parties agreed. ; The arrangement there madé did not prove satisfactory to either the child: or her mother.

On October 14, 1954, appellant herein, the child’s mother, filed suit in the district court of Swisher County, Texas, seéking a modification of,the last previous order ánd, there asking for the full custody of the child with reasonable visitation of the child allowed to its father. Appellant there alleged in effect and here claims that conditions had changed since the last award and that’ the child was unhappy and dissatisfied while in the custody of its father. The child’s father subsequently married again on June 28, 1954, and his then wife had a child two and one-half years old by a former .marriage. Appellant further alleged and claims that during tlie time .the child was with its father he committed and permitted to be committed acts of. mental cruelty upon his said child, Mona Kay, and such acts were detrimental to the welfare and happiness of the said child;, that during such period of time the child’s father neglected the personal hygiene and health of the said child; that the father neglected the parental care, love and affection of the said child.

- On March 7, 1955, a hearing on the action was tried to- a jury upon two issues submitted without objections. The jury found that the child should be awarded to its mother with the father to have it in his home for visitation purposes during the months of June, July and August of each year, which in effect amounts to a divided custody of the child. However, it may be observed that the jury wrote in its ver-diet concerning visitation periods, suggesting one visit by each party once each month. The trial court entered judgment in accordance with the jury verdict, dividing the custody of the child between its parents and allowing visitation of the child by the parent who did not have custody at the time visitation was desired. From the judgment entered the mother appealed and seeks full custody and control of the child based upon her pleadings and the evidence heard.

The controlling issue to be here determined is the question of divided custody of the child between its divorced parents. Courts have consistently held that the best interest of the child is the paramount question to be determined in such a case and not what may be most pleasing to either parent. It has likewise been uniformly held that everything else being equal between the parents, the custody of a child of tender years, and especially a girl, should be awarded to its mother if she be a proper person to have it. In the case at bar, the record reveals that the mother has been found to be a fit and proper person to have custody of her child in each of the three judicial hearings conducted. In fact, she was given full custody of the child at the first hearing conducted. It has been generally held that divided custody of a child of tender years between its divorced parents should not be permitted except under special conditions in which there is no reasonable alternative and it is made essential if not absolutely necessary. This court so held recently in the cases of Anderson v. Martin, Tex.Civ.App., 257 S.W.2d 347; Bronner v. Bronner, Tex.Civ.App., 278 S.W.2d 530; Tedder v. Bloyd, Tex.Civ.App., 283 S.W.2d 409. In these three cited cases this court laid down the well-recognized rules of law fully governing a situation such as we have presented here and cited ample authorities in support thereof. In the Tedder-Bloyd case, as well as in the Anderson-Martin case, we held that a division of two months for one parent and 10 months for the other was improper. In the Bronner case, we held that an equal division of the custody between divorced parents was improper. We likewise held that jury findings attempting to divide the custody of a child between its divorced parents are not binding.

In the case of Martin v. Martin, Tex.Civ.App., 132 S.W.2d 426, 428, opinion by Justice Alexander, who was later Chief Justice of the Texas Supreme Court until his death, said in part :

“In our opinion, the original decree awarding the child part time to each of the parents was unwise. Certainly, no child could grow up normally when it is hawked about from one parent to the other with the embarrassing scene of changing homes at least twice each year. Such decrees are usually prompted by a laudable desire to avoid injuring the feelings of the parents, but the net result is a permanent injury to the child without any substantial benefit to the parents. In addition to the lack of stability in his surroundings, the child is constantly reminded that he is the center of a parental quarrel. It is readily apparent that such practices are calculated to arouse serious emotional conflicts in the mind of the child and are not conducive to good citizenship. Moreover, the parents are continuously pitted against each other in the unenviable contest of undermining the child’s love for the other parent. Each parent is afraid to exercise any sort of discipline for fear of losing out in the contest. As a result, the child is reared without parental control. Such decrees by which the child is awarded part time to each of the parents have been condemned by numerous decisions. 19 C.J. p. 344, sec. 797, and authorities cited in Note 27; Swift v. Swift, Tex.Civ.App., 37 S.W.2d 241.”

The logical reasoning there presented fully applies to the issue here presented.

The record reveals that the last previous award of the child prior to the hearing of this matter by the trial court was made on May 20, 1954. Thereafter, on June 28, 1954, appellee, the child’s father, married his present wife who had a little girl by a former marriage, then two years old, who was brought into the home. This subsequent marriage of this child’s father and the bringing into the home of a new wife with a small daughter alone constitute material changes brought about by the father since the last award was made and such has been so held in other such cases. However, other material changes have been shown by the evidence. The record reveals that the child, who was 11 years old and in the 5th grade at school, testified that she spent a large part of the summer of 1954 with her father, his present wife and her small daughter, during which time she was very unhappy and wanted to be with her mother. In our opinion the child gave very good reasons in her own way for making such a choice. The child’s father gave her money and bought her clothes, toys and a doll, but such were sometimes given to her conditionally under such terms that were difficult for her childish mind to understand. During her stay with her father that summer some of his relatives made what the child deemed unkind remarks to her about her mother and the separation of her mother and her father. Apparently Mona Kay became emotionally upset which resulted in illness of such a nature that caused her father to take the child home to her mother. The evidence reveals that the child’s father went to the school room to visit the child and such a visit disturbed the child emotionally. The evidence further reveals that whatever ill feeling, if any, the child may have had toward her father resulted from her experiences in his home during the summer of 1954 while she was in his custody and under his control and not while she was in her mother’s custody. It is readily apparent, however, that the father’s association with the child and his discipline of her have aroused serious emotional conflicts in her mind which should not be further aggravated. No attempt has been made to show any good reason why the custody of the child should be divided between its parents. In the language of Justice Alexander, this child should not be further “hawked about from one parent to the other with the embarrassing scene of changing homes at least twice each year.” In the case of Bronner v. Bronner, supra, this court held that a former award of a child’s custody should be changed if conditions have changed to such an extent that the welfare of the child demands a change of custody, and such is a well-recognized rule of law. In our opinion, the record before us con-? clusively reveals that there have been such material changes in conditions since the last award of the child was made on May 20, 1954, as to demand that such judgment of award then made be modified for the best interest of the child and that her full custody and control be awarded to her mother, Mrs. Pat Milim, with her father, G. Mayfield, given the right of reasonable visitation with the child.

For the reasons stated the judgment of the trial court is reversed and judgment is here rendered awarding the full custody and control of the child, Mona Kay May-field, to her mother, Mrs. Pat Milim, with her father, G. Mayfield, given reasonable visitation rights with the child. Reversed and rendered.