Briley v. Brown , 1975 Tex. App. LEXIS 2506 ( 1975 )

ON THE MERITS

Appellant married L. D. Turner in 1953. They were divorced in November, 1969. Four children were horn of the marriage. At the time of divorce, the custody of the two older children was awarded to appellant, and the custody of the two younger children was awarded to the father. He died in December, 1969. We deduce from the record that appellee, who is the children’s paternal grandmother, took possession of the two younger children upon their father’s death. On August 24, 1973, in a suit filed by appellant against appellee for custody of the children, judgment was rendered awarding custody of the two younger children to appellee.

The record does not reflect when the case at bar was filed by appellant, but, as we have said, it was heard on July 18, 1974.

In her first two points of error, appellant asserts that the trial court refused to allow her to prove “all facts that existed prior to the [custody] decree in 1973,” upon which she would have based a showing of subsequent change of condition; and that the court refused to permit her to develop a bill of exception in this regard. The record does not support these complaints. Early in the trial, the court told appellant, “You may contrast the situation that existed on August 24, 1973, with that existing today. That’s the extent of this hearing.” The record shows that the true point of contention between the court and appellant was the court’s refusal to permit appellant to go behind the 1969 divorce decree, which was rendered four and one-half years prior to the hearing in question and three and one-half years prior to the existing custody order, and give her view of the circumstances at the time of the divorce “to show a change of condition.” We perceive no error in this refusal. Appellant does not now argue that it was error, although she vigorously did so on the trial. At one stage of the trial, the court refused to let her make this proof (and other proof which she subsequently was permitted to make) for the purpose of a bill of exception. Near the close of the hearing, the court gave appellant the opportunity to “introduce any proof you want to” on the bill of exception. She declined, stating that two of her witnesses had been excused. The record does not show who excused the witnesses, or why they were excused; or that appellant needed other than her own testimony to perfect her bill. These facts do not reflect error.

Appellant’s third and final complaint does not present reversible error under the record. It is overruled.

The judgment is affirmed.