56 S.W.2d 519 | Tex. App. | 1932
This is a controversy between a divorced mother and father over the custody of their six year old son. Under existing orders of the trial court the boy is awarded to the custody of his father on Sundays and of his mother during the remainder of the time.
Originally, when the divorce was decreed on September 17, 1929, the father was granted the custody of his son two hours a week, but this order was modified on September 15, 1931, as it now is. The present action is in the form of a new suit to further modify the order so as to extend the father's custody of the boy.
The matter was heard by a jury, who found in response to a special issue that "conditions affecting the welfare of the child" have not "changed" since the last decree regulating its custody. Upon this finding the trial judge denied any relief to the father, who has appealed.
There was a great deal of testimony in the case, consisting largely of small bickerings between the parents of the unfortunate and helpless victim of the controversy. Much of the testimony was inadmissible and had no bearing upon the paramount issue of what is for the best interest of the child, except to disclose the miserable tragedy which has thrust him into a domestic no man's land, across which he is bandied back and forth between the hates and jealousies of his divorced parents.
We conclude that the evidence does not warrant a disturbance of the existing situation, since the child cannot be removed from the custody of both parents. The jury had no guide in the evidence to enable them to compare prior conditions with those existing after the last decree or to advisedly answer the sole issue submitted to them, yet the trial judge heard the evidence and declined to set aside the verdict or readjust the status of the child, and this court is not disposed to revise his orders thereon, or to hold that he has in anywise abused his discretion in the case.
All of appellant's assignments of error and his motion for rehearing are overruled, and the judgment is affirmed.
The foregoing opinion will be substituted for the original, which will be withdrawn. *652
