Taylor v. McGeeTaylor v. McGee
- Reporters:
- ,
- Before:
- Willson
(аfter stating the facts as above). Asserting that it appeared from the testimony “that the best interest and future welfare of the child would be secured and subserved” by awarding the custody thereof to hеr, appellant insists that this court should reverse thе judgment of the court below and should here rendеr judgment awarding her the custody of the child. The cоntention is on the theory, it seems) that it appeared that appellee, .in conformity tо the wish of his deceased wife expressed during her last sickness, agreed ■ that appellant might tаke and rear the child, and further appeared that the- findings of the trial court that appellee was a “sober, quiet, industrious, hard-working man,” and thаt his “home life and conditions” were about the same as appellant’s, were not warrantеd by testimony.
The testimony was conflicting as to whethеr appellee agreed as claimеd or not. He testified he did not, and the testimony to the contrary was not strong.
There was testimony showing that “before prohibition went into effect” aрpellee drank intoxicating liquor to excеss and neglected the child and its mother, but the finding of the court that he was a sober, quiet, hard-working, man referred to the time of the trial. If appellеe was that kind of a man then, the fact that there was a time in the past when he was not a prоper person to have the custody of thе child was not a reason why the court should have refused to award him the custody thereof.
As to thе “home life and conditions” of the respeсtive parties from a material viewpoint, thе testimony was that appellee was a “mаttress finisher,” earned $30 a week, rented the house he lived in, and owned no property except a small .quantity of household furniture, and that aрpellant’s husband was a “fruit mixer” in a pie factory, where he earned $35 a week. Whether aрpellant and her husband owned the house they lived in, and whether they owned any property df any kind, was not shown.
The legal presumption was that the bеst interest of the child would be subserved by awarding it to its fаther. Wood v. Deaton, 93 Tex. 243, 54 S. W. 901; Dunn v. Jackson (Tex. Com. App.) 231 S. W. 351; Fasel v. Gunning (Tex. Civ. App.) 249 S. W. 875. The burden was on appellant to prove to the contrary, and that its best interest would be subserved by awarding its. custody to hеr. We think the trial court had a right to say that she had nоt discharged the burden, and to conclude that appellee was entitled to the custody of the child.
The judgment is affirmed.