Clayton v. Kerbey

Opinion. JENKINS, J. The appellant is the father of Commell Clayton, a girl about six years [1118] of age. Appellees are the maternal grandparents of said child. The mother of the child died in February, 1918, since which time she has been .in the custody of appel-lees. Both appellant and appellees bear the reputation of being honorable citizens. Each party is financially able to care for and educate the child. The case was submitted upon the following special issues: “Question No. 1: Do you find that O. W. Olayton, the father of the minor, Commell Olayton, is in any wise disqualified to have the care, custody, and control of said child?” To which the jury answered: “Yes.” “Question No-. 2: Do you find that said defendants, A. L. Kerbey and Mary Kerbey, the grandparents of said Commell Clayton, are in any way disqualified to have thei care, custody, and control of said Commell Clayton?” To which the jury answered: “No.” “Question No. 3: From a consideration of the testimony in' this case which do. you think best calculated, and which would be to the best interest of the child, Commell Clayton, to provide for, care for, educate, and support said minor child, Commell Clayton, the father, C. W. Clayton, or the grandparents, A. L. Ker-bey' and Mary Kerbey?” To which the jury answered: “A. L. and Mary Kerbey.” [1] The court instructed the jury that “the burden of proof was upon the defendants, A. L>. and Mary Kerbey, to prove by a preponderance of the testimony that the ‘best interest of the child would; be best served by leaving the child in the care, custody, and control of said defendants,” but did not otherwise charge on the burden of proof. The appellant, in due season, objected to the charge, in that it omitted to inform the jury that the burden of proof was on defendants to prove that appellant was disqualified or incompetent to have the care, custody, and control of his child, and also requested, in writing, a special charge to this effect, which special charge was by the court refused. The refusal of the court to give this requested charge constitutes reversible error. [2] The law presumes that a parent is qualified to have the care and custody of his or her child' until the contrary is shown. Had this charge been given, and had the jury, in view of the same, answered the first question in the negative,' that would have been decisive of this case. If a parent is not in any way disqualified to have the care and custody of his child, the law conclusively presumes that it is for-the best interest of the child that he shopld have such custody. Wood v. Deaton, 93 Tex. 243, 54 S. W. 901; Smith v. Long, 181 S. W. 478; Carter v. Lambert, 214 S. W. 566. [3] On the other hand, if there be such a lack of solicitude for the welfare of his child as to indicate the absence of that natural affection which exists in the heart of most parents for their children, and some one- else is ready and willing to give such child a suitable home, the court will, in the interest of the child, take it from the parent and award it to such other person. Schneider v. Schwabe, 143 S. W. 265; Legate v. Legate, 87 Tex. 248, 28 S. W. 281. This is true if for any other reason it should plainly appear that the parent is not a proper person to have the custody of his or her child. The burden of proving such fact is upon him who, by reason thereof, seeks to deprive a parent of the custody of his or her child. Though it is difficult for us to put our finger' on any specific reversible error in the explanatory portion of the charge, we are impressed with the idea that the criticism thereof by appellant to the effect that it does not meet the demand of a fair and impartial trial is not without foundation. Too much prominence was given to the welfare of the child, and not enough to the rights of the father. We are asked to reverse this case upon the ground that there was no legal evidence upon which the answer of the jury to question No. 1 could have been based. We overrule this assignment. [4] Appellant also assigns as error that counsel for appellees asked a witness which of the parties the people in the neighborhood thought would best care for. the child; also what was the general reputation of appellant as to being kind or unkind to his wife and child. The court sustained objections to both questions. A case will not be reversed because an attorney asks an improper question, unless it be made to appear that he did not do so in good faith, but for the purpose of improperly influencing the jury, and that it was calculated to' have that effect. . - The latter question was a proper one, and the court should not have sustained the objection thereto. For the reasons stated, the judgment of the trial court is reversed, and the cause is remanded. Reversed and remanded. Footnotes [1] <§=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes