Ham v. Cavette

357 S.W.2d 438, 1962 Tex. App. LEXIS 2436
CourtCourt of Appeals of Texas
DecidedMay 10, 1962
Docket13923
StatusPublished
Cited by9 cases

This text of 357 S.W.2d 438 (Ham v. Cavette) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ham v. Cavette, 357 S.W.2d 438, 1962 Tex. App. LEXIS 2436 (Tex. Ct. App. 1962).

Opinion

WERLEIN, Justice.

This suit was brought by appellant against appellees to set aside an order of the District Court of Galveston County entered December 5, 1958 in Cause No. 90,-349 awarding temporary custody of appellant’s children to appellees, Ernest E. Ca-vette and Elizabeth Cavette, the maternal step-grandfather and maternal grandmother of said minors, and to obtain full custody of such children.

Appellant asserts that the trial court abused his discretion and committed reversible error in awarding the custody, care and control of his minor children to ap-pellees and not to him. In trying to determine whether there was an abuse of discretion by the trial court, we have carefully considered the entire record, which is quite voluminous. It would serve no useful purpose to set out more than a few salient facts.

Appellant and his first wife, Karlita, the daughter of Elizabeth Cavette, were married June 7, 1951 and divorced July 23, 1957. Custody of their two children; Kathy, who was born November 1, 1953, and Claudie Allin, Jr., who was born November 30, 1954, was awarded to Karlita. After the divorce Karlita married one Tom McKenzie. She died several months later, on March 17, 1958. Appellant married one Betty Carroll on October 6, 1957, and on April 3, 1958 appellant filed his original petition in said Cause No. 90,349 to obtain custody of said minors. On December 5, 1958 the District Court of Galveston County awarded temporary custody of the minors to the Cavettes. No further action was taken in that cause. On December 18, 1959 the present suit, Cause No. 93,721 in the District Court of Galveston County, was filed by appellant and on August 14, 1961 judgment was entered therein giving custody of the children to ap-pellees.

Admittedly appellant, prior to being divorced by Karlita, lived at times a wild and dissolute life, associating with gamblers and prostitutes, entertaining in night clubs and beer joints in many places, and working only periodically without any steady employment for any length of time, except for several years as an entertainer at the Imperial Club in Galveston. Appellant admitted at the trial in June 1958 that he had been arrested on certain charges involving morals but had not been prosecuted or convicted. He admitted other derelictions and improper conduct but asserted that he was converted a week before such trial and his religion known as Jehovah’s Witnesses would not permit him to return to the entertainment field, and that although he had previously believed what such sect taught, it was only a week before the trial that he had been immersed and had changed his manner of life. He didn’t gamble, smoke or drink.

Appellant testified that during all the period after the children were born until the time he and his wife separated on May 4, 1957, the children spent approximately one-third of the time with the Cavettes. The children have remained in the custody of the Cavettes continuously from the time *440 their mother died in March, 1958 down to the present time.

The evidence shows that since March of 1958 appellees have been offered and given by appellant only $40.00 and a few articles of clothing towards the support of the children. At the time of the trial in June, 1958 appellant had been working for the Department of Agriculture, Soil Conservation, approximately two months and was making about $200.00 per month. Such employment would probably continue five or six months each year. He also did some commercial fishing and farming with his father. He testified that in the year 1958 he and his second wife earned approximately- $1,043.40 and in the year 1959 their combined earnings amounted to $1,954.95. He testified at the trial of the present case in September, 1960 that he was then making approximately the same weekly wage that he was making in June, 1958, and that he was still in debt approximately in the same amount of $1500.00 that he owed in 1958, and in addition he owed some $1,004.-50 to John Sealy Hospital. At the time of the trial of the instant suit he had a cottage with two bedrooms instead of one bedroom as in 1958. He paid $50.00 per month rent for such cottage and his average monthly food bill for himself and wife was about $30.00 per month. They ate vegetables from his father’s farm.

The order of the court entered December 5, 1958 permitted appellant to visit the children in Galveston each Sunday from 1:30 p. m. to 6 p. m. While there is a conflict in the evidence, there is much testimony to the effect that when the children returned from such visits with their father, they were highly nervous and upset, had nightmares and frequently vomited. The testimony also indicates that the children did not want to go with their father and preferred staying home with the Cavettes. Mr. Cavette was making some $6,000.00 per year, -and Mrs. Cavette was also earning money. They had a maid to look after the children when both were at work. The children had been baptized in the Catholic church in accordance with the desire of their mother expressed shortly before her death, and at the time of the trial Kathy was in the first grade and Claudie in kindergarten at Sacred Heart School. The Cavettes denied that they were doing anything to alienate the affections of the children for their father, although Mrs. Cavette admitted that at one time she had told the children that their mother’s death was caused from the treatment their father gave her.

The testimony of Mrs. Lockley, speaking for herself, and also for Mrs. Braud, both with the State Department of Public Welfare, was to the effect that the children were not ready for the gruesome explanations of life apparently expounded by their father during the times that he had them with him, and she recommended that the children be left with their grandmother, with the right of reasonable and controlled visitation by the father in the grandmother’s home, at least until the end of the school term and then that they be permitted to spend the summer with their father with the grandmother having the right to see them. The court postponed entering final judgment until August 14, 1961, at which time he entered his order giving the custody of the children to ap-pellees and giving appellant the right to visit the children the last Sunday of each month from 1:30 p. m. to 6 p. m. in Galveston, with the exception of August, and to have the children for a two weeks period with him at his home in Bay City, lasting from the first Sunday in August of each year to and including the third Sunday in August of each year.

There is much testimony to the effect that the Cavettes are suitable and proper persons to have custody of the children, that they are financially capable of taking care of them and rearing them in a proper manner, and that their home is a suitable one in which to rear such children. There is also much testimony to the ef- *441 feet that the visitations of the children with their father resulted in their becoming highly nervous and manifesting ill effects, and that the father possessed no ■financial security more than he had at the time of the trial in June, 1958.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In the Interest of Ferguson
927 S.W.2d 766 (Court of Appeals of Texas, 1996)
Bush v. Cooley
561 S.W.2d 606 (Court of Appeals of Texas, 1978)
In the Interest of R_ D_ P
526 S.W.2d 135 (Court of Appeals of Texas, 1975)
In Re R----D----P
526 S.W.2d 135 (Court of Appeals of Texas, 1975)
De La Hoya v. Saldivar
513 S.W.2d 259 (Court of Appeals of Texas, 1974)
Hightower v. Nocedal
429 S.W.2d 657 (Court of Appeals of Texas, 1968)
Tiller v. Villasenor
426 S.W.2d 257 (Court of Appeals of Texas, 1968)
Casteel v. Mandel
415 S.W.2d 512 (Court of Appeals of Texas, 1967)

Cite This Page — Counsel Stack

Bluebook (online)
357 S.W.2d 438, 1962 Tex. App. LEXIS 2436, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ham-v-cavette-texapp-1962.