Moore v. Moore

213 S.W. 949, 1919 Tex. App. LEXIS 871

• Court: Court of Appeals of Texas
• Decided: June 10, 1919
• Docket: No. 475.
• Status: Published

Opinion

HIGHTOWER, C. J.

Appellee, Mayme Moore, filed suit in the district court of Harris county against her husband, Ferdinand Moore, for divorce, and also prayed that she be awarded, upon the dissolution of the marriage, the possession and custody of a girl child, Gussie Catherine Moore, the only issue of the marriage between the parties, whose age was nine years. Appellant, after denying the grounds upon which appel-lee sought a divorce, filed a cross-action praying that he be granted a divorce upon the ground that appellee had been guilty of adultery, and further prayed that the possession and custody of their said child be awarded to him. There is no necessity for stating the history of this litigation in further detail.

Upon hearing of the case before the court without a jury, judgment was rendered in favor of appellant upon his cross-bill for a divorce as prayed, but the court decreed that the possession and custody of said minor should be awarded to appellee. From this judgment appellant has brought the case to this court, and assigns error upon the ruling of the trial court in awarding the custody and possession of said minor to appel-lee.

The court filed findings of fact and conclusions of law, as follows: ■

“Findings of Fact.

“(1) I find that plaintiff and defendant are husband and wife, having married on or about the date alleged' in plaintiff’s, petition.

“(2) I find from the evidence that plaintiff has been taken in adultery with another man, as alleged in defendant’s cross-action.

“(3) I find- from the evidence that plaintiff and defendant have one female child, named Gussie Catherine Moore, whose age is nine years.

“ (4) I further find from the evidence that the welfare of the child and its best interest require that plaintiff have the care, custody, and control of said child; that plaintiff is amply able, financially, to care for and educate the child, and will keep it surrounded by good influences and give it a good educatión, and proper moral training suitable to her race; that the child is now in charge of the Houston Academy, a reputable institution of the city of Houston, the superintendent of which is Prof. Hodges, a man of good intellectual attainments and culture and good morals.

“(5) I further find from the evidence that while plaintiff has, in the past, committed adulterous acts, as above found, I now find that she has long since ceased such illegal and immoral practices.

“(6) The court further finds, from personal knowledge and personal investigation into the matter, that the institution at which plaintiff now has such child placed, .to wit, the Houston Academy, is a reputable institution, and the man at the head of it, Prof. Hodges, is a man of high morals, good education, and high intelligence, and one well fitted to teach and direct the ehildj and that the plaintiff is highly regarded by her employers and stands in high regard with members of her own race, to wit, the negro race, and the fact that she has in the past committed the indiscretions alleged in defendant’s crossraction does not seem to affect her standing with that race.

“Conclusions of Law.

“I find that the bonds of matrimony existing between plaintiff and defendant should be dissolved.

“The best interests and welfare of the child, Gussie Catherine Moore, requiring that plaintiff have the care, custody, and control of her, the said child, I find that such care, "custody, and control ought to be and is here adjudged to the plaintiff.”

After consideration of the brief statement of facts which accompanies this record, we are unable to say that the trial judge was .clearly wrong in his conclusion of fact that the best interests and welfare of the child, Gussie Catherine Moore, demanded that her possession and custody be awarded to the appellee.

[1, 2] District courts are vested, in this state, with very broad discretion in matters of this kind, and it would have to be a very clear case of abuse of that' discretion before an appellate court would interfere with its exercise. It is true that the trial court found that appellee had been guilty of adultery and granted the decree of divorce on that ground; but he also expressly found, in effect, that appellee had ceased such conduct, and that, notwithstanding such past misconduct, it was best for the interests of the child that its possession and custody be left with her.

Upon the whole case, we have concluded that we would not be authorized to disturb the trial court’s judgment in this matter, and appellant’s assignments of error are overruled, and the judgment affirmed.

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