Tab v. Wlb

598 S.W.2d 936, 1980 Tex. App. LEXIS 3399
CourtCourt of Appeals of Texas
DecidedApril 30, 1980
Docket6890
StatusPublished

This text of 598 S.W.2d 936 (Tab v. Wlb) 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
Tab v. Wlb, 598 S.W.2d 936, 1980 Tex. App. LEXIS 3399 (Tex. Ct. App. 1980).

Opinion

598 S.W.2d 936 (1980)

T. A. B., Appellant,
v.
W. L. B., Appellee.

No. 6890.

Court of Civil Appeals of Texas, El Paso.

April 30, 1980.
Rehearing Denied May 28, 1980.

*937 Barnes & Lewis, P. C., W. R. Barnes, Tryon D. Lewis, Odessa, for appellant.

Law Offices of Bill McCoy, P. C., Bill McCoy, John W. Cliff, Jr., Odessa, for appellee.

OPINION

STEPHEN F. PRESLAR, Chief Justice.

T.A.B. appeals from an order removing her as managing conservator of her six-year-old son and appointing her former husband, W.L.B., as managing conservator. Trial was to a jury which returned a verdict on two special issues finding (1) that the circumstances of the child or T.A.B. have so materially and substantially changed since the divorce judgment that the retention of T.A.B. as custodian of the child would be injurious to his welfare, and (2) that the appointment of W.L.B. as custodian of the child would be a positive improvement for the child. Questions as to the sufficiency of the evidence to support those jury findings and the failure of the Court to grant a mistrial or new trial because of the improper conduct between a juror and a witness are presented. We affirm.

The two jury issues track Section 14.08(c)(1), Tex. Family Code Ann. (Supp. 1980), which provides that after a hearing the court may modify an order or a portion of the decree that:

(1) designates a managing conservator if the circumstances of the child or parent have so materially and substantially changed since the entry of the order or decree to be modified that the retention of the present managing conservator would be injurious to the welfare of the child and that the appointment of the new conservator would be a positive improvement for the child; ...

Appellant assigns error in that the Court failed to grant her motion for instructed verdict because there is no evidence to support either of the jury findings. Error if also assigned to the Court's overruling Appellant's *938 amended motion for a new trial because of the factual insufficiency of the evidence to support the issues.

Section 11.13, Tex. Family Code Ann., provides for a jury trial in all suits affecting the parent-child relationship except adoptions. Prior to its amendment effective September 1, 1975, subparagraph b of Section 11.13, by rather conflicting language, provided that the judgment of the court must conform to the jury's determination. The Code provisions was an amendment of Article 4639a in effect since 1961, and, in 1974, the Corpus Christi Court of Civil Appeals in In re Y, 516 S.W.2d 199 (writ ref'd n. r. e.), reviewed prior decisions and expressly held that the jury verdict was binding on the trial court. See also Taft v. Johnson, 553 S.W.2d 408 (Tex.Civ.App.—El Paso 1977, writ ref'd n. r. e.). Any doubt as to the finality of the jury verdict has been removed by the 1975 amendment of Section 11.13 which provides:

(b) The court may not enter a decree that contravenes the verdict of the jury, except with respect to the issues of the specific terms, conditions of access to the child, support of the child, and the rights, privileges, duties and powers of conservators, on which issues the verdict, if any, if advisory only [emphasis supplied].

The trial Court had the power to grant Appellant's motion for a directed verdict. Becerra v. Garibaldo, 526 S.W.2d 780 (Tex.Civ.App.—Corpus Christi 1975, writ ref'd n. r. e.). In the face of the language of the Statute, it cannot enter a decree that contravenes the verdict of the jury once it is rendered. As will be seen from the evidence to be discussed, there was evidence of probative force on the issues complained of and the Court did not err in overruling Appellant's motion for directed verdict. Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194 (1952).

Appellant has points of error that there is no evidence to support the jury's answers. This poses the question of whether we should consider such points, for to uphold them would require rendition of judgment, as distinguished from remand. Section (b) of the Statute is in contravention of Rule 301, Tex.R.Civ.P., which provides "the court may render judgment non obstante veredicto if a directed verdict would have been proper, and provided further that the court may, upon like motion and notice, disregard any Special Issue Jury Finding that has no support in the evidence." The language of the Legislature is clear that as to these matters we cannot enter a judgment that contravenes the verdict of the jury. Therefore, we decline to consider the "no evidence" points.

The trial Court could have granted a motion for a new trial, Becerra v. Garibaldo, supra, and we turn to a review of the factual sufficiency of the evidence. In reviewing "factual sufficiency" points of error, the Court considers all of the evidence to determine whether the findings are so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). The parties were divorced November 5, 1976, and this case came to trial in December of 1978. The evidence is that Appellant remarried within a month of the divorce, and separated from this husband within two months. She then moved from Odessa to McCamey, Texas, and stayed there some two months, and was unemployed for one of those months. Prior to moving to McCamey, Appellant met W.H., and began dating him in March of 1977, and soon moved back to Odessa and took a secretarial job from mid-April until late June of 1977. In June, she divorced the second husband. From June of 1977 until September, Appellant was unemployed, lived with her mother, but much of her time was spent with W.H. She and her child would get up each morning and go to his house, often have breakfast there, and spend the day using the swimming pool and other things. She would fix dinner for W.H., and would remain for the evening *939 until 10:00 or 10:30 p. m., although a number of times it was much later. This routine occurred every day "except for a few days" for some two-and-a-half months, and, in addition thereto, Appellant and W.H. would spend alternate weekends out of town, often in Del Rio where he had a sailboat. The child did not accompany them on these weekend ventures where they stayed in a motel, but did accompany them other times when they made other trips, particularly to W.H.'s cabin in Ruidoso. Trips to Mexico were also taken. The evidence is that Appellant and W.H. did not sleep together when the child was present. Following this summer program, Appellant obtained employment, but she and the child continued to have dinner and spend their evenings at the home of W.H. She also continued her weekend trips, and she had the use of his car and credit card. This relationship with W.H. continued up until the time of trial, except for a brief period when they "broke up" and he dated others.

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Related

In Re King's Estate
244 S.W.2d 660 (Texas Supreme Court, 1951)
Mumma v. Aguirre
364 S.W.2d 220 (Texas Supreme Court, 1963)
Davis v. Duke
537 S.W.2d 519 (Court of Appeals of Texas, 1976)
Mitchell v. Burleson
466 S.W.2d 646 (Court of Appeals of Texas, 1971)
Becerra v. Garibaldo
526 S.W.2d 780 (Court of Appeals of Texas, 1975)
Fountain v. Ferguson
441 S.W.2d 506 (Texas Supreme Court, 1969)
Burt v. Lochausen
249 S.W.2d 194 (Texas Supreme Court, 1952)
Bukovich v. Bukovich
399 S.W.2d 528 (Texas Supreme Court, 1966)
Wallace v. Fitch
533 S.W.2d 164 (Court of Appeals of Texas, 1976)
Knowles v. Grimes
437 S.W.2d 816 (Texas Supreme Court, 1969)
Taft v. Johnson
553 S.W.2d 408 (Court of Appeals of Texas, 1977)
In Re Y.
516 S.W.2d 199 (Court of Appeals of Texas, 1974)
Watts v. Watts
563 S.W.2d 314 (Court of Appeals of Texas, 1978)
Colbert v. Stokes
581 S.W.2d 770 (Court of Appeals of Texas, 1979)
De Llano v. Moran
333 S.W.2d 359 (Texas Supreme Court, 1960)
T. A. B. v. W. L. B.
598 S.W.2d 936 (Court of Appeals of Texas, 1980)

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Bluebook (online)
598 S.W.2d 936, 1980 Tex. App. LEXIS 3399, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tab-v-wlb-texapp-1980.