Tims v. Tims

201 S.W.2d 865, 1947 Tex. App. LEXIS 904
CourtCourt of Appeals of Texas
DecidedApril 11, 1947
DocketNo. 5771
StatusPublished
Cited by16 cases

This text of 201 S.W.2d 865 (Tims v. Tims) 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
Tims v. Tims, 201 S.W.2d 865, 1947 Tex. App. LEXIS 904 (Tex. Ct. App. 1947).

Opinion

PITTS, Chief Justice.

This is a suit for a divorce and the custody of two minor children. The case was tried to a jury which found that because of cruel treatment to appellee, Opal Tims, by appellant, Gilbert Tims, she was entitled to a divorce from him; that appellee was entitled to have the custody of the two minor children; that appellant should be required to pay $50 per month' for the support of the two minor children and that all of the household furniture belonging to the parties should be awarded to appellee.

The trial court followed the findings of the jury and rendered judgment accordingly from which judgment appellant perfected an appeal to this Court; however, he has not appealed from the issue of divorce. He charges in four 'points of error that the trial court abused its discretion in awarding the appellee the custody of the children and , the community household furniture and in requiring him to pay $50 per month for the support of the said children; that the sum fixed for the support of the children is unreasonable, cannot be performed by him, and that such an allowance is not supported by the pleadings or the evidence; that the trial court did not have jurisdiction to divest title to the personal property out of appellant and into appellee, and that the trial court erred in requiring the payments fop ,the support of the children to be made retroactive by its judgment.

The record reveals that the trial court permitted the parties much latitude in developing the facts in this case and that the witnesses heard were appellee, her parents, her sister, appellant, his mother, and his ’ sister. The said two minor children, Margie Sue, age- eleven and in the sixth grade at school and Don Edwin, age ten and in the fourth grade at school, also testified.

The record further .reveals that the parties were married July 29, 1928; that their oldest child is a daughter who was married and lived in the State of Missouri; that they have an older son more than fourteen years of age who has lived with his father and his father’s relatives since the separation of his parents on July 10, 1946; that after they married the parties had lived on farms at several different places on the Texas Plains, and that appellant had either farmed for himself or had been employed on a farm until several years before their separation when they moved to Amarillo where the children attended the public school and appellant worked for the American Smelting and Refining Company until some time after their separation; that appellee had engaged in some light work for meager wages during a part of the time they had lived in Amarillo; that ap-pellee had undergone surgery in recent years and her health was not good.

In some instances the evidence was conflicting but we find nothing in the testimony that would indicate that appellee is not a fit and proper person to have the custody of the two minor children in question and that is the paramount issue for our consideration here. Where evidence is conflicting the trier of facts has the exclusive function of determining the credibility of the witnesses and the weight to be given to their testimony. Mortensen v. Mortensen, Tex.Civ.App., 186 S.W.2d 297. In this case the jury was' the trier of facts. The trial court was not bound by the findings of the jury on the issues of custody of the children or the division of the property but the trial judge evidently .agreed with the jury and followed its findings. The trial court has broad discretionary powers in awarding the custody of minor children and making disposition of community property in a divorce case. The awarding of custody of minor children in such a case as this is addressed to the sound discretión of the trial court and will not be disturbed on appeal uñléss1 thé award is so contrary to the great preponderance of the evidence as to show an abuse of discretion. Lanford v. Carruth, Tex.Giv.App., 186 S.W.2d 368 (and other authorities there cited. In this case the [867]*867evidence showed that the parents of appel-lee were willing and able to help appellee care for and school the two children in question and that the mother and sister of appellant were likewise able and willing to help care for and school the said children if they were awarded to appellant.. The evidence further reveals that appellant is a big strong man and that he sometimes used physical force upon his wife in order to control her acts and will power and to compel her to obey his wishes and that on certain occasions he had resorted to such violence upon her in the presence of the two minor children herein named. Such a practice is condemned by both English and American jurisprudence, and has always been condemned by the Texas courts. Mortensen v. Mortensen, supra. The evidence further reveals that appellant often used corporal punishment upon the children and that sometimes such punishment was quite severe, all of which may have indicated to the jury and the trial judge that appellant was a man of a violent temper and was sometimes unreasonable. This Court recognizes the necessary rule of securing obedience to authority in the matter of the discipline of the children of a family and, that without obedience government in the home, school and the nation will be impossible. In some instances it may be necessary to spank the child at one time or another in order to secure such obedience. Usually such will not often be necessary if the parents begin early in the child’s life to teach it obedience by the process of proper reasoning and thus teach it respect for authority and willing obedience to the rules of government. We do not approve of severe corporal punishment in order to secure such results in the rearing of children and we do not believe such results can be secured by such means. Both the jury and the trial court concluded after hearing all the testimony that it would be for the best interest of the said children that they be awarded to the appel-lee, their mother, ánd the evidence supports their conclusion in this matter. Appellant’s points to the contrary are therefore overruled.

In her pleadings appellee asked for support and maintenance of the children in “a sum of not less than $20- per month for each of the children”, but she did not fix. a maximum limit on the amount requested. In her testimony she asked for at least $20 per month for each child but 'fixed no maximum sum for' their support. Appellant’s attorney proved by ap-pellee’s father on • cross-examination that $40 per .month for the two children in question would probably not be enough to support and maintain them. Appellant admits that $50 per month is not too much for the children but contends that he is npt financially able to pay that sum. The evidence reveals that appellant is thirty-nine years old and that he is a strong man able to wqrk. He testified that when he worked for the smelter in Amarillo his monthly wages were from $180 to $200 per month after deducting the withholding tax. He further testified that if he were given the custody of the two children in question he would take them to live with his mother in Hedley, Texas, and that he would bririig home “enofigh butter and eggs and milk, and shoes and stockings, etc.” to support them. When appellant’s mother was asked as a witness about how much money appellant earns -she replied, “I don’t know exactly how much, but I know he makes enough money that he can 'take care of the three children if necessary”.

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Bluebook (online)
201 S.W.2d 865, 1947 Tex. App. LEXIS 904, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tims-v-tims-texapp-1947.