The trial court could have properly rendered no judgment consistent with his findings of fact other than the judgment he did render. Findings incorporated in No. VII to effect that considering the child's well-being for the duration of the war or of the military service of his father only, his best interest would be served by leaving him in the custody of appellant; but that considering the future beyond the duration of the war or the military service of his father, his best interest would be served by awarding his custody to his father, are not findings on material ultimate issues, but are evidentiary only and not controlling. The controlling finding is that incorporated in the judgment, i. e. that the best interests of the minor require that he be given over to the complete custody of his father. Under Findings II and III, there can be no doubt but that appellee surrendered custody of his son to appellant within the meaning of the rule enunciated in Dunn v. Jackson, Tex.Com.App., 231 S.W. 351, 353, that:
"Where he has surrendered this custody to a third person, who performs the duties incumbent upon him as the natural guardian, a new condition is created which inures to the benefit of the child. The law does not prohibit such a transfer by the parent, but, on the contrary, allows the child to reap the benefit therefrom, and upon a habeas corpus proceeding by the parent to regain custody of the child the paramount interest of the child becomes the dominant issue. Legate v. Legate, 87 Tex. 248,28 S.W. 281."
It is apparent from these findings that it was contemplated by both parties that appellant should perform the duties encumbent upon appellee as the father and natural guardian of the infant, at least until appellee should be discharged from the United States Army — an indefinite period of time. Every reason underlying the rule of Dunn v. Jackson exists in this case. Here, as there, a new condition, a new relationship was created by the father's voluntary agreement which inures to the benefit of this child. That the father made an allotment for the support of his child during this period did not change the fact that custody was voluntarily surrendered by him to appellant.
Therefore, the other rule enunciated in Dunn v. Jackson: "the burden of proof rested with the respondent to establish facts necessary to overcome the legal presumption in favor of the parent's custody. It does not require, however, that respondent prove the parent disqualified by misconduct or misfortune; but the burden resting upon respondent is met by establishing that the best interests of the child demand that she remain in the custody of respondent." is applicable.
The second paragraph of the court's Conclusion of Law No. II, if applied to the facts of this case, is in conflict with this rule. It is substantially in accord with *Page 88 a portion of the opinion in State v. Richardson, 40 N.H. 275, quoted in State v. Deaton, 93 Tex. 243, 54 S.W. 901, 902, but the holding in the Deaton case was based on a fact finding that:
"I find that the interest and welfare of the child, Austin Dillard,will be as well, if not better, subserved by remaining with the respondent and his wife, who have adopted it as their own, than if his possession and custody were given to his mother, the applicant herein." (Italics mine.)
This was part of the facts which the Supreme Court said in State v. Deaton "do not establish with that certainty which the courts must require that the interest of the child, Austin Dillard, or of society itself, demands that he shall be taken from his mother and continued in the possession of another."
Here the trial court's finding incorporated in its judgment that the best interest of the child will be subserved by awarding its custody to its father is unequivocal and is amply supported by the evidence. It is not attacked by appellant. Does the court's conclusion of law above referred to necessarily lead to the inevitable conclusion that in determining that all important issue of fact, the trial court considered only the qualifications of the father to have the custody of his child? If so, a reversal would necessarily follow unless the evidence is insufficient to overcome the legal presumption enunciated in Weir v. Marley, 99 Mo. 484, 12 S.W. 798, 6 L.R.A. 672, and cited with approval in Legate v. Legate, 87 Tex. 248, 28 S.W. 281, State v. Deaton, supra, and in many other cases by the Supreme Court:
"That the custody of the child is by law with the father, unless it appears by satisfactory evidence that the best interest of the child demands that he should be deprived of that custody, and upon him who so avers devolves the burden of proof, — the presumptions are against it." [99 Mo. 484, 12 S.W. 801.]
In my opinion, the evidence would have supported a finding by the trial court that the best interests of the child would be subserved by awarding its custody to its grandmother. It is elementary that the trial court is vested with a broad discretion in determining this question. The grandmother had cared for the infant since its birth. She was a closer blood relative to him than his father's uncle and his wife who were to have the actual custody of the child until the father should be discharged from the United States Army. I do not wish to be understood as intimating that in my opinion the trial court should have made a finding that the child's best interest would have been subserved by awarding its custody to its grandmother. He probably would and should be influenced by the demeanor of the witnesses and their manner of testifying. I do think that the evidence contained in the record before us is sufficient to sustain such finding had he so found. Therefore, the question above indicated is presented. True, appellant has not raised it specifically by any of her points. In my opinion, it is fundamental.
If standing alone, the conclusion in the second paragraph of II above referred to would be susceptible of no other interpretation than that the court in determining the issue as to what would be for the best interest of the minor considered the qualifications of his father alone; but in Conclusion No. III, the court says:
"There are no grave or weighty reasons why he (appellee) should be deprived of the custody of his child."
Considering this conclusion with the second paragraph of Conclusion No. II, it does not affirmatively appear that the court erroneously applied his conclusion of law in arriving at the finding of fact incorporated in the judgment. The court having found as a fact that appellee was a proper person to have the custody of his child (Finding No. VI), the conclusion that there were no grave or weighty reasons why he should be deprived of his custody would have been unnecessary and meaningless if the court deemed the father's qualifications the only material fact to consider in determining the controlling issue as to the child's best interest. It follows that the court may have considered other relevant matters than the father's qualifications in arriving at his finding that the best interest of the child required that his custody be awarded to his father. In support of the judgment we must presume that he did so.
I concur in affirmance of the judgment. *Page 89