When appellee, Donald Warren, and his then wife, now Mrs. Dora Nugent, were divorced on June 16, 1966, "the temporary sole and exclusive custody" of the children was awarded to the maternal grandparents, the appellants herein. This, in effect, confirmed a prior informal arrangement whereby appellants had been keeping the children since the filing of the divorce suit some time earlier that year. The decree further provided that this custodial award would continue "for a period of time to be determined by this Court from the date hereof and at which time the Court will consider the award of the permanent care, custody and control of said children." Each parent was permitted the right to visit with the children "at reasonable times and under reasonable conditions."
Thereafter, each of the natural parents of the children sought a "redetermination of the custody" of the children in a proceeding to which the Andrews were parties. In a non-jury trial, the court denied both prayers for a change since the court was of the opinion "that it would be to the best interest of said minor children for the permanent custody of said children to be awarded to Mr. and Mrs. H. V. Andrews." The decree, dated August 26, 1966, allowed each of the natural parents rights of reasonable visitation, but contained this limitation thereon:
"However, the lawful custodians of said children Mr. and Mrs. H. V. Andrews, shall have the sole and lawful custody and responsibility for said children. The reasonable right of visitation with said children granted herein to Dora Frances Warren Nugent, and Loyd Donald Warren, shall at all times be in keeping with the best interest of said children and suitable to the convenience of Mr. and Mrs. Andrews, the children, and Mrs. Nugent and Mr. Warren."
The three boys, now 9, 8, and 5 years of age respectively, have been living in the home of appellants since March, 1965. The evidence discloses that they are well adjusted, the two older boys, attend school regularly (the younger boy being scheduled to enter school next year), are healthy, and receive religious education. The home of the Andrews is clean, adequate, and little fault can be found with their surroundings. The school teachers of the older boys testified as to their observations and concluded that the boys were in a good home with the Andrews. Neighbors testified as to adequate and proper conditions under which the children were being reared.
All parties are in agreement that the natural mother, the daughter of Mrs. Andrews, is unfit to care for the children, although she testified that in her opinion the children would be better off with their father and his new wife, a former baby-sitter of the children when she and Warren were living together.
Appellee is morally fit, apparently a hard worker, has paid all of the child support ordered by the judgment. He has been married since November, 1966, and he and his new wife, Anna, live in the house formerly occupied by Warren and Dora Nugent, the boys" mother. Anna operated a beauty shop until the Saturday prior to trial, and testified that if she and Warren were awarded the children she would cease working outside of the home.
We have been pointed to no evidence in the record which shows a change in conditions insofar as the Andrews are concerned. The testimony is all confined to what Warren contends are changes in His condition. The changes relied upon by Warren to authorize a revision of the judgment were basically these: (a) he has remarried and has a wife, Anna, who would help him rear the children; (b) is building a room on the house for use by the boys, if he gets *Page 880 them, although the improvements had not been completed at the time of the trial; and (c) he had a different job and makes more money (a monthly increase from approximately $550.00 to $725.00). Additionally, he complains of the fact that the Andrews will not permit him to take the children away from their home for visitation and to go to the movies, etc., although he is permitted to visit them in their home.
As has been stated in the majority opinion, the jury found that the conditions had changed materially since the entry of the decree in August, 1966. Appellants" motion for the peremptory instruction, objections to the charge, motion for judgment non obstante veredicto, motion for new trial, and their points upon this appeal all challenge the sufficiency of the evidence to show materially changed conditions which would justify a change of custody. The point has been raised at every possible stage in the proceedings and must now be met here.
Two of our more experienced judges, both now retired, have participated in the proceedings involved here. Judge P. C. Matthews awarded the custody of the children to the Andrews and Judge Ewing Werlein, who has graced both trial and appellate benches with distinction, presided over the trial of this cause. So, when I approach the decision herein, recognizing that to the trial judge is confided an unusual amount of judicial discretion in such cases, I do so with a great deal of respect for the judges involved. But, feeling that the majority is not following the teachings of our Supreme Court upon the subject, I must dissent.
The most recent expression upon the subject of which I am aware is Knowles v. Grimes, 437 S.W.2d 816, February 19, 1969 (rehearing denied March 19, 1969), wherein Justice Steakley reviewed the decisions which I believe rule this cause. I do not consider the fact that in Knowles the full faith and credit clause of the Constitution was involved in any manner detracts from its applicability to this case. Certainly, we are not required to give more finality to the judgments of sister states than to those of our own. Here, as in Knowles, we are concerned "only with the changes, if any, occurring in the period" subsequent to the August decree.
Knowles, in addition to reiterating the full faith and credit holding in such matters, codified the prevailing law in these respects:
(a) "A final judgment in a custody proceeding is res judicata of the best interests of a minor child as to conditions then existing."
(b) "There must be a showing of materially changed conditions to authorize a change of custody."
(c) "As a matter of public policy, there should be a high degree of stability in the home and surroundings of a young child, and, in the absence of materially changed conditions, the disturbing influence of re-litigation should be discouraged."
(d) Until the party seeking the change of custody shall show materially changed conditions since the entry of the judgment, such party does not "overcome the bar of res judicata" and "presumptions favorable to her (him) as a natural parent did not arise." (437 S.W.2d at 817 — 818.)
By citing Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787 (1955), Justice Steakley impliedly removed one of the main "changes" relied upon by Warren in this instance, the fact that he had established a home since the entry of the decree. Such does not, as a matter of law, warrant a change in custody, but is to be considered as a factor therein within the discretion of the trial judge. (276 S.W.2d at 790).
But, the reference to Taylor v. Meek did more — it invoked this applicable holding:
*Page 881"* * * So it cannot now be questioned that at that time (entry of decree) it was to the best interest of the child
to award custody to the grandparents. In determining the question of the child's best interests, there is this difference between the first award of custody and a change of custody. Because a change of custody disrupts the child's living arrangements and the channels of a child's affection, a change should be ordered only when the trial court is convinced that the change is to be a postitive improvement for the child." (Emphasis and bracketed matter supplied).
The trial court in this instance did not make any findings of fact or conclusions of law, but accepted the verdict of the jury and rendered judgment in conformity thereto. He did, however, suspend the effect of the custody change until the completion of the appeal therefrom. I cannot, therefore, determine whether in entering judgment he did so pursuant to the provisions of Article 4639a, V.A.C.S., making the jury finding binding rather than advisory, or because he approved of the result. The majority correctly notes that the jury found, upon appropriate instruction, that since the entry of the judgment awarding the custody to the maternal grandparents, there "has occurred such a material change of conditions that the best interest of said minor children requires a change of custody" to the father.
The amendment of Article 4639a, V.A.C.S., in 1961, introduced a new factor into the law relating to custody of minors when the fact issues are determined by a jury. The provisions of the amended statute read:
"* * * In any hearing held in this State concerning the custody of a child, whether pursuant to a divorce cause or not, any party to the hearing may, upon assumption of jury costs, demand a jury to determine custody of the child, And the judgment of the court must conform to that determination. * * * " (My emphasis).
I am in accord with the views of Judge Williams of the Dallas Court, speaking in Welch v. Welch, 369 S.W.2d 434, 437 (1963, no writ), that the effect of the amendment is to place the jury finding in a custody case upon the same basis as a jury finding in any other case tried by a jury. Necessarily, this means that in passing upon the points challenging such findings, we invoke the same rules which control in the other civil cases.1
But, I would point out that Justice Steakley also cited Bukovich v. Bukovich, 399 S.W.2d 528 (Tex.Sup., 1966) in support of his decision in Knowles. In Bukovich, there was a verdict of the jury favorable to the mother, which was found to have "an abundance of evidence" to support it (391 S.W.2d at 191), but the Supreme Court held that "this evidence will not support the finding of a material change of conditions since the Indiana decree, from which it follows that the change of custody order of the trial court cannot stand." (399 S.W.2d at 530).
To my mind, the evidence supporting the verdict in Bukovich was stronger than that in the case at bar. There, the father who prevailed in the Supreme Court "admitted in effect that he and the child were not acquainted and that if he should be awarded its custody he would go back to the motel and if necessary spend a week getting acquainted with him." (391 S.W.2d at 192). It seems to me that the "high degree of stability in the home and surroundings of a yound child" is not achieved by a change based upon such insubstantial changes of conditions as are shown here. See: Ogletree v. Crates, 363 S.W.2d 431, 436 (Tex.Sup., 1963) and Mumma v. Aguirre, 364 S.W.2d 220, 221 (Tex.Sup., 1963), both opinions by Chief Justice Calvert and both being cited in Knowles. *Page 882
I think that at best, the father in our case has shown only a slight change of conditions and such is sufficient. In a two-year period (June 1966 — August, 1968), there have been three hearings wherein the father has sought to get the custody of these children. These frequent "hearings are discouraged and not encouraged." Short v. Short, 163 Tex. 287,354 S.W.2d 933, 936 (1962), also cited in Knowles.2 To me, an appropriate answer to the majority is to be found in Justice Smith's concurring opinion in Bukovich (399 S.W.2d at 530):
"There is no evidence of change of conditions in the circumstances of the father, the custodian parent. Therefore, the custody should not be changed. * * *'
The holding of the majority that the jury and the trial judge had the "opportunity to observe and evaluate the personalities of the contending claimants, to weigh the credibility of their testimony, to assess the physical, mental, moral and emotional needs of the children, and to adjudge from personal observation which of the claimants can best meet the needs of the children,' is not a satisfactory answer to our problem. It completely overlooks the element of finality in custodial decrees, the stability of the home of the children, the frequent confrontation of contending parties over their custody, and a host of other factors which seem to be implicit in the series of cases by our Supreme Court mentioned in this dissent. We do not, and the trial court below in this case did not, write upon a clean slate. We look only to the events which have occurred since the last final decree. The majority approaches the solution of the problem as if it were an original determination of custody. If such were true, I would have no occasion to dissent.
Here, there has been no showing of a change in the circumstances of the grandparents to whom custody was given nearly two years before the trial of the case below. Believing that this case is ruled by the teachings of Knowles and the cases therein cited, and that the judgment should be reversed and here rendered for the appellants, I respectfully file this dissent.
Accord: Kirchner v. Van Skike, 410 S.W.2d 467 (1966, no writ); Heiskell v. Heiskell, 412 S.W.2d 774 (1967, error ref., n.r.e.); Huff v. Stafford, 429 S.W.2d 620 (1968, error dism.); Harrelson v. Davis, 415 S.W.2d 293 (1967, no writ).