Roquemore v. Roquemore

• Decision Date: 29 August 1968
• Docket Number: No. 277,277
• Citation: 431 S.W.2d 595
• Parties: Edith ROQUEMORE, Appellant, v. O. B. ROQUEMORE, Jr., Appellee. . Corpus Christi
• Court: Texas Court of Appeals

Page 595

431 S.W.2d 595

Edith ROQUEMORE, Appellant, v. O. B. ROQUEMORE, Jr., Appellee.

No. 277.

Court of Civil Appeals of Texas Corpus Christi.

Aug. 29, 1968.

Harold A. Thomas, Corpus Christi, for appellant.

Sorrell, Anderson & Porter, Wm. R. Anderson, Jr., Corpus Christi, for appellee.

OPINION

SHARPE, Justice.

This is a suit for change of custody of a minor child brought by O. B. Roquemore, Jr., appellee here and plaintiff below, against his former wife, Edith Roquemore, appellant here and defendant below. After jury trial, conducted under circumstances hereafter set out, the trial court rendered judgment based upon the verdict, that custody of the child be awarded to appellee.

Appellant asserts eighteen points of error, which appellee has answered in five counterpoints. Appellant's first eight points assert in substance that the trial court erred in refusing to permit appellant's deposition to be taken in Illinois on written interrogatories in support of her special appearance and plea to the jurisdiction; in refusing to permit appellant's oral deposition to be taken in Illinois, the state of her alleged residence; in requiring appellant's deposition to be taken in the 117th District Courtroom, Corpus Christi, Nueces County, Texas; in striking the appellant's answers to written interrogatories and in refusing to consider the same; and in denying appellant due process and equal protection of law under the State and Federal Constitutions. Appellant's point 9 complains of the denial of a jury on the hearing of appellee's motion to strike appellant's answer. Points 10, 11 and 16 assert in substance that the trial court erred in striking the 'answer of the Plea of Jurisdiction and Special Appearance of defendant without hearing evidence' and in overruling appellant's plea to the jurisdiction of the court. Point 12 asserts that the trial court erred in striking appellant's pleadings and denying her defenses. Points 13, 14 and 15 relate to alleged legal and factual insufficiency of the evidence to support the verdict, and the overruling of appellant's motion for judgment non obstante veredicto. Points 17 and 18 assert that the trial court erred in rendering judgment granting custody of the minor child to appellee when it was undisputed that the child and appellant were not residents of Texas.

Appellee filed his first amended original petition on March 15, 1965. His original petition had been filed on November 10, 1964, but appellant was not served with citation on the same. Appellee's amended petition alleged in substance that both parties were residents of Nueces County, Texas, but appellant was temporarily staying in Alton, Illinois; that on June 17, 1964 appellant was granted a divorce in the Court of Domestic Relations of Nueces County, Texas, in Cause No. 80,243; that appellant was granted custody of Joyce Lynn Roquemore, the minor child, subject to provisions that appellee have temporary custody of the child for three weeks during the summer vacation period and that appellee have certain visitation rights on the first and third weekends of each month and during Christmas week; that appellant had totally refused to obey the said order of the court; that appellant had taken the child to Illinois, had secreted her and had refused to allow appellee his normal visitation rights; that appellant had attempted to change the name of the child to Edith Mills; that appellant refuses to disclose the address of the child or whether she is adequately cared for; that appellant has abrogated her responsibility for custodial rights; and that it would be to the best interest of the child for custody to be changed from appellant to appellee. Appellee prayed that he be granted full custody subject to reasonable visitation rights by appellant.

On April 9, 1965, appellant, through her attorney, filed a special appearance as provided by Rule 120a Texas Rules of Civil Procedure, in which she objected to jurisdiction of the court over her person, and alleged that she was not amenable to process issued by the courts of this State; that since August 1964, she had been a resident of Alton, Illinois. Appellant further objected to jurisdiction because the minor child (whose name was misstated) in custody of appellant had resided in Alton, Illinois since August 1964 and was not within the jurisdiction of the court. Subject to the special appearance, appellant filed a general denial. On April 14, 1965 appellant filed an amended special appearance in which she repeated the allegations of the original special appearance except to correctly state the name of the minor child.

On April 28, 1965, appellant's attorney served written interrogatories on appellee, under Rule 168, T.R.C.P. These were answered on May 6, 1965. On April 30, 1965, appellant's attorney filed notice of intention to apply for a commission to take the deposition of appellant on attached written interrogatories, and served the same by mail on counsel for appellee. On May 5, 1965 appellee filed a motion to strike the interrogatories directed to appellant and that her deposition be taken by oral examination in the courtroom of the 117th District Court of Nueces County, Texas. The trial court set appellee's motion for hearing on May 14, 1965. On May 7, 1965 the clerk issued a commission for the taking of appellant's deposition on the direct interrogatories filed by her. No cross interrogatories were filed by appellee. On May 14, 1965 the trial court, after hearing, granted appellee's motion to strike the written interrogatories propounded to appellant and for her deposition to be taken by oral examination, and ordered that appellant appear for such purpose in the 117th District Courtroom of Nueces County, Texas at 10:00 A.M. on Thursday, June 17, 1965. Formal order to such effect was entered on May 19, 1965. Appellant's attorney excepted to the action taken. On June 4, 1965 appellant filed a motion for modification of the trial court order rendered May 14, 1965 and requested that if appellant's deposition was not to be taken on written interrogatories, then that justice demanded that her oral deposition be taken at Alton, Illinois, the place of her residence. Appellant alleged in substance that she was the mother of two daughters, one eight years of age, and that they required her care and supervision; that it was necessary for appellant's deposition to be taken in support of her special appearance and plea to the jurisdiction; that to require appellant to travel to Corpus Christi for an oral deposition involved great distance, time and expense, created problems concerning her minor child and constituted grievous inconvenience, and was oppressive and unduly burdensome. The court set appellant's motion for hearing on June 11, 1965, at which time it was overruled. Formal order reflecting that action was signed and entered on June 22, 1965. On June 17, 1965 appellant did not appear in Corpus Christi, Texas for her oral deposition as she had been ordered to do. On June 19, 1965, appellant filed another motion reading as follows:

'NOW COMES Defendant Edith Mills Roquemore and praying for orders of this Court as hereinafter set forth, in support thereof would respectfully show the following:

I.

Defendant by order of this Court was scheduled to appear in the Courtroom of the 117th District Court at 10:00 o'clock A.M., June 17, 1965 for the taking of her deposition. It is impossible for Defendant to appear at such time due to the fact that she is under a contract of employment for teaching during the summer months in the State of Illinois, where she resides. She will be so employed until the latter part of August. A request has been made for a hearing on her Plea to the Jurisdiction at which hearing Defendant will be present. Additionally, subject to her Plea to the Jurisdiction this cause has been set for trial for the week of August 30, 1965 at which trial Defendant will be present.

II.

By reason of the premises, Defendant prays that the taking of the deposition of Defendant be postponed to August 26, 1965.'

On June 21, 1965 appellee filed a motion to strike appellant's answer and for judgment, which alleged that appellant had failed to appear on June 17, 1965 for her oral deposition; that she was in contempt of court except for good cause shown; that under Rule 215a, T.R.C.P., all pleadings of appellant should be stricken and after hearing appellee should be granted judgment. That motion was set for hearing on August 6, 1965. On August 6, 1965 counsel for appellant moved that the hearing be postponed until August 26, 1965, and requested the court to consider appellant's motion of June 19, 1965, hereinabove set out. Counsel for appellant made it clear that appellant was insisting on her plea to the jurisdiction, but told the court that he had consulted with appellant and that he had picked out the date for the deposition to be taken on August 26th, and subject to the plea to the jurisdiction, going to trial during the week of August 30, 1965. Counsel for appellant expressly proposed to tender appellant for oral deposition on August 26, 1965. The trial court, in view of such tender, postponed the hearing of August 6th until 2 o'clock P.M. on August 26, 1965, with the understanding that appellant would appear at 10 o'clock A.M. of that same day for her oral deposition. At the conclusion of the hearing of August 6th the trial judge announced that if appellant did not appear as scheduled on the morning of August 26th that he would proceed with the hearing. On August 26, 1965 appellant did not appear for oral deposition, and that afternoon the court proceeded to determine the matters theretofore postponed to that date. The order rendered by the court and formally entered on August 30, 1965, reads as follows:

'On this, the 26th day of August, 1965, came on the be heard Plaintiff's Motion to Strike Defendant's Answer and Motion for Judgment; and came the Plaintiff in...