Berner v. Berner, 11099.

• Decision Date: 09 January 1941
• Docket Number: No. 11099.,11099.
• Citation: 146 S.W.2d 1017
• Parties: BERNER et ux. v. BERNER et al.
• Court: Texas Court of Appeals

Page 1017

146 S.W.2d 1017

BERNER et ux. v. BERNER et al.

No. 11099.

Court of Civil Appeals of Texas. Galveston.

January 9, 1941.

Rehearing Denied January 30, 1941.

Error from District Court, Austin County; M. C. Jeffrey, Judge.

Action by G. R. Berner, Jr., against Katherine Downs Berner, for divorce, property settlement, and custody of a minor child wherein G. R. Berner, Sr., and wife intervene, seeking custody of the child, and wherein Katherine Downs Berner subsequently filed an application for custody of the child. To review an adverse judgment, G. R. Berner, Sr., and wife bring error.

Affirmed.

C. C. Glenn, of Sealy, W. D. Bryan, of Bellville, and Lawler, Wood & Childress and Virgil Childress, all of Houston (Virgil Childress, of Houston, of counsel), for plaintiffs in error.

Vinson, Elkins, Weems & Francis, of Houston, for defendant in error G. R. Berner, Jr.

C. D. Duncan and J. Lee Dittert, both of Bellville, for defendant in error Katherine Downs Berner.

GRAVES, Justice.

This appeal, through writ of error, by Mr. and Mrs. G. R. Berner, Sr., against Mr. and Mrs. G. R. Berner, Jr., is from a final judgment of the district court of Austin County, of date February 16, 1940, in cause No. 7243 upon its docket, divesting the custody of the eight year old grandson of the former and son of the latter out of its grandparents, and vesting it in its parents, in these terms: "It Is Ordered, Adjudged, and Decreed by the Court that the custody of David Downs Berner, the minor child of Lieutenant G. R. Berner, Jr., and Katherine Downs Berner, be, and the same is hereby, denied to and divested out of G. R. Berner, Sr., and wife, Louise Berner, and placed, and ordered placed, in the custody of Lieutenant G. R. Berner, Jr., and Katherine Downs Berner, as hereinbefore in this decree stipulated, and the said G. R. Berner, Sr., and wife, Louise Berner, are hereby commanded to give and deliver unto the custody of Lieutenant G. R. Berner, Jr., and Katherine Downs Berner, (said child) as herein stipulated, made certain and provided for in this decree."

By a prior judgment in the same cause and between the same parties, which had been originally filed by G. R. Berner, Jr., against his then wife, Katherine Downs Berner, for a divorce, property settlement, and custody of the same child, as between those two, in which cause at that time Mr. and Mrs. G. R. Berner, Sr., had become parties by intervention, seeking for themselves alone the custody of such child, the court had on July 27 of 1939 divorced the junior Berners, settled their property interests, and divided the custody of such minor as between them; no appeal as to those determinations was taken by any party thereto, hence they became final, but with reference to the custody of the child, as between the junior and senior Berners, it further decreed as follows:

"It Is Further Ordered, Adjudged and Decreed by the Court that this Court retains jurisdiction of that portion of this suit relating to custody and support of the minor, David Downs Berner, and to, either upon further hearing the intervention of G. R. Berner, Sr., et ux., which is not this day determined, or upon hearing other motions or pleadings of plaintiff or defendant, or upon the Court's own motion, alter or change the provisions hereof relating to such custody and support as to the Court may seem necessary from time to time, and to the best interests of said minor. The status and custody of the minor shall be undisturbed, pending further determination of the custody of the child."

On the present appeal, at the outset in this court, the defendant-in-error, Katherine Downs Berner, the former Mrs. G. R. Berner, Jr., her divorced husband, G. R. Berner, Jr., having meanwhile married another wife, moved this court to dismiss this writ-of-error so presented here by the senior Berners, on the alleged ground that they, the plaintiffs-in-error, have no substantial interest in the subject matter thereof—that is, the trial court's order dealing with the custody of the minor—nor any right to seek a revision of that order, and are estopped to contend that they have any such interest; in that the stated judgment of July 27 of 1939 establishing the minor's custody in the defendants-in-error herein, under R.S., Article 4639a, was final and cannot be questioned by anybody, in the absence of unchanged conditions; and, further, because they voluntarily dismissed their intervention plea in such former cause on February 9 of 1940, and also agreed to the former awarding of such custody to the defendants-in-error, after bringing such child into and submitting it to the jurisdiction of the court in that cause.

That motion, having been taken for decision with the cause itself, is refused, under the conclusion that the plaintiffs-in-error do...