Boney v. Boney

Decision Date29 July 1970
Docket NumberNo. B--2072,B--2072
Citation458 S.W.2d 907
PartiesJohn M. BONEY, Petitioner, v. Julie Anne BONEY, Respondent.
CourtTexas Supreme Court

Fike & Hunter, King Fike, Dalhart, for petitioner.

Sanders, Scott, Saunders, Brian & Humphrey, Robert H. Smith, Amarillo, A. A. DeLee, Port Arthur, for respondent.

Everett Lord, Beaumont, amicus curiae.

HAMILTON, Justice.

Petitioner, John M. Boney, originated this suit in a divorce court praying that it should clarify and make definite and certain its prior divorce decree which stated that petitioner should have the right of reasonable visitation with his child at reasonable times and places. Respondent, Julie Anne Boney, filed a plea of privilege to be sued in the county of her residence and such plea was overruled by the divorce court. After stating that petitioner's pleading was for either a change in custody or a change in visitation, and that venue for a change in custody is in the county of the residence of the defendant, the Court of Civil Appeals held that for venue purposes there is no distinction between a change in custody and a change in visitation. Therefore, the Court reversed the divorce court's judgment and rendered judgment that respondent's plea of privilege be sustained. 450 S.W.2d 902. We affirm the judgment of the Court of Civil Appeals. 1

On July 3, 1968, the District Court 2 of Sherman County, Texas, granted petitioner a divorce from respondent. Respondent was granted the 'care, custody and control' of the couple's only child, Roy Tim Boney, a boy five years of age. Petitioner was granted 'the right of reasonable visitation at reasonable times and places.' The court also ordered petitioner to make certain child support payments.

On May 28, 1969, petitioner originated the present suit by filing in the District Court of Sherman County, Texas, a pleading denominated as an 'Application to Render and Make Effective the Exercise of Visitation Rights Granted by a Former Decree of this Court in this Divorce Proceeding.' The pleading alleged that at the time of the divorce decree on July 3, 1968, both petitioner and respondent were residents of Sherman County, Texas, that their child was then located in Sherman County, Texas, that petitioner has since remarried and is now a resident of Hansford County, Texas, and that respondent is now a resident of Jefferson County, Texas. Petitioner further alleged that the divorce decree set out no guidelines as to what is 'reasonable visitation at reasonable times and places,' that he and respondent have been unable to agree upon what is 'reasonable,' that he has been denied reasonable visitation, that it is now necessary that the District Court of Sherman County determine and specify the time and place that petitioner may exercise his rights of visitation without the supervision of respondent or her parents, that petitioner now has a good home in which the child could visit for a period of time during the summer school vacation, and that due to the present distance between petitioner's residence and respondent's residence a great hardship and inconvenience would result if petitioner's visitation rights must be exercised only in Jefferson County. Petitioner's pleading concluded by praying that the Court make definite and certain petitioner's rights of visitation, considering all the facts and circumstances.

In his Controverting Affidavit in reply to respondent's plea of privilege, petitioner stated:

'* * * the only relief which plaintiff is seeking to obtain by the petition filed herein is for this court to make definite and certain that which is indefinite and uncertain in this court's decree heretofore entered in this cause as to the visitation rights of this plaintiff; that only this court can decide and determine the meaning and effect of the decree entered by this court and no right to the change of custody or any other matter is involved in this suit, whereby the venue of the same would be in the County of the defendant's residence. * * *'

The testimony given during the hearing on respondent's plea of privilege concerns primarily the conditions existing in 1968 at the time the divorce decree was entered, the problems petitioner has encountered in attempting to visit the child, and the present circumstances tending to justify petitioner's desire to have the child visit in petitioner's home for some period of time during the summer months, perhaps 'two weeks or fifteen days.'

Basically petitioner contends that the divorce court has continuing exclusive jurisdiction in this matter for one of two alternative reasons:

1. His pleading does not seek a change in visitation but merely seeks a clarification of the prior decree, a matter over which a trial court retains continuing exclusive jurisdiction.

2. If his pleading is construed to be a request for a change in visitation, then under present law the divorce court has continuing exclusive jurisdiction.

In support of his first alternative that a trial court has continuing exclusive jurisdiction to clarify and make definite and certain its prior decree, petitioner cites Knox v. Long, 152 Tex. 291, 257 S.W.2d 289 (1953); Carle v. Carle, 234 S.W.2d 907 (Tex.Civ.App.1950) certified to the Supreme Court at 149 Tex. 469, 234 S.W.2d 1002; Ex Parte Gonzalez, 111 Tex. 399, 238 S.W. 635 (1922); Ex Parte Lohmuller, 103 Tex. 474, 129 S.W. 834 (1910); Chambers v. Hodges, 3 Tex. 517 (1848); and Flannery v. Eblen, 106 S.W.2d 837 (Tex.Civ.App.1937) n.w.h. All of these cases involve a court's continuing exclusive jurisdiction but we have determined that none of these cases are controlling in the present case. Knox v. Long, supra, involved a case which in one term had been dismissed for failure to prosecute but was reinstated on the docket during the next term. This Court concluded that the dismissal was due to an error on the part of the clerk and that the judge had never intended to dismiss the case. Citing Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040 (1912), which involved a clerical omission, this Court stated the general rule that '* * * a court has the inherent power to correct a judgment by entry nunc pro tunc so as to properly recite the effect of the court's judgment. * * *' Carle v. Carle, supra, was a divorce case in which the Court of Civil Appeals stated:

'The appeal that was perfected in this cause is from the judgment of the trial court entered July 19, 1949. No appeal was perfected from the judgment of the trial court entered December 12, 1949, by which the $2666.79 was impounded in the registry of the court and the receiver ordered discharged. We have no jurisdiction of this matter. The trial court has the power and duty to determine the proper disposition of this fund.'

Ex Parte Gonzalez, supra, involved a divorce suit which was filed in one district court but was later transferred to another district court. The latter court held the husband in contempt for violating an injunction issued by the first court. On appeal this Court held that '* * * one court in no case is authorized to punish contempts of another court.' In Ex Parte Lohmuller, supra, this Court recognized the general rule that once a trial court's judgment becomes final that court is without jurisdiction to make any readjudication; however, this Court further stated:

'The jurisdiction sometimes remains to take action authorized by law in the cause for the protection of persons or property in the control of the court, the necessity for which may arise after the judgment has been pronounced, and the proper exercise of which may be entirely consistent with the integrity of the final judgment and therefore not affected by the rule of law on which relator relies.'

This Court concluded that the trial court, during a term subsequent to the term in which a divorce decree was ordered, could properly order a husband to pay alimony to his wife during the pendency of the appeal of the divorce decree. Chambers v. Hodges, supra, involved an application to this Court requesting reconsideration of a judgment entered in the prior term. This Court held that it could not reconsider the prior judgment; however, a general exception was stated:

'This limitation upon the authority of the court will not prevent the correction of clerical errors or mistakes, or defects of form, or the addition of such clause as may be necessary to carry out the judgment of the court or to declare a judgment null and void which was rendered in a case not legally before the court.'

Flannery v. Eblen, supra, involved facts not significantly dissimilar from those in the present case. The Court of Civil Appeals held that a divorce court has continuing exclusive jurisdiction to clarify the ambiguity surrounding the meaning of 'reasonable visitation' as awarded in its prior judgment. The Court relied primarily upon Chambers v. Hodges, supra, and Trammell v. Trammell, 25 Tex.Supp. 261 (1860). For reasons stated hereinafter we disapprove Flannery v. Eblen.

We do not construe the pleading involved in Flannery v. Eblen nor petitioner's pleading in the divorce court in the instant case...

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23 cases
  • Ex parte Barnett
    • United States
    • Texas Supreme Court
    • May 14, 1980
    ...venue for motions to change child custody or visitation rights was governed by the general venue statute, article 1995. Boney v. Boney, 458 S.W.2d 907, 911 (Tex.1970). With the enactment by the legislature of the Texas Family Code in 1973, however, a new concept of "the court of continuing ......
  • Gunther v. Gunther, 594
    • United States
    • Texas Court of Appeals
    • March 22, 1972
    ...134 S.W.2d 1016, 1020 (1940); 27B C.J.S. Divorce § 317(1)d., p. 535 (1957). Lakey has been consistently followed in Texas. Boney v. Boney, 458 S.W.2d 907, 911 (Tex.Sup.1970). Due service of citation is required in such new and independent action. Castleberry v. Castleberry, 134 Tex. 409, 13......
  • Rodgers v. Williamson
    • United States
    • Texas Supreme Court
    • January 17, 1973
    ...required for a change of custody. If the prior order is unworkable and inappropriate, the trial court may modify it. Boney v. Boney, 458 S.W.2d 907 (Tex.1970); Leithold v. Plass, Tex.,413 S.W.2d 698 (1967); Schwartz v. Jacob, 394 S.W.2d 15 (Tex.Civ.App.1965, writ ref'd n.r.e.). Visitation m......
  • Hollis v. Hollis
    • United States
    • Texas Court of Appeals
    • March 25, 1974
    ...a modification of visitation privileges need go no further than to show the prior order is unworkable and inappropriate. Boney v. Boney, 458 S.W.2d 907 (Tex.1970). Having effectually found that the foreign order of visitation was unworkable and inappropriate, the trial court was authorized ......
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