Bukovich v. Bukovich
| Decision Date | 12 January 1966 |
| Docket Number | No. A-10881,A-10881 |
| Citation | 399 S.W.2d 528 |
| Parties | Joseph J. BUKOVICH, Petitioner, v. Sally A. BUKOVICH, Respondent. |
| Court | Texas Supreme Court |
Neal, Hazlewood & Wolfram, Amarillo, for petitioner.
Clayton, Kolander, Moser & Templeton, Amarillo, for respondent.
This case presents questions for decision in the unfortunate situation when natural parents are involved in child custody litigation. Petitioner, the father, and Respondent, the mother, were divorced in Porter County, Indiana, in June of 1962. At the time, Mark Lawrence Bukovich, their only child, was less than two years of age. The mother was awarded custody of Mark, with the provision that she not leave the state. Her custody rights appear to have been reaffirmed by the Indiana court on subsequent occasions. In a still later proceeding instituted by the father for a change of custody, the Indiana court entered an order dated December 2, 1963, reciting Respondent to be in default, although duly notified, finding her in contempt of court, finding that she 'is not a fit and proper person to have custody * * *' and ordering that custody of the child be 'changed and granted' to the father. The mother and child left Indiana before this decree could be executed and were later located by the father in Amarillo, Texas. The father under date of January 10, 1964, filed a petition in the 108th District Court of Potter County, Texas, for a writ of habeas corpus to obtain possession of the child pursuant to the Indiana decree. The case was transferred to the Court of Domestic Relations of Potter County. The mother answered and alleged there had been a change of conditions since December 2, 1963, of sufficient nature to warrant a reaward of custody to her. Trial was to a jury, with the mother assuming the burden of establishing a material change of conditions since the Indiana decree, and that an award of custody to her would be for the best interest of the child. The jury found that such a material change of conditions had occurred that the best interest of the child required a change of custody to the mother. The judgment of the trial court based thereon was affirmed by the Court of Civil Appeals. 391 S.W.2d 189. We granted Petitioner's application for writ of error upon points of error asserting, in effect, that there was no evidence to support the jury finding of a change of conditions, and that the Court of Civil Appeals erred in not giving full faith and credit to the Indiana decree. We are of the view that a material change of conditions was not shown and therefore reverse the judgments below.
The courts of Texas will give full faith and credit to a child custody decree of a sister state and will not order a change of custody in the absence of proof of a subsequent material change of conditions. Short v. Short, 163 Tex. 287, 354 S.W.2d 933; Wicks v. Cox, 146 Tex. 489, 208 S.W.2d 876, 4 A.L.R.2d 1; Goldsmith v. Salkey, 131 Tex. 139, 112 S.W.2d 165, 116 A.L.R. 1293. However, proof of a material change of conditions since the decree of the sister state will support a change of custody if such would be for the best interest of the child. Cf. Short v. Short, supra; People of the State of New York ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133 (1948); see Stumberg, Principles of Conflicts of Law, 3d ed., pp. 319-326 (1963). A change of conditions being shown, the question becomes whether or not a change of custody is warranted, and this is a question within the discretion of the trial court whose action will not be disturbed in the absence of an abuse of discretion. Cf. Mumma v. Aguirre, 364 S.W.2d 220 (Tex.Sup.1963); Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787. At the time it is entered, a custody judgment is res judicata of the question of the best interest of the child. Taylor v. Meek, supra. The fact that the technical legal domicile of the child may be in another state does not preclude child custody jurisdiction in our courts. Wicks v. Cox, supra; Campbell v. Stover, 101 Tex. 82, 104 S.W. 1047.
The initial question, then, is whether a material change of conditions was shown to have occurred between December 2, 1963, the date of the Indiana decree, and the instant proceedings which were filed on January 10, 1964. The controlling considerations are those changes of conditions affecting the welfare of the child. The desires, acts and claims of the respective parents are secondary considerations and material only as they bear upon the question of the best interest of the child. See Goldsmith v. Salkey, supra; Shippen v. Bailey, 303 Ky. 10, 196...
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Perry v. Ponder
...is entitled to full faith and credit with respect to its determination of facts existing at the time it was rendered. Bukovich v. Bukovich, 399 S.W.2d 528, 529 (Tex.1966); Sampson, Jurisdiction in Divorce and Conservatorship Suits, 8 Texas Tech.L.Rev. 159, 176 (1976). It is subject to modif......
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People ex rel. Bukovich v. Bukovich
...by the Texas Court of Civil Appeals, Bukovich v. Bukovich, 391 S.W.2d 189, but reversed in January, 1966, by the Supreme Court of Texas, 399 S.W.2d 528. During the pendency of the Texas appeals the defendant moved back to Illinois with her son in April, 1964, and has since been regularly em......
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Gunther v. Gunther, 594
...to the order of February 24, 1970 awarding custody of the involved children to appellant, Harry Gunther. See Bukovich v. Bukovich, 399 S.W.2d 528, 529 (Tex.Sup.1966); Wicks v. Cox, supra; Knowles v. Grimes, 437 S.W.2d 816 (Tex.Sup.1969). Material changes of conditions and the best interests......
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...the exceptional case, the trial court in its discretion can then make a new and independent determination of child custody rights. Bukovich v. Bukovich, supra. Such determination once made, will not be disturbed on appeal in the absence of abuse of discretion. Taylor v. Meek, 154 Tex. 305, ......