Conley v. St. Jacques, 4921.
| Decision Date | 01 November 1937 |
| Docket Number | No. 4921.,4921. |
| Citation | 110 S.W.2d 1238 |
| Parties | CONLEY v. ST. JACQUES et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Gray County; W. R. Ewing, Judge.
Habeas corpus proceeding by Chloe Rita Conley against F. E. St. Jacques and others. From an adverse judgment, Chloe Rita Conley appeals.
Affirmed.
Chas. Doyle, of Kansas City, Mo., and Clifford Braly, of Pampa, for appellant.
Roy Sansig, of Higgins, for appellees.
On the 5th of April, 1937, in the district court of Lipscomb county, in a suit filed by Frank E. St. Jacques, Jr., against his wife, Chloe Rita St. Jacques, a divorce was granted to her upon her cross-action, and the custody of their daughter, 2½ years of age, was decreed to its father, Frank E. St. Jacques, Jr., for the first six months of each year, and to the mother for the remaining six months, until the child should arrive at school age, after which the custody should remain in the father for nine months, or during the school period. It was further decreed that the child should not be removed from the State of Texas during her minority except for temporary visits or unless necessity required such removal. Within a short time after the decree of divorce was entered, the mother married Albert Conley, a resident of the State of Arkansas, and on the 9th of July, 1937, she filed in the district court of Gray county her application for a writ of habeas corpus against F. E. St. Jacques, Sr., and his wife, who were father and mother of Frank E. St. Jacques, Jr. The record shows that after the court had decreed to him the custody of the child, Frank E. St. Jacques, Jr., placed it in the home of the respondents, Mr. and Mrs. F. E. St. Jacques, and procured for himself employment on the high seas, where he has since remained. There is no contention that the home of F. E. St. Jacques and his wife is not a proper place for the child to live, nor that they are not, in all respects, suitable and proper persons to have the care and custody of the child. On the other hand, the record shows they are highly suitable and in every respect able and capable of furnishing a proper home and of assuming the responsibilities of its care, rearing, and education.
Appellant alleged that on the 1st of July, 1937, when she was entitled to the custody of the child under the divorce decree, she was prevented by force from obtaining such custody, and she prayed for an order, directing F. E. St. Jacques and his wife to produce the child in court and that she have such relief as she may be entitled to under the law and facts.
In their answer to the writ, F. E. St. Jacques and his wife alleged that they had not delivered the child to appellant because it would not be for the best interest of the child. They alleged the remarriage of appellant, her residence in the State of Arkansas, and that if she were given the custody of the child she would immediately remove it to the State of Arkansas where she was living with her second husband, and would permanently retain its custody and possession in that state. Further allegations set up unfitness of appellant to have the custody of her infant daughter, and upon a hearing held on the 9th of July, 1937, the court modified that portion of its divorce decree entered April 5, 1937, pertaining to the custody of the child, so as to provide that during the periods of six months each year until the child became of school age, and three months each year thereafter in which appellant was entitled to the custody of the child under the divorce decree, such custody should be placed in appellant's parents, Mr. and Mrs. George Gilkerson, and then only in the event and for such portion of the time as appellant was visiting in Lipscomb county, their custody being confined to the duration of such visits. It was further decreed that F. E. St. Jacques and his wife and Frank E. St. Jacques, Jr., should jointly have the custody and possession of the child at all other times.
Appellant duly excepted to the modification of the original judgment and has appealed the case to this court. The case is submitted upon a number of assignments of error, the first of which complains of the action of the trial court in overruling her objection to certain testimony concerning her conduct prior to the date the divorce decree was entered in Lipscomb county. The general rule is that the character and status of the mother or father as a proper person to have the custody of minor children is fixed by the divorce decree and original award of such custody. Such judgment is res judicata of all matters pertaining to the character of the person awarded such custody and questions pertaining to his suitability as such custodian. Proceedings subsequent to the original award having for their purpose its modification and the changing of the custody of such children are, as a rule, confined to the conduct of, and other matters pertaining to such custodian as occur after the final judgment of divorce and order awarding the custody of children has been entered. However, such decree does not bar subsequent proceedings for its modification and, while testimony of the conduct of the custodian prior to the original decree is not admissible as original evidence, yet it may be received in corroboration of evidence of subsequent conduct. At the time the testimony was admitted in the trial of this case, the court could not have known whether other evidence would be introduced tending to show subsequent immoral or unapproved conduct on the part of appellant or not, and inasmuch as the trial was before the court without a jury it must be presumed, in the absence of a showing to the contrary, that the evidence complained of was considered by the court, if at all, only for the purposes for which the law sanctions its admission. There is in the record no showing that improper consideration was given such testimony by the court or that he considered it at all. Appellant's first assignment of error is overruled. Vickers v. Faubion (Tex.Civ.App.) 224 S.W. 803.
The second assignment and proposition are based upon appellant's objection to the introduction in evidence of two letters which she had written to her then...
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...and pleadings are of little importance in determining issues concerning the custody of children. Conley v. St. Jacques, 110 S.W.2d 1238, 1242 (Tex.Civ.App.--Amarillo 1937, writ dism'd); Williams v. Guynes, 97 S.W.2d 988 (Tex.Civ.App.--El Paso 1936, no writ). It is beside the point that in t......
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