Cox v. Wicks, 2733.
| Decision Date | 26 June 1947 |
| Docket Number | No. 2733.,2733. |
| Parties | COX et al. v. WICKS et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Dallas County; Dick Dixon, Judge.
Petition by Miss Edith Cox for a writ of habeas corpus on ground that John Lambert Stephens, Jr., a minor child of the state of Virginia, who was in petitioner's lawful care was illegally restrained of his liberty by Mrs. Loy Stephens Wicks and husband, wherein A. H. Mason, the qualified and acting probation officer of the Juvenile and Domestic Relations Court of the City of Lynchburg, Virginia, filed an intervening petition. From an adverse judgment, petitioner and intervenor appeal.
Judgment reversed and rendered.
G. Q. Youngblood, Joe H. Jones and Bern Wilson, all of Dallas, for appellants.
Ben D. Atwell and Irwin & Irwin, all of Dallas, for appellees.
This is a child custody case. Miss Edith Cox of Lynchburg, Virginia filed a petition in the district court of Dallas county in which she alleged substantially that John Lambert Stephens, Jr., a minor child of the state of Virginia, who was in her lawful care, is now illegally restrained of his liberty by respondents of Dallas County, Texas. She prayed for writ of habeas corpus and asked that the child, upon hearing, be discharged from such restraint and restored to the custody of the petitioner, and for such decrees to which she was entitled.
A. H. Mason, the qualified and acting probation officer of the Juvenile and Domestic Relations Court of the City of Lynchburg, Virginia, in his official capacity, representing the court, filed plea of intervention in which he, among other things, averred substantially that said minor was abandoned at the age of approximately one year and that said child had no proper parental care, as provided in section 1906, Title 17, Michie's Code of Virginia, and that the child became a ward of the Juvenile Court of the City of Lynchburg, Virginia, and he prayed in effect that the doctrine of comity between the State of Virginia and Texas be recognized and that the person of John Lambert Stephens, Jr., be awarded to the care of the Juvenile Court of said city of Lynchburg, Virginia, and that he be authorized to take charge of said minor to await the orders of the Juvenile Court of said city.
Mrs. Loy Wicks and her husband, respondents, answered to the effect that Mrs. Wicks was the mother of the child, and that the best interests of the child would be served if its care, custody and control were awarded to the respondents.
The trial court (non-jury) in his judgment found that the material allegations of the plaintiff's and intervener's petitions were false, and further found that Mrs. Loy Wicks was the proper person to have the care, custody and control of said minor, and made his award accordingly. The plaintiff and intervener have appealed.
Appellants' first point is substantially to the effect that since the evidence is undisputed that Mrs. Loy Wicks, the mother of the child, abandoned the same about the 8th of February, 1941, at which time said child was approximately one year old, said abandonment having taken place in the City of Lynchburg, Virginia, where the mother and father of the child resided, and since the duly qualified and acting juvenile authorities of said city took the care and custody of said child and exercised jurisdiction over said child for a period of more than five years, and since the mother of the child, without the consent or authority of said juvenile authorities, abducted the child and removed it to Dallas County, Texas, without the authority of the juvenile authorities of the City of Lynchburg, Virginia, that the trial court committed reversible error in assuming jurisdiction over the person of said child to the exclusion of the juvenile authorities of said city. We think this contention must be sustained.
This record is without dispute to the effect that since 1938, the exact date not being shown, John Lambert Stephens and his wife were living in the City of Lynchburg in the State of Virginia, and that four children had been born to them, the youngest being about one year of age in February, 1941, and the oldest being about nine years old. John Lambert Stephens failed to provide for his wife and children and his wife was forced to work a part of the time during their marriage relationship and held various jobs as a day laborer in the City of Lynchburg; that some time in the latter part of 1940, the exact date not being shown, Mrs. Stephens separated from her husband and she obtained an apartment in the City of Lynchburg and took the children to live with her. Her husband went to his mother's home in the City of Lynchburg. While Mrs. Stephens and her children were living alone, her mother-in-law and her husband came to...
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