Curtis v. Gibbs, No. B--4518

• Court: Supreme Court of Texas
• Writing for the Court: GREENHILL; Judge Guy Jones; After a hearing
• Citation: 511 S.W.2d 263
• Parties: Daniel CURTIS, Relator, v. Honorable Dan GIBBS, Judge, et al., Respondents.
• Decision Date: 22 May 1974
• Docket Number: No. B--4518

Page 263

511 S.W.2d 263 Daniel CURTIS, Relator,
v.
Honorable Dan GIBBS, Judge, et al., Respondents. No. B--4518. Supreme Court of Texas. May 22, 1974.

Hubbard, Patton, Peek, Haltom & Roberts, James N. Haltom, Texarkana, for relator.

Smith, Glaspy, Jones & Moss, Bill Glaspy, Mesquite, for respondents.

GREENHILL, Chief Justice.

In this original mandamus proceeding, we are called upon to settle a jurisdictional conflict between the 202nd District Court of Bowie County and the Third Domestic Relations Court of Dallas County. The conflict arises from a child custody dispute between the parents of Shawn Danelle Curtis and Shanna Michelle Curtis, ages 8 and 7, respectively. For simplification,

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the Relator Daniel Curtis, the children's father, will be referred to as 'the father,' and the respondent, Jerri curtis Spencer, as 'the mother.' The 202nd District Court of Bowie County will be called 'the Bowie court,' and the Third Domestic Relations Court of Dallas County will be called 'the Dallas court.' The judge of the Dallas court, the Honorable Dan Gibbs, is the principal respondent herein.

The background of the case will be set out later herein. The immediate reasons for the mandamus proceedings are these:

The father and mother were divorced by a judgment of the Bowie court in 1971, and the mother was awarded custody of the children; but she was not to remove the children from Bowie and an adjacent county without permission. The parents and the children all lived in Bowie County at that time.

On January 18, 1974, the father filed a petition for change of custody in the Bowie court. Subsequently, on February 15, 1974, the mother filed a petition in the Dallas court to remove restrictions on her custody of the children and to increase the father's child support payments.

Judge Guy Jones, Judge of the Bowie court, issued a writ of attachment ordering that the children, who were in Dallas with their mother, be returned to Bowie County. Judge Dan Gibbs of the Dallas court issued an order suspending the writ of attachment and forbidding the sheriff of Dallas County from executing it. The father thereupon filed his original petition in this court seeking writs of mandamus and prohibition directing Judge Gibbs to abate the mother's suit in Dallas County and to vacate orders interfering with the Bowie County proceeding. After the filing of the petition in this court, the father has presented his plea in abatement in the Dallas court, and Judge Gibbs has overruled it.

We conclude that the Bowie court first acquired jurisdiction of the controversy between the parties and therefore retained dominant jurisdiction to the exclusion of other courts. Judge Gibbs had no right to interfere with the actions or orders of Judge Jones, or to take any other action with respect to the suit filed in Dallas except to sustain the plea in abatement and to dismiss the suit.

In order to discuss adequately the contentions raised by the parties in this court, it will be necessary to set out the history of this litigation in some detail. As noted, the father and the mother were divorced in Bowie County in 1971. The decree gave the mother custody of the children, subject to the restriction that she must not remove them from Bowie County Texas, or Miller County, Arkansas, for a period longer than ten days without permission. In 1973, the mother filed a petition in the Bowie court seeking to expunge this restriction, but the petition was denied. No appeal was taken from that order.

In December of 1973, the mother, now remarried, determined to move to Dallas with her present husband. For reasons concerning which there is conflicting testimony, she left the children with the father in Bowie County. The father apparently believed that the mother intended to leave the children with him indefinitely.

On January 18, 1974, the father filed in Bowie County a suit to change custody, i.e., to obtain custody of the children. He did not immediately procure a citation in that suit; but on February 4, his counsel wrote to the mother requesting that she sign a waiver of citation.

On February 12, 1974, the mother took the children from the home of the father in Bowie County upon the representation that she was taking them for an overnight visit. In fact, she took them with her to Dallas and put them in school there. She has not since returned the children to the father, nor does she intend to do so.

This act precipitated a series of legal moves which has culminated in the present mandamus action. On February 13, 1974,

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the father procured a citation to the mother in his pending Bowie County suit. The following day, February 14, 1974, Judge Jones of the Bowie court issued his writ of attachment commanding the return of the children to Bowie County.

On February 15, 1974, the mother filed a new suit in Dallas County, asking for unrestricted custody and for increased child support. Judge Gibbs of the Dallas court issued a temporary restraining order forbidding the father from removing the children from Dallas County, and setting a hearing on a temporary injunction for February 22.

On February 22, the father appeared in the Dallas court and filed a Motion to Transfer, a Motion to Change Venue, and a Motion to Dismiss. The last of these motions alleged pendency of the prior action in Bowie County, but it was not sworn to as required by Rule 93, Texas Rules of Civil Procedure.

After a hearing, Judge Gibbs issued a temporary injunction forbidding removal of the children from Dallas County and 'suspending' the Bowie County writ of attachment 'until this court can determine the status of this matter in relation to the case pending...