Cusack v. Cusack, 10319.

• Citation: 107 S.W.2d 1021
• Decision Date: 27 May 1937
• Docket Number: No. 10319.,10319.
• Parties: CUSACK v. CUSACK et al.
• Court: Court of Appeals of Texas

107 S.W.2d 1021

CUSACK v. CUSACK et al.

No. 10319.

Court of Civil Appeals of Texas. Galveston.

May 27, 1937.

Dissenting Opinion June 24, 1937.

Rehearing Denied July 1, 1937.

Dissenting Opinion July 7, 1937.

Appeal from District Court, De Witt County; J. P. Pool, Judge.

Application by Charles E. Cusack against Ann Hamilton Cusack and others for writ of habeas corpus for custody of petitioner's minor children. From a judgment dismissing the petition, petitioner appeals.

Reversed and remanded.

J. W. Ragsdale, of Victoria, and Carter & Lewis, of San Antonio, for appellant.

H. W. Wallace and Crain & Hartman, all of Cuero, and Greenwood, Moody & Robertson, of Austin, for appellees Thornton Hamilton et al.

Ann Hamilton Cusack, pro se.

W. NOBLE CARL, Special Associate Justice.

Appellant, Charles Cusack, filed in the district court of De Witt county, Tex., his petition for a writ of habeas corpus against Ann Cusack and Thornton Hamilton and wife for custody of his minor children.

Appellant alleged, in substance: That Ann Cusack sued him in the superior court of Los Angeles, Cal., for divorce and custody of the children of their marriage; that on October 19, 1934, the California court denied the divorce and divided the custody of the children between Mr. and Mrs. Cusack; that appellant filed an application in the California court, alleging that Ann Cusack had neglected the children since the order of October 19, 1934, and praying that she be enjoined from removing them from the court's jurisdiction and that proper order be made for their custody; that in answer to said application Ann Cusack appeared and denied under oath that she intended to remove the children permanently from the court's jurisdiction and prayed for permission to take the children to Texas for the Christmas holidays; that the California court set the hearing on the merits for January, 1935, and enjoined both Ann Cusack and appellant from taking the children out of Los Angeles county; that on December 18, 1934, the date of the injunction, Ann Cusack left California and brought the children to Texas; that on December 19, 1934, the California court set aside all orders dividing the custody of the children and awarded their custody to Mr. Cusack, and on January 17, 1935, entered final judgment awarding custody of the children to Mr. Cusack; that the decrees of the California court were valid, and he therefore invoked the full faith and credit clause of the Constitution of the United States (article 4, § 1).

Appellant further alleged that the domicile of himself and his children was in California, and that the children were brought to Texas illegally and against his consent, and prayed that possession of the children be restored to him. By supplemental petition he alleged his fitness and appellee's unfitness to have custody of his children, and prayed that he be awarded their custody.

Mr. and Mrs. Hamilton, who had previously filed suit in De Witt county, Tex., for custody of said children, pleaded their prior suit in abatement, filed special exceptions, and alleged their fitness and Mr. Cusack's unfitness to have said children. Mrs. Cusack's pleadings were in substance the same as those of Mr. and Mrs. Hamilton.

On February 28, 1935, this cause came on for hearing, and the trial court invited argument as to the jurisdiction of the court, and at the conclusion of the argument dismissed the petition. Appellant took exceptions to the court's ruling and offered evidence to prove the matters alleged in his petition, which the trial court refused to consider.

The trial court erred in dismissing the petition and in excluding the proof offered.

The evidence offered by appellant as to the domicile of the children was admissible. If the children's domicile at the time of the institution of this suit was in California, the district court of De Witt county, Tex., should not hear evidence and determine to whom the custody of the children should be awarded, but should order them delivered to their father. Lanning v. Gregory, 100 Tex. 310, 99 S.W. 542, 10 L.R.A.(N.S.) 690, 123 Am.St.Rep. 809.

The certified copies of the proceedings of the California court were admissible. If the judgment of that court was conclusive of the rights of the parties in California at the date of its entry, it must be accorded the same effect in Texas, under article 4, § 1, of the Constitution of the United States. Wilson v. Elliott, 96 Tex. 472, 73 S.W. 946, 75 S.W. 368, 97 Am.St.Rep. 928.

If the trial court should find that the children are domiciled in Texas, then it shall proceed to hear the evidence and pass only on the rights of the parties to the custody of the children by reason of the change in conditions affecting the minors' welfare since the last valid judgment of the California court.

This court cannot render judgment for appellant on evidence excluded by the trial court, though it might have been justified in so doing if the evidence excluded had been admitted. Abbott Oil Co. v. San Antonio Brewing Association, 104 Tex. 574, 141 S.W. 517.

Reversed and remanded, Chief Justice PLEASANTS dissenting.

GRAVES, J., did not sit in this case.

PLEASANTS, Chief Justice (dissenting).

When the opinion of the majority of this court was delivered and its judgment entered, I announced my dissent from the conclusions expressed in the majority opinion. (As shown by the record, Justice GRAVES recused himself because of disqualification. Justice CODY and the writer being unable to agree upon a decision of the material questions presented by the record, and these facts being certified to the Governor, Mr. Carl, a prominent lawyer of Galveston, was duly appointed special justice to take the place of Justice GRAVES.)

For a clearer understanding of the rulings and judgment of the trial court, the statement contained in appellant's brief is supplemented by the following undisputed facts which are shown by the record:

The pleadings of appellant, upon which the judgment of the trial court was rendered, after alleging his marriage with Ann Hamilton in 1924, which relationship was existing at the time of the filing of this suit, further alleges the names and ages of the three children, the right to whose possession forms the subject matter of this suit; and that, the domicile of plaintiff and his said wife being in the state of California in February, 1934, the said Ann Hamilton Cusack filed suit in the superior court of Los Angeles county, Cal., against this plaintiff, Charles E. Cusack, for divorce and for the custody of their minor children; that appellant, Charles E. Cusack, answered said suit and by cross-complaint prayed for divorce from Ann Hamilton Cusack and for judgment awarding the care, custody, and control of their minor children to him; that said suit for divorce and custody of minor children was tried and judgment was entered therein on October 19, 1934, denying the prayers of the parties for divorce and awarding the care, custody, and control of the children to Ann Hamilton Cusack "until the further order of the Court," subject to the right of Charles E. Cusack to have said children with him on weekends and during the summer vacation; that on December 12, 1934, Charles E. Cusack filed an affidavit and application in said divorce suit praying "that said Court modify said order and judgment relating to the custody of said children and issue a restraining order restraining his wife, Ann Hamilton Cusack, from taking said children out of the jurisdiction of the California Court"; that said Charles E. Cusack thereafter filed a supplemental affidavit and application alleging that Ann Hamilton Cusack was not a fit and proper person to have care and custody of said minor children and praying that the care, custody, and control of said minor children be awarded to him; that an order to show cause was issued on the affidavit and application and served on Ann Hamilton Cusack; that Ann Hamilton Cusack appeared in said court and answered the affidavit and application so filed by Charles E. Cusack, and in her answer prayed that the court enter an order permitting her to remove said children to Cuero, Tex., for the Christmas and New Year holidays; that on December 18, 1934, the affidavit and application so filed by Charles E. Cusack and the answer of Ann Hamilton Cusack thereto came on for hearing; that on the hearing the court made an order denying the prayer of Ann Hamilton Cusack for an order allowing her to remove the children from the state of California during the Christmas and New Year holidays, and providing that said children were to remain in her custody pending a further hearing to be had on said application on January 15, 1935, except that Charles E. Cusack was to have the children with him during certain days in December, 1934, and further providing that the parties were enjoined from removing the children from Los Angeles county, Cal.; that on the night of December 18, 1934, Ann Hamilton Cusack removed said children from Los Angeles county, Cal., to Cuero, Tex., in violation of the restraining order entered by the court on that date; that on December 19, 1934, the superior court of Los Angeles county, Cal., made an order in said divorce suit setting aside the previous orders entered in that case concerning the custody of said children, and giving Charles E. Cusack the exclusive custody and control of them; that on January 15, 1935, the superior court of Los Angeles county, Cal., proceeded to hear and determine in said divorce suit the applications of the parties concerning the custody of said children and entered an order giving complete custody, care, and control of said children to Charles E. Cusack; that the superior court of Los Angeles county, Cal., had full jurisdiction of said children and the matters in controversy as to their care, custody, and control; that "said orders, judgments and judicial proceedings are entitled to full faith and credit under the...