Ex parte Rhodes, A-8552
| Decision Date | 06 December 1961 |
| Docket Number | No. A-8552,A-8552 |
| Citation | 352 S.W.2d 249,163 Tex. 31 |
| Parties | Ex parte Betty RHODES. |
| Court | Texas Supreme Court |
Dibrell, Gardner & Dotson, San Antonio, Fred V. Klingeman, Karnes City, for relator.
Ronald Smallwood, Karnes City, for respondent.
In this habeas corpus proceeding, the question is whether a district judge has the power, in a divorce decree, to provide that the infant child of the marriage shall remain within the county and that the residence of the child shall not be moved from the county without an order of the court. Because of the violation of such an order, Betty Rhodes was adjudged to be in contempt of court. She seeks relief from this Court.
The pertinent facts are these: Betty Rhodes was formerly married to Edgar Sherrill, Jr. They and their parents lived in Karnes County, Texas. In 1954, Betty sued Edgar Sherrill for divorce and sought custody of their only child, a daughter then two years of age. The suit was uncontested. The divorce decree awarded exclusive custody of the child to Betty, the mother. While the judgment had no specific provisions as to days and hours of visitation, Edgar Sherrill was given the right to visit the child at all reasonable times and places. The judgment then stated:
'It further appearing to the court that the best interest of said child will be served if she resides in Karnes County, Texas, where plaintiff and defendant reside and where the four grand-parents of said child reside; it is ordered, adjudged, and decreed by the court that said child shall reside within Karnes County, Texas, and that plaintiff not move said child's residence from within Karnes County, Texas, without first making written application to this court, and after hearing by the court of all parties concerned, and an order being made by the court allowing plaintiff to move said child's residence from within Karnes County, Texas.'
There was no appeal from the judgment, and it became final. It has not been modified.
In 1960, Betty married Barry Rhodes. They moved from Karnes County to the City of Bryan in Brazos County, Texas, in February, 1961. The child remained in Karnes County with her maternal grand-parents. In May, 1961, however, Betty's father, at her request, brought the child from Karnes County to her in Brazos County.
The father of the child, Edgar Sherrill, Jr., was dissatisfied with his reception at the home of Betty and Barry Rhodes when he went to visit his daughter. He considered that his rights of visitation had been unduly curtailed. He thereupon brought suit in Karnes County seeking: (1) the return of the child to Karnes County; (2) punishment, by contempt proceedings, of Betty and her father for violating the terms of the custody provisions of the divorce decree; and (3) a change in the terms of the judgment as to custody of the child. He sought particularly to have his days and hours of visitation made definite.
All parties thereafter appeared in the district court of Karnes County. Betty and her second husband, Barry Rhodes, filed a plea of privilege to be sued in the county of their residence, Brazos County. As to the visitation matters, the court sustained the plea of privilege; and that portion of the case was ordered to be transferred to Brazos County. That feature of the case is not now before us.
The district court of Karnes County, however, did adjudge Betty Rhodes to be in contempt for willfully and knowingly violating the order of the court, and ordered her to jail for 12 hours and until she should purge herself of the contempt. She here contends that the district court was without power to restrict the residence of the child to Karnes County and was without power to decree that such residence should not be removed without an order of the court.
When counsel for Betty Rhodes made application for leave to file the application for writ of habeas corpus in this Court, several members of the Court doubted the power of the district court to impose such restrictions in the divorce decree. It was forcefully argued that such provisions, in effect, prohibit the wife from remarrying and moving, or from seeking gainful employment in another county without the consent of the district judge, and that this deprived her of her liberty without due process of law. While the decree does not prevent Betty Rhodes from remarrying or moving whenever or wherever she pleases, it does require her to obtain the consent of the court to move if she desires to take the child with her. She has not been denied consent to move and take the child with her. She did not ask the court's permission to change the child's residence to Brazos County. Her contention is that the court was without power to impose such a condition in the decree.
We find that the question has been heretofore answered in Texas. For this Court to order the release of Betty Rhodes, the order of the district court must be absolutely void. It is not enough that the order of the court be erroneous. The order must have been beyond the power of the court to enter. Ex parte La Rocca, 154 Tex. 618, 282 S.W.2d 700 (1955); Ex parte Tyler, 152 Tex. 602, 261 S.W.2d 833 (1953).
The question of the power of the district court to restrict the residence of a minor child to the state and to the jurisdiction of the court has been resolved in the affirmative on several occasions. One of the earliest decisions was Ex parte Ellerd by the Texas Court of Criminal Appeals, 71 Tex.Cr.R. 285, 158 S.W. 1145. That court upheld contempt proceedings which, among other things, enforced a divorce decree which directed that the minor child be maintained in Plainview, Hale County, Texas.
In 1949, the Court of Civil Appeals at Eastland upheld a custody decree which directed that the child be not removed from Eastland County, Texas. Lasater v. Bagley, 217 S.W.2d 687 (). Thereafter, in 1951, in ...
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Bates v. Tesar
...that the domicile restriction violates her right to travel. We begin with the Texas Supreme Court's decision in Ex parte Rhodes, 163 Tex. 31, 352 S.W.2d 249 (Tex.1961). At issue was a consent decree which awarded exclusive custody to the mother while providing visitation to the father "at a......
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...cases have espoused a stricter view, limited to determining the trial court's jurisdiction. See, e.g., George, 364 S.W.2d 189; Rhodes, 352 S.W.2d 249, 250-51; Lipscomb, 239 S.W. 1101, 1103-04. Some cases restrict their consideration of the lower court's jurisdiction to subject matter and pe......
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...error went to the manner in which the court exercised its power under article 3827a, and not to the power itself. Ex parte Rhodes, 163 Tex. 31, 352 S.W.2d 249, 250 (1961). The order was not void, but voidable, and Johnson had a legal duty to comply with it until ordered otherwise. Id. Johns......
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