Geesbreght v. Geesbreght
| Decision Date | 13 July 1978 |
| Docket Number | No. 17985,17985 |
| Citation | 570 S.W.2d 427 |
| Parties | Mary Lee GEESBREGHT, Appellant, v. John GEESBREGHT, Appellee. |
| Court | Texas Court of Appeals |
In this divorce case we affirm those portions of the trial judgment which granted a divorce and awarded custody of the parties' minor children to the father; and at the same time reverse and remand for another trial that portion of the trial court's judgment decreeing division of the property involved.
The trial court's judgment was rendered upon both the petition for divorce filed by John Geesbreght against his wife Mary Lee and upon the cross-petition for divorce by Mary Lee. Each will be hereinafter referred to by their first names. Declaration for relief by each party was upon the generally termed "no fault" ground of Tex. Family Code Ann. § 3.01, (Supp.1978) "Insupportability" of Chapter 3, "Dissolution of Marriage".
Mary Lee desired that that part of the judgment which decrees the parties' divorce be affirmed on appeal. Nevertheless, she has a point of error founded upon the trial court's decision that it had jurisdiction of the case. Mary Lee left her husband's domicile in Fort Worth, Texas, on January 20, 1976; on January 22, 1976, she filed a suit against him in the Circuit Court of Cook County, Illinois for separate maintenance and for custody of the parties' children. A suit for separate maintenance is not valid by Texas law. On February 10, 1976 John filed his suit for divorce in the Tarrant County court from which there is this appeal. Both suits pended until August 17, 1976 when the Illinois court dismissed that of Mary Lee for want of prosecution. There was reinstatement of such case on September 14, 1976 upon the petition of Mary Lee. The Tarrant County suit continued to pend. Before the Illinois case was reinstated and on August 30, 1976 Mary Lee appeared before the Tarrant County court at a hearing in connection with her plea to be temporarily appointed managing conservator of her children. The circumstance presents a situation where Mary Lee has waived her right to complain of jurisdiction. The jurisdiction of the Tarrant County court was secure as of the time of dismissal of Mary Lee's suit in Illinois even though a question might have persisted (had she filed a plea to the jurisdiction and none was filed either in compliance or non-compliance with the "due order of pleading" rules) had the dismissal not occurred and/or had there been no waiver during the period during which the Illinois case was a dismissed case. At no time was the Tarrant County court ever requested to take judicial notice of Illinois law, and such law was not proved.
What we have said in the preceding paragraph does not necessarily cover Mary Lee's contention that the Tarrant County court did not have the requisite jurisdiction which authorized it to make an enforceable decree concerning custody of the children. By the circumstances we consider the question moot. Mary Lee appealed the judgment of the Tarrant County trial court to this appellate court while withholding custody of her children from John, contrary to the provisions of the trial court judgment. John presented such facts to this court and moved for dismissal of Mary Lee's appeal. The proper order of an appellate court is to dismiss the appeal where an appellant is in obvious contempt of the judgment of the trial court from which the appeal has been taken. See Strange v. Strange, 464 S.W.2d 216 (Tex.Civ.App. Fort Worth 1970). See also the opinion of the supreme court answering certified questions upon other aspects of the same case at 464 S.W.2d 364 (Tex.1971). The day before John's motion to dismiss the appeal was scheduled to be heard Mary Lee caused or permitted the children to be delivered to John in Tarrant County, Texas, making proof to this court that such had been done. The motion to dismiss the appeal was withdrawn. We have continued to honor Mary Lee's appeal.
Apart from the foregoing we nevertheless have considered the question of jurisdiction of the trial court, as of the time it rendered judgment and as of the time its jurisdiction passed (for necessary purposes) to this appellate court. We hold that the court below had jurisdiction of the children and authority to make the adjudication upon their custody.
Though the adjudication is as upon a case In rem in that is upon the status of the children (so that there is the legal requisite that the trial court have jurisdiction not only of the husband and wife but also of their children for purposes of an enforceable custody decree) we hold that by the circumstances the domicile of the children was in Texas. Of course the trial court had jurisdiction for purposes of divorce.
The facts were not in dispute. Mary Lee took the children from Fort Worth on January 20, 1976 and removed them to Illinois.
John did not know, if it was the fact, that Mary Lee did not intend to return to Texas or did not intend to return the children to Texas. He did not consent to any change of the domicile of the children. He did not refuse to continue support. John provided support for the family at all times. Mary Lee did not work outside the home. Regardless of her unhappiness in her marital relationship there existed no danger or threat to her security or to that of the children which occasioned a change of domicile. Mary Lee did not return the children to Texas until after jurisdiction existed in this court by reason of her appeal. The children were not in Texas at time of the divorce and custody decree nor at time Mary Lee's appeal was perfected.
Of course we are considering "domicile by operation of law", i. e., analagous to what was formerly that of a wife arising upon her marriage. Of little value are the cases prior to the adoption of Texas' Constitutional Equal Rights Amendment: Tex. Const. art. 1, § 3a, . The Amendment was adopted November 7, 1972. See Vol. 5, No. 2, Symposium, 1974, Tex.Tech.L.Rev., Sampson, "The Texas Equal Rights Amendment and the Family Code: Litigation Ahead". To be kept in mind, however, are the old cases bearing upon the question. See 4 A.L.R.2d p. 7 Annotation: "Jurisdiction to award custody of child having legal domicile in another state", and 9 A.L.R.2d p. 434, "Jurisdiction of court to award custody of child domiciled in state but physically outside it."
We hold that Texas has effectively legislated, in the Texas Family Code, by its § 12.04, "Rights, Privileges, Duties, and Powers of Parent" where there is provision that, except as provided by judicial order or by an affidavit of relinquishment of parental rights executed under § 15.03, the parent of a child has, among other rights, privileges, duties, and powers, "the right to have physical possession of a child and to establish its legal domicile". (The provisions of § 15.03, "Affidavit of Relinquishment of Parental Rights" are inapplicable to this case.) Prior to the separation of Mary Lee from John they had jointly established Tarrant County, Texas, as their legal domicile and also that of their children.
Tex. Family Code Ann. § 3.26 (Supp.1978) "Acquiring Jurisdiction over Nonresident Respondent" provides that when the petitioner in a suit for divorce is a resident or a domiciliary of this state at the time the suit is filed personal jurisdiction by the court shall exist over the respondent, although the respondent is not a resident or domiciliary of Texas, if this is the last state in which marital cohabitation between petitioner and respondent occurred and the suit is commenced within two years after the date on which cohabitation ended, and that a court acquiring jurisdiction under the section also acquires jurisdiction in a suit affecting the parent-child relation if § 11.051 of the Code is applicable.
Tex. Family Code Ann. § 11.051 (Supp.1978) "Acquiring Jurisdiction Over Nonresident", provides that in a suit affecting the parent-child relationship, the court may exercise personal jurisdiction over a person on whom service of citation is required, though a non-resident or domiciliary of this state, if the person on whom service is required has resided with the child in this state, and even where the section might otherwise be deemed inapplicable, if there is any basis consistent with the constitutions of this state or the United States for the exercise of the personal jurisdiction. Note the Law Review Commentaries listed under this section. § 11.051 is applicable in the situation posed by the case at bar.
On the "long-arm jurisdiction" of Tex. Family Code Ann. § 3.26 (Supp.1978) it has been held that a Texas court properly exercised its jurisdiction over a non-resident defendant where suit was filed within two years after the termination of a 21/2-month period of cohabitation of the parties in Texas. Scott v. Scott, 554 S.W.2d 274 (). The case involved custody of a child as well as divorce.
The matter of custody of the parties' minor children was tried to a jury before the Honorable Gordon Gray, District Judge. Without objection two special issues were submitted along with a definition of the term Managing Conservator which in general "tracked" the language of Tex. Family Code Ann. § 14.02 (Supp.1978) "Rights, Privileges, Duties, and Powers of Possessory Conservator", save that there was not included in the definition the provision that the managing conservator has "the right to have physical possession of the child and to establish its legal domicile". There was not an objection to the...
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