"Appellant, Ruth E. Goldsmith, and appellee, J. Sydney Salkey, were married in St. Louis, Missouri, on June 18, 1924, and established the family domicile there. On February 26, 1926, a daughter, Joan, was born to the Salkeys, and, now eleven years old, still lives to be the subject of this litigation.
"On July 15, 1930, in a proper Circuit Court of the City of St. Louis, Missouri, where the parties still resided, appellant obtained a decree of divorce from appellee, with custody of the minor daughter for eleven months of the next year, and ten months of each ensuing year, until the further order of the court, the custody being awarded to appellee during the remainder of the time, as well as all Saturday afternoons, Sundays, and legal holidays. The parents were given the privilege of taking the child beyond the limits of the State of Missouri at such reasonable times as they might elect, until further orders of the Court.
"Both parents have since remarried, appellant, Mrs. Salkey, now being the wife of Nat Goldsmith, who has joined her in this litigation. The Goldsmiths reside and are permanently domiciled in San Antonio, Bexar County, Texas, and have resided there since their marriage, in October, 1932. In the meantime, about July 1, 1931, appellant, Mrs. Salkey, moved from St. Louis to Los Angeles, California, and resided there until she married Goldsmith and joined him in residence in San Antonio. Salkey still maintains his domicile in the State of Missouri.
"In August, 1934, at the instance of Salkey, upon petition filed in June, 1934, the St. Louis Circuit Court, in which the prior proceedings were still pending, made an order modifying the original decree so as to award the custody of the minor to Salkey from September 1st to June 15th in each year, and to appellant for the remaining two and one-half months in each year. Mrs. Salkey voluntarily appeared and participated in that proceeding. That order was affirmed by the St. Louis Court of Appeals (Salkey v. Salkey, 80 S.W.2d 735), and writ of certiorari was denied by the Supreme Court of Missouri. The Goldsmiths retained the custody of the child in their San Antonio home during that litigation, but in pursuance of the modified order, when made final, they returned her to appellee in St. Louis. There she remained from September, 1935, to June, 1936, when Salkey returned her to the Goldsmiths in San Antonio, as required by the modified decree of the St. Louis Court.
"While the minor was in the custody of the Goldsmiths during the ensuing two and one-half months, under the Missouri decree, Mrs. Goldsmith had herself appointed by the probate court of Bexar County as guardian of the person and estate of her daughter, and she and her husband, on August 5, 1936, while her daughter was residing with her during said period fixed by the existing decree of the Missouri Court, instituted a proceeding in District Court of Bexar County, seeking an order giving them general custody of the child, alleging material changes in conditions affecting its welfare since the rendition of the modified decree of the Missouri Court. Upon that pleading the district judge issued the writ of habeas corpus, as well as an injunction restraining Salkey from interfering with the existing custody of the child. These writs seem not to have been served upon Salkey. Citation was issued to Bexar County, only, for him in the main case, but was not served upon him, it being true, as alleged in appellant's petition, that he was at the time a resident of St. Louis. However, after the expiration of the time fixed in the Missouri decree for the return of the child to him (September 1st), Salkey came to Bexar County, and then filed in the same court an application for writ of habeas corpus for custody of the child and to enforce the terms of the Missouri decree. The two proceedings were consolidated. By a cross-action in the consolidated case the Goldsmiths alleged
that since rendition of the modified decree of the Missouri Court, in June, 1934, conditions affecting the welfare of the minor had changed in various material respects, and prayed that they be given custody of her in the future. The court below sustained Salkey's plea to the jurisdiction of said court, over the Goldsmith's cross-action, upon the ground that the Missouri Court, in the exercise of an admittedly proper jurisdiction, having previously adjudicated the question of the custody of the minor, had continuing and exclusive jurisdiction thereover, and that for the Texas Court to undertake to adjudicate the question, even though under changed conditions affecting the welfare of the minor, would be to deny full faith and credit to the judgment of a court of competent jurisdiction of another State, in contravention of the full faith and credit clause of the Federal Constitution (Article 4, § 1). Upon sustaining Salkey's said plea to the jurisdiction, the court below dismissed appellants' cross-action for the custody of the minor, and ordered them to deliver the minor to appellee. The Goldsmiths appealed. This Court has ordered reversal of that judgment, and the cause is now pending on appellee's motion for rehearing.
"The record shows that under the laws of the State of Missouri, as construed by the courts of that State, when the jurisdiction of the Circuit Court of Missouri was invoked by the parties, and assumed by the Court, for the purpose of divorce and adjudication of the question of the custody of the child, that Court would have continuing (and, apparently by necessary implication, exclusive) jurisdiction to pass upon future questions arising as to the custody of the child until she would become sui juris, notwithstanding its removal, by its custodian, to the latter's new domicile in another State. In re Krauthoff, 191 Mo.App. 149, 177 S.W. 1112; In re Leete, 205 Mo.App. 225, 223 S. W. 962, 968. (Both opinions are in evidence in this case, as the basis of the opinion of the sole witness upon this question.)
"The record also shows that this is not a suit to invoke only the police power of the State for the protection of the minor within its borders, but, on the contrary, one in which the question of the future custody of the child, for the time being, is to be adjudicated.
"In accordance with a provision of the decree of divorce, Salkey provided for the maintenance of the minor up to the time of the filing of this suit.
"The abstract question of whether the legal domicile of the minor, in the general sense, was or is in the State of Missouri, has not been determined by the majority, that question not being deemed necessary to this decision.
"The record shows that at the time of the institution of this proceeding the minor was lawfully in the custody of the Goldsmiths, in their San Antonio domicile, by reason of her delivery to them by appellee in pursuance of the decree of the Missouri Court.
"We conclude that in their cross-action appellants alleged sufficient facts to authorize the court below, given jurisdiction, to give the custody of the minor to appellants, and this conclusion narrows this inquiry to the one question of whether by reason of appellants' domicile in Texas, and the minor's lawful, even if only temporary, residence with appellants in their domicile in said State, the courts of Texas acquired jurisdiction to adjudicate the question of the minor's custody, in view of such changed conditions, notwithstanding the original adjudication of the question of custody was properly made in the Missouri Court. The merits of the controversy between the parties are not at all involved in this appeal, which concerns only the question of jurisdiction of the court below over that controversy.
"A majority of this Court have held that, under the facts stated, the lawful, even though temporary, residence of the minor in the permanent domicile of appellants in Bexar County, Texas, was sufficient to confer jurisdiction upon the district courts of that county upon appellants' suit to recover custody of the minor because of changed conditions materially affecting the minor's welfare, arising subsequent to the original adjudication of the question of custody by the Missouri courts.
"Associate Justice Murray dissents from that holding, contending that in view of the fact that...
