Gunther v. Gunther, 594

• Decision Date: 22 March 1972
• Docket Number: No. 594,594
• Parties: Harry GUNTHER, Appellant, v. Joann Lee GUNTHER, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 821

478 S.W.2d 821

Harry GUNTHER, Appellant, v. Joann Lee GUNTHER, Appellee.

No. 594.

Court of Civil Appeals of Texas,

Houston (14th Dist.).

March 22, 1972.

Rehearing Denied April 12, 1972.

Robert C. Floyd, Butler, Binion, Rice, Cook & Knapp, Houston, for appellant.

Jack R. Bailey, Houston, for appellee.

BARRON, Justice.

This is a habeas corpus action filed by Joann Lee Gunther of San Diego, California seeking care and custody of four small children, Rick M. Gunther, Jeffrey C. Gunther, Janette M. Gunther and Sonny M. Gunther, their ages ranging from about ten years to about four years . The children were in the custody of their father, Edmund Harry Gunther, residing in Harris County at the time of trial and are still in his care and custody.

Suit was filed in Domestic Relations Court No. 4 of Harris County, Texas. The court, on application of Mrs. Gunther, had the children placed with the Probation Department, Juvenile Division, of Harris County until further orders of the court. After an extended trial on the merits without a jury, the trial court awarded the permanent care, custody and control of the above children to their mother, Mrs . Joann Gunther, but permitted supersedeas, and the children were released to the custody of the father, Harry Gunther, pending appeal . Specific visitation rights were granted pending appeal to the mother. Appeal is by Harry Gunther, as appellant, assigning 21 Points of Error.

Needless to say, this case has a complicated and unfortunate background so far as the four children are concerned. In early 1968, Harry Gunther and his wife, Joann Lee Gunther, separated, and she filed suit for divorce in the Superior Court of California for the County of San Diego. Interlocutory judgment of divorce was entered on January 8, 1969. On May 15, 1969, by stipulation and agreement of the parties, the care and custody of the children above were awarded to the father, Harry Gunther, with reasonable visitation rights reserved to the mother. After May 15, 1969, an extended and lengthy investigation was made by a California Probation Officer under the direction of the court, and such officer after outlining all facts obtained, recommended that the care and custody of the children be permanently awarded to the father, Harry Gunther, with right of reasonable visitation granted to the mother, Joan Gunther. Apparently the final decree of divorce was entered and signed on May 20, 1969. Mrs. Gunther became dissatisfied about September, 1969 with the custody arrangement and filed a motion to set aside the temporary custody order of May 15, 1969 above and sought custody of the children for herself. On February 24, 1970, the California court denied Mrs. Gunther's motion for change of custody, denied her motion to amend the order so as to grant custody to her, but the interlocutory judgment of divorce of January 8, 1969, and the final judgments thereupon entered were amended to grant Mrs. Gunther specific visitation rights at various times with her children. Both parties were restrained by the California court from removing the children from the state of California without written consent of the other, 'except that if the respondent (father) is assigned within the course of his government duties to another residence, he shall appear before the Court for an Order, with proper notice to the petitioner (mother), as to the children accompanying him.' On March 27, 1970, Harry Gunther appeared in court personally only in answer to Mrs. Gunther's motion to show cause why he should not be held in contempt for refusal to deliver the children to her for Easter vacation as directed. The court held the father in contempt and assessed a $100.00 fine, which was suspended on the father's compliance with the order. No application again to change custody appears in the record in the above order to show cause.

While the record is not clear, thereafter Mrs. Gunther had another petition for change of custody consolidated with the above show cause motion of March 27, 1970, the latter order appearing to be disposed of on that date for all practical purposes. Mrs. Gunther's alleged change of custody petition apparently filed after the contempt hearing, if filed at all, was set for April 20, 1970, was thereafter continued to July 16, 1970, and thereafter continued to August 13, 1970. This petition was apparently filed only a short time after the court had acted on custody on February 24, 1970. Pursuant thereto, and in the absence of Harry Gunther with apparently no notice to him, actual or constructive, another judge on August 18, 1970, completely reversed the custody arrangement and 'modified' the interlocutory judgment of January 8, 1969, and the subsequent court orders of May 15, 1969, and February 24, 1970. In this connection Harry Gunther testified that he never received any type of notice from the California court or from anyone else after the March 27, 1970 hearing, and that he left California with his present wife and the children in April, 1970, (appellee admits between March 27, 1970, and April 20, 1970) and took a job at Casa Grande, Arizona with the U.S. Naval Civil Service. His leaving of California about that time is not disputed. Mrs. Gunther testified that Judge Wilkey (the later judge who awarded custody to Mrs. Gunther) issued a bench warrant for Mr. Gunther and 'by that time Harry was already gone.' This occurred in May of 1970. An attempt was made to prove notice by mail pertaining to the August 18, 1970 hearing, by affidavit of Mrs. Gunther's attorney, but this procedure being clearly hearsay and not specifically relevant in any event, the Texas trial court refused to permit its introduction. We do not believe the record contains any evidence of a motion or application on the part of Mrs. Gunther for change of custody which was received by Mr. Gunther by personal citation, mail, publication, or by any other method. Nor do we think the record supports any finding that notice of the time and place of hearing was ever given to him by authority of the court or by the parties in California, or that he had any knowledge thereof even though the absence of such notice might be considered to be appellant's fault by reason of his move from California.

The testimony shows that appellant 'sold out' in California in April of 1970. He married his present wife, Ava, on April 30, 1969. He never told appellee where he was located, even though the California trial court had restrained him from removing the children out of the state of California. He paid bills through another person. He denied that he knew the whereabouts of appellee, though it is apparent that he did not want her to know his and the children's whereabouts. Appellant had someone in Germany send a letter to a Mr. Olson in California, Mr. Olson being acquainted with Mr. and Mrs. Gunther, falsely written from Germany by Mr. Gunther, stating that he had left the United States and had returned to his native country with the children. In September of 1969 when Mrs. Gunther repudiated her agreement concerning custody, she testified that Mr. Gunther had offered her $2,000.00 if she would never try to regain custody of the children. Appellant lived in Arizona from May until July, 1970. He moved to Texas in July and lived for short times in Burton and Brenham and later moved to Houston and Spring, Texas near Houston. He is now employed in Houston for Thermotics Corporation as an electrical design engineer. He has placed his children in the public schools near his home, and the children seem to be doing reasonably well in school and are seemingly happy. Appellant's neighbors, who had known him for only a short time, testified that he was a good man and each spoke highly of him and of his affection for the children. His salary is now about $1,000.00 per month. He is a good worker and his employer recommended him highly.

Mrs. Gunther, appellee, testified that the original custody agreement in May of 1969 was a 'trick' played upon her by appellant, and that she signed the agreement because she hoped he would come back to her and that they could eventually straighten up their lives. This, of course, was prior to the above order and prior to the order of February 24, 1970. She testified that appellant whipped her and physically was violent toward her in 1968 and 1969, again before the order of February, 1970. In 1969 he caused the children to dislike or to hate her. Her children lived with her until April, 1969, when she signed the custody agreement above referred to. The Probation Officer had originally recommended in 1968 that the parents have joint legal custody; that their physical custody should be in the mother with the father's liberal visitation rights recognized and enforced. She testified that appellant was 'tricky', was not sincere and was devoted solely to himself. She testified further that he 'mistreats' the children, and that he has a violent, drunken temper, though there is no evidence of such from reports or from the children. She testified further that she had been trying to find her children for about seven months, and that she finally found them by employing private detectives who, in some manner, intercepted mail which eventually revealed the children's whereabouts. One of the detectives testified that the Gunther home in Spring was not good, was in disarray and was a veritable 'pigsty'. This was explained by appellant, who stated that various types of furniture and fixtures in his home could not be used because of the doctor's warning that they might aggravate an allergy suffered by two of the children. Neighbors stated that the home was good and the children were well taken care of. The detective stated also that appellant reported to the school authorities that he could not give his specific address because (as reported) appellant was an ex-FBI man and did not want his children to be harassed. The latter is purely hearsay.

Mr....