Guthrie v. Ray
| Decision Date | 15 September 1977 |
| Docket Number | No. 19258,19258 |
| Citation | 556 S.W.2d 589 |
| Parties | George Leopold GUTHRIE, Appellant, v. Valerie Mae (Guthrie) RAY, Appellee. |
| Court | Texas Court of Appeals |
Herbert H. Landau, Dallas, for appellant.
Grier H. Raggio, Raggio & Raggio, Inc., Dallas, for appellee.
This suit was brought by the father of a five-year-old boy to modify a pre-1974 divorce decree awarding custody to the mother. At the close of the father's evidence, the court granted the mother's motion for judgment denying the modification. We hold that this ruling was error because the court did not recognize and decide the fact issue of material and substantial change in the circumstances of the child. Such an issue, we hold, was raised by evidence that the child had resided continuously with the father for the three years following the divorce with the consent of the mother and that a change in this situation would have been distressing to the child. Accordingly, we reverse the judgment and remand the cause for a new trial.
Before discussing the merits, we must consider several procedural questions. In the first place, the mother contends that the conservatorship issue was not properly raised in the trial court because the divorce was granted before January 1, 1974, the effective date of the Family Code, and the father's first pleading in the present proceeding was made as a motion in the original divorce proceeding rather than as a petition in a new suit as contemplated by the Code. The applicable provision of the Code is section 4(b) of the transitional provisions, as follows:
(b) Any action or suit commenced after January 1, 1974, that has as its object the modification of an order, judgment, or decree entered prior to January 1, 1974, but which under this Act would be a suit affecting the parent-child relationship, is governed by the provisions of this Act, and shall be treated as the commencement of a suit affecting the parent-child relationship in which no court has continuing exclusive jurisdiction. Acts 1973, ch. 543, § 4(b), at 1459.
The mother insists that the present proceeding cannot be treated as a new suit because she was not served with citation as required by section 11.09, 1 no social study had been completed, as provided by section 11.12, and the petition did not contain all the allegations for a suit affecting the parent-child relationship as required by section 11.08.
We conclude that none of these contentions are tenable because section 4(b), above quoted, requires that this proceeding be treated as an independent suit, regardless of whether the usual prerequisites of a suit affecting the parent-child relationship have been satisfied. See Curtis v. Gibbs, 511 S.W.2d 263, 268 (Tex.1974). No problem arises here concerning exclusive jurisdiction or venue in the court of some other county, since all the parties still reside in Dallas County, where they resided at the time of the divorce. If there is any question concerning sufficiency of the pleading, service of process, or availability of the social study report, these questions may be raised by exceptions, motion to quash service, motion to postpone the hearing, or in some other appropriate manner. This proceeding must nevertheless be "treated as the commencement of a suit affecting the parent-child relationship," under section 4(b), since the previous order was issued before 1974. Consequently, the trial court had jurisdiction to decide the conservatorship issue.
The case is further complicated procedurally by an application for writ of habeas corpus filed by the mother. We conclude that this application does not affect the father's suit to modify the previous conservatorship order. The application for habeas corpus was filed as a separate action in the same court after the father's petition to modify had already been filed. In answer to the application for writ of habeas corpus, the father pleaded grounds for modification of the conservatorship. The judge signed an order consolidating the two proceedings, but he heard them separately. On hearing the application for habeas corpus, he granted the writ and directed the father to surrender possession of the child to the mother. The father complied with this order, but proceeded with his petition for modification of conservatorship, which was heard several weeks later.
We agree with the mother's contention that under section 14.10(c), the grounds alleged for modification of the conservatorship did not constitute a defense to the application for writ of habeas corpus, since they raised no "serious immediate question concerning the welfare of the child." McElreath v. Stewart, 545 S.W.2d 955, 958 (Tex.1977); Standley v. Stewart, 539 S.W.2d 882, 883 (Tex.1976). We also agree with the mother's argument that the residence of the child in the state for twelve months can have no effect on the application for habeas corpus because the twelve-month provision in section 14.10(b)(2) applies only to an application to enforce a "previous order . . . granted by a court of another state or nation."
Nevertheless, we conclude that the habeas corpus proceeding has no bearing on the present appeal. The order granting the writ of habeas corpus was issued before the hearing on the petition to modify conservatorship, and no complaint of that order is made here. We regard the later order denying the modification of conservatorship, from which the present appeal is taken, as having been made in the original action to modify. After the two proceedings were consolidated, the father filed a two-part amended pleading in the consolidated proceeding. The first part was styled "First Amended Answer to Writ of Habeas Corpus," and the second was styled "Motion to Modify in Suit Affecting the Parent-Child Relationship." We regard this motion to modify as an amendment of the original petition in the proceeding to modify conservatorship. Consequently, after the writ of habeas corpus was granted, the earlier proceeding to modify conservatorship remained pending in the trial court as a separate and independent suit, and the trial court properly heard evidence on the conservatorship issue.
Although the conservatorship issue was thus properly presented to the trial court, the record indicates that the judge did not recognize it and did not exercise his fact-finding function in deciding it. The only evidence before the court was that presented by the father. After the close of the evidence, the mother's counsel made an oral motion for...
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