Hagle v. Leeder, 11673

• Decision Date: 04 June 1969
• Docket Number: No. 11673,11673
• Citation: 442 S.W.2d 908
• Parties: Jeanette HAGLE, Appellant, v. Arlen G. LEEDER, Appellee. . Austin
• Court: Texas Court of Appeals

Page 908

442 S.W.2d 908

Jeanette HAGLE, Appellant, v. Arlen G. LEEDER, Appellee.

No. 11673.

Court of Civil Appeals of Texas Austin.

June 4, 1969.

Martin J. DeStefano, Austin, for appellant.

George A. Day, Brownwood, for appellee.

O'QUINN, Justice.

Jeanette Hagle appealed from action of the district court of Llano County overruling her plea of privilege to be sued in Potter County in a suit brought in August, 1968, by her former husband for change of custody of their two minor children.

The appellant and her present husband, Darryl Hagle, live in Las Vegas, Nevada, where he is stationed in the military service. Since her husband entered the service from Potter County, Texas, and has not changed his legal residence from that place, Mrs. Hagle urges that she is entitled to be sued in Potter County because her residence follows that of her husband.

Appellee Arlen G. Leeder, the former husband and father of the two children, contends that suit for change of custody lies in the county of residence of the legal custodian. The trial court found that Leeder at the time of hearing in November, 1968, was entitled to custody of the children '* * * and that the legal residence of said children was at the time of filing suit and at the time of this hearing * * * in Llano County, Texas * * *'

Appellant and appellee were divorced in a judgment of a district court of Travis County entered August 16, 1960. At that time the two children, both boys, were of pre-school age, one being four years old and the other fourteen months old. The trial court found that the best interest of the children would be served if they were '* * * given into the custody of the Plaintiff (the mother) subject to such agreement as Plaintiff and Defendant may mutually enter into as to which parent the children shall live with during the school months * * *'

The judgment also decreed '* * * that the care, custody and control of said children be granted to Plaintiff * * *' with each parent '* * * having the right to visit the said children at reasonable times and places while the children are living with * * *' the other parent.

It was shown at the hearing on the plea of privilege that appellant and appellee at the time of their divorce in 1960 made an agreement, which was set out in the petition filed by the wife and made known to the trial court, regarding custody of the children. The agreement was that during pre-school years the boys would live with their mother nine months and with their father three months during the summer, but that when they reached school age, the arrangement would be reversed and the boys would live with their father during the school months, September through May, and with their mother in the summer.

There was also testimony that appellant had voluntarily placed the boys with their father early in the summer of 1968 and that they were living with him in Llano County when suit was brought to change custody. The children were still living with their father in October, 1968, when appellee filed his amended petition which was before the court when the plea of privilege was heard in November, 1968.

The trial court, in overruling the plea of privilege, found that the judgment of divorce '* * * referred to an agreement that Plaintiff and Defendant entered into as to which parent the children shall live with during the school months * * * that such agreement was to the effect that * * * (the father) would have the...