Jacobsen v. Haas

• Decision Date: 24 January 1985
• Docket Number: No. 13-84-447-CV,13-84-447-CV
• Citation: 688 S.W.2d 634
• Parties: Ada P.C. JACOBSEN, Relator, v. The Honorable Rene HAAS, Respondent.
• Court: Texas Court of Appeals

Page 634

688 S.W.2d 634

Ada P.C. JACOBSEN, Relator, v. The Honorable Rene HAAS, Respondent.

No. 13-84-447-CV.

Court of Appeals of Texas Corpus Christi.

Jan. 24, 1985.

Order Feb. 25, 1985.

Pamela E. George, Piro & Lilly, P.C., Houston, for relator.

Scott T. Cook, Corpus Christi, for respondent.

Before NYE, C.J., and SEERDEN and BENAVIDES, JJ.

OPINION

SEERDEN, Justice.

This is an original mandamus proceeding brought by relator Ada Jacobsen, requesting a writ of mandamus directing the Honorable Rene Haas to grant a writ of habeas corpus returning the minor children, Jane and Jacqueline, to relator, the managing conservator. The real party in interest is Jacob Jacobsen, relator's ex-husband and possessory conservator of the minor children. The relator and her former husband were divorced on April 4, 1983 in Nueces County, Texas. The couple separated in July of 1982, and the minor children had resided with Jacob Jacobsen in Nueces County, Texas from that date until the incidents which precipitated these proceedings. The decree of divorce, by agreement, named relator the managing conservator of the children. However, by oral agreement, the minor children remained living with Jacob Jacobsen, who was named possessory conservator by the divorce decree. In July of 1984, the managing conservator reacquired possession of the children and, subsequently, took them to her home in Toronto, Canada. In October of 1984, Jacob Jacobsen regained possession of the children and returned them to Corpus Christi, Texas. Unable to secure return of her children, on November 4, 1984, relator filed an application for writ of habeas corpus to compel return of the children to her pursuant to TEX.FAM.CODE ANN. § 14.10 (Vernon Supp. 1984). ¹ After hearing, respondent denied relator's application for writ of habeas corpus, and the action now pending before this Court ensued.

Under § 14.10(a), a court is required to grant a writ of habeas corpus if it finds that the relator is entitled to possession of a child by virtue of a court order. Forbes v. Wettman, 598 S.W.2d 231 (Tex.1980). The issues of best interest of the child and right of possession should not be relitigated in the habeas corpus proceeding. Schoenfeld v. Onion, 647 S.W.2d 954 (Tex.1983); McElreath v. State, 545 S.W.2d 955 (Tex.1977). The right of relator to possession of a child by virtue of a court order is enforceable by a mandamus. Forbes v. Wettman, 598 S.W.2d at 232; Almarez v. Williams, 673 S.W.2d 923, 926 (Tex.App.--San Antonio 1984, no writ).

In Strobel v. Thurman, 565 S.W.2d 238 (Tex.1978), the Court said that, under § 14.10, the writ should be granted "upon proof of the bare legal right to possession," but the Court continued as follows:

"There are some exceptions to this use of the remedy. A writ may be denied if the prior order was 'granted by a court that lacked jurisdiction' § 14.10(b)(1), 'if the child has not been in the relator's possession for at least six months' § 14.10(b)(2), 'if there is a serious immediate question concerning the welfare of the child' § 14.10(c), or 'if the right to possession of a child is not governed by a court order' § 14.10(e)."

A review of the evidence and testimony adduced at the habeas corpus hearing shows that there is no question but that relator was named managing conservator of the minor children and granted all the appropriate and customary rights of a managing conservator, that the court appointing such managing conservator had jurisdiction and that such court order had not been changed or modified. Jacob Jacobsen made no claim that there was a serious, immediate question concerning the children's welfare. The claim is made, however, that the children had not been in relator's possession and control for at least six months immediately preceding the filing of the petition for the writ. Section 14.10(b)(2).

In their briefs and during oral argument, the parties have made conflicting interpretations of Section 14.10(b)(2). It is Jacob Jacobsen's position that the provision is to be read to mean that the relator must be in continuous possession of the children for at least six months prior to the filing of the application for writ of habeas corpus. It is relator's position that this section means that the children must have been out of the relator's possession for a period of at least six months immediately prior to the filing of the application for writ of habeas corpus. We hold that the correct interpretation of the statute is that the children must have been out of the relator's possession continuously for more than six months immediately prior to the filing of the application for writ of habeas corpus. A review of the facts in this case indicates that the children were in the relator's possession a matter of weeks before the hearing on the application for writ of habeas corpus and that they had not been out of her possession for the entire period of six consecutive months prior to the hearing.

To give this particular exception to § 14.10 the interpretation advocated by Jacob Jacobsen, we believe, would only encourage acts of kidnapping to avoid the obvious intent and effect of § 14.10(a). It is our interpretation of the statute that Section (b)(2) of 14.10 is not applicable unless it can be shown that the relator did not have possession and control of the minor children during any time during the six months immediately prior to the filing of the application for writ of habeas corpus. See Hui-Mei Wise v. Yates, 639 S.W.2d 460 (Tex.1982); Henderson v. Shackelford, 671 S.W.2d 687 (Tex.App.--Amarillo 1984, no writ); Allen v. Allen, 647 S.W.2d 356 (Tex.App.--El Paso 1982, no writ).

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