Lakey v. McCarroll

• Decision Date: 03 January 1940
• Docket Number: No. 7605.,7605.
• Citation: 134 S.W.2d 1016
• Parties: LAKEY v. McCARROLL.
• Court: Texas Supreme Court

134 S.W.2d 1016

LAKEY v. McCARROLL.

No. 7605.

Supreme Court of Texas.

January 3, 1940.

Certified Questions from Court of Civil Appeals of Eleventh Supreme Judicial District.

Proceeding by P. B. Lakey against R. O. McCarroll, to modify an original divorce decree awarding the care and custody of the children to defendant in a suit by Velma Lakey against P. B. Lakey. An order sustaining a plea of privilege was reversed by the Court of Civil Appeals, 131 S.W.2d 181, which certified questions to the Supreme Court.

Questions answered.

Stinson, Hair, Brooks & Duke, of Abilene, for appellant.

Fred T. Porter, of Kaufman, and Fred V. Meredith, of Terrell, amici curiae.

Smith & Smith, of Anson, for appellee.

CRITZ, Justice.

This case is before the Supreme Court on certified questions from the Court of Civil Appeals at Eastland. The record shows the following:

On October 25, 1937, P. B. Lakey filed this suit in the District Court of Jones County, Texas, against R. O. McCarroll, residing in Dawson County, Texas. We shall hereafter refer to P. B. Lakey as Lakey, and to R. O. McCarroll as McCarroll. Lakey's petition in the district court alleges that he was married to Velma Lakey on December 23, 1933; that Velma Lakey was a daughter of McCarroll; that two children were born to such marriage,—namely, George Anthony Lakey, a son two and one-half years of age, and Alvin Lakey, a son ten months of age; that on March 9, 1937, Velma Lakey, who was then living, but who has since died, filed suit in the District Court of Jones County, Texas, for divorce and for the care and custody of the above-named two minor children; that Lakey filed answer to such suit; that such suit was finally tried in said court on May 7, 1937; that as a result of such trial Velma Lakey was granted a divorce and the bonds of matrimony existing between Lakey and his said wife dissolved; and that in such divorce decree the court awarded the care and custody of the above-named children to McCarroll, subject to the further orders of such court. The part of the divorce decree dealing with the care and custody of these children is set out in the petition. It is as follows: "The Court further finds that it would be to the best interest of the two minor children of the plaintiff and defendant that the care and custody be awarded to R. O. McCarroll, the father of the plaintiff, until the further orders of this court, but that the defendant be permitted at all reasonable times to visit and see said children and that defendant's mother, Mrs. Emma Lakey, the grandmother of said children, should be permitted occasionally and with the consent of R. O. McCarroll, to take one or both of said minor children in her home and permitted to keep them over-night if she desired, but that neither of said children be taken out of the state at any time without further orders of the court."

Lakey's petition further alleges that since the entry of the above judgment Velma Lakey has died. It is then alleged that since the entry of the judgment awarding the care and custody of these children to McCarroll, conditions have changed in such a way as to render McCarroll an unfit person to have the care and custody of such children, and to make it to their best interest to remove them from McCarroll's custody and award them to the custody of their father. The petition then contains allegations tending to show that Lakey would be a proper person to have the care and custody of his children. Simply stated, the petition contains allegations of fact which, if found to be true, would justify a court of competent jurisdiction in removing these children from the care and custody of McCarroll and awarding them to the care and custody of Lakey, on account of conditions having changed since the entry of the divorce judgment.

The prayer as contained in Lakey's petition in this suit prays for the issuance of citation, and that on final hearing the court alter and change the original judgment regarding the care and custody to him. The petition also prays for an injunction restraining McCarroll from interfering with Lakey's care and custody of such children, should they be awarded to him, and for general and equitable relief. The petition, taken as a whole, including the prayer, is sufficient to invoke action of a court of competent jurisdiction to relitigate and readjudicate the custody of these children on account of changed conditions.

The record shows that citation was duly issued and served on McCarroll; whereupon he, in due form of law, filed his plea of privilege to be sued in Dawson County, Texas, the county of his residence. Lakey filed a controverting affidavit to this plea of privilege. This affidavit expressly refers to Lakey's petition, and makes it a part thereof. Simply stated, the controverting affidavit is sufficient to show that venue in Jones County, Texas, lawfully exists in this case, if the divorce suit and judgment therein have legal effect to confer or preserve the same in such court. On the other hand, if the divorce suit and decree therein do not have such legal effect, then venue is in Dawson County, as the county of McCarroll's residence. We will later proceed to demonstrate the correctness of this conclusion.

On hearing of the plea of privilege alone in the District Court of Jones County, judgment was entered sustaining McCarroll's plea of privilege, and ordering the cause transferred to Dawson County. Lakey duly appealed to the Court of Civil Appeals at Eastland. On original hearing in the court of civil appeals, that court, by a majority opinion, reversed the judgment of the district court, and remanded the cause thereto, with instructions to dismiss the plea of privilege. Justice Funderburk dissented. Pending action on the motion for rehearing filed by Lakey in that court, the court of civil appeals has certified to this Court two questions. These questions are preceded by a preliminary statement which we must reproduce in order that the questions may be understood. Such preliminary statement and questions are as follows :

"From what has been said and in view of the statute (Art. 4639a) and the opinions construing the same, it was the view of the majority of this court that under a proper construction of said statute (4639a) said District Court of Jones County having once obtained and exercised jurisdiction to adjudicate the issue of proper care and custody of said minors, such court (until the children reached the age of 16 years) had a continuing jurisdiction thereof to re-adjudicate under proper pleadings and testimony the issue of custody thus determined or adjudicated prior thereto.

"(1) Were we correct in so holding? The original opinion by the majority, as well as the minority, is here referred to for fuller statement of the facts involved, as well as the conclusions reached in the respective opinions.

"(2) In the light of said section 2 of Art. 4639a, is Art. 4639a rendered invalid or ineffective to retain in the District Court of Jones County (court of original decree) a continuing and exclusive jurisdiction as respects the custody, control and support of said children (while under the age of 16 years) beyond the finality of such judgment (May 7, 1937) under pre-existing laws in Texas?"

Opinion.

Before proceeding with this opinion, we deem it advisable to copy herein two statutes, such statutes being Articles 4639 and 4639a, Vernon's Ann.Civ.St. These statutes are as follows:

"Art. 4639. A divorce shall not in anywise affect the legitimacy of the children of the parents so divorced. The court shall have power, in all divorce suits, to give the custody and education of the children to either father or mother, as the court shall deem right and proper, having regard to the prudence and ability of the parents, and the age and sex of the children, to be determined and decided on the petition of either party; and in the meantime to issue any injunction or make any order that the safety and well-being of any such children may require."

"Art. 4639a. Section 1. Each petition for divorce shall set out the name, age, sex and residence of each child under sixteen (16) years of age born of the marriage sought to be dissolved, if any such child or children there be; and if there be no such child or children, then the petition shall so state. No Court having jurisdiction of suits for divorce shall hear and determine any such suit for divorce unless such information is set out in such petition or in each cause of action for divorce. Upon the trial of any such cause, and in the event a divorce is granted by the Court, if there are such minor children, it shall be the duty of such trial Court to inquire into the surroundings and circumstances of each such child or children, and such Court shall have full power and authority to inquire into and ascertain the financial circumstances of the parents of such child or children, and of their ability to contribute to the support of same, and such Court shall make such orders regarding the custody and support of each such child or children, as is for the best interest of same; and said Court may by judgment, order either parent to make periodical payments for the benefit of such child or children, until same have reached the age of sixteen (16) years, or, said Court may enter a judgment in a fixed amount for the support of such child or children, and such Court shall have full power and authority to enforce said judgments by Civil Contempt proceedings after ten (10) days notice to such parent of his or her failure or refusal to carry out the terms thereof, and for the purpose of ascertaining the ability of the parents of such child or...