Peacock v. Bradshaw

• Decision Date: 01 May 1946
• Docket Number: No. A-802.,A-802.
• Parties: PEACOCK et al. v. BRADSHAW et al.
• Court: Texas Supreme Court

Page 551

194 S.W.2d 551

PEACOCK et al. v. BRADSHAW et al.

No. A-802.

Supreme Court of Texas.

May 1, 1946.

Rehearing Denied June 5, 1946.

Error to Court of Civil Appeals of Sixth Supreme Judicial District.

Action by G. E. Peacock, Sr., and Pauline Peacock, his wife, against Ammon Bradshaw, Sr., and Gladys Bradshaw, his wife, for custody of George Eugene Peacock, Jr., a minor. To review a judgment of the Court of Civil Appeals, 191 S.W.2d 698, affirming in part and reversing in part the judgment entered, plaintiffs bring error.

Judgment of the Court of Civil Appeals reversed insofar as it reversed district court's judgment, and judgment of district court affirmed.

Norman, Stone & Norman, of Jacksonville, and Shook & Shook and J. L. Shook, all of Dallas, for relators.

Lewis & Chandler, of Jacksonville, for respondents.

SMEDLEY, Justice.

This a suit for the custody of a child, about five years old, brought by petitioners, his father, joined by the second wife, against respondents, the child's maternal grandparents. The trial court rendered judgment April 7, 1945, in favor of petitioners, after holding void and setting aside an order of the court made September 26, 1944, that had awarded the custody of the child to respondents. The Court of Civil Appeals affirmed that part of the trial court's judgment that set aside the order of September 26, 1944, and reversed the judgment in so far as it awarded the custody of the child to petitioners and in that respect remanded the cause for new trial. 191 S.W.2d 698.

Petitioner G. E. Peacock, Sr., and his first wife were divorced by decree of the district court of Cherokee County entered September 6, 1941, and custody of the minor child was by the decree awarded to the mother. Thereafter and until the mother's death on June 3, 1944, the child and his mother lived in respondents' home, and after the mother's death respondents kept the child in their possession and cared for him. Petitioner, the child's father, entered the United States Army during the year 1941, and since that time and until the rendition of the judgment herein he has continuously served in the United States Army as a medical doctor. He was a resident of Cherokee County, Texas, and was a practicing physician there when he entered the army. The decree of divorce required petitioner G. E. Peacock, Sr., to make monthly payments for the support of his minor child, and to keep an insurance policy in effect for the minor's benefit by the payment of premiums. The monthly payments for the child's support have been made and the premiums on the insurance policy have been paid by an allotment from petitioner's army pay to and including the month of March, 1945.

On September 26, 1944, respondents, the maternal grandparents of the child, filed a petition in the district court of Cherokee County praying that the court award to them the custody of the minor child and that petitioner G. E. Peacock, Sr., be ordered to continue to make the monthly payments for the support of the child and to pay the premiums on the policy of insurance, and that respondents be authorized to expend the monthly payments for the support of the child. On the day the petition was filed, and without the issuance of any notice or other process and without the knowledge of petitioner, G. E. Peacock, Sr., the court made an order in accordance with the prayer of respondents' petition.

After the filing of the petition herein by G. E. Peacock, Sr., and his second wife, on January 18, 1945, respondents were served in Maricopa County, Arizona, with copies of the petition, and nonresident notices on March 14 and March 23, 1945. Respondents filed herein, on April 5, 1945, pleas of privilege alleging that they were not residents of Cherokee County, Texas, but were residents of Maricopa County, Arizona, and that no exception to exclusive venue in the county of one's residence provided by law existed in the cause. The trial court sustained petitioner's exceptions to the pleas of privilege. Respondents made no further appearance, and the trial court, after hearing the pleadings, the evidence and the argument, rendered judgment for petitioners, as has been stated.

Full findings of fact were made and filed. The findings, after setting out the facts that have been stated above, contain statements of material facts found as follows: The order of September 26, 1944, awarding the custody of the child to respondents was improvidently entered, was made without any notice, actual or constructive, to petitioner, the father of the child, and was of no force or effect against petitioner. Respondents were notified by telegrams of the filing of the petition herein and the issuance of the restraining order and writ of habeas corpus. The telegrams were sent to respondents' address in El Paso, Texas, and were delivered to them at Hot Springs, New Mexico, a short distance from El Paso, on January 18 and 19, 1945. When respondents filed their petition in the district court of Cherokee County, on September 26, 1944, they were residents of El Paso, Texas. At the time of the filing of the proceedings herein by petitioners and the issuance of the various processes and writs herein, respondents were not residents of Phoenix, Maricopa County, Arizona. Respondents did not appear on January 29, 1945, the first date set for hearing herein, nor on March 14, 1945, the second date. They removed the minor child to the state of Arizona after they had actual notice of all of said proceedings. The pleas of privilege filed herein by respondents on April 5, 1945, were wholly insufficient as such, but constituted an appearance and invoked the jurisdiction of the court over the persons filing the same. The evidence conclusively shows that petitioner G. E. Peacock, Sr., is a fit and proper person to have the custody of his child. Petitioner Pauline M. Peacock, wife of G. E. Peacock, Sr., has been instructed by him to act for him in securing the awarding of the care and custody of the child and in caring for the child in his absence, and she is a proper person to have the care and custody of the child. Conclusions of law made and filed by the trial court support the judgment rendered by that court in favor of petitioners.

After careful examination of the record, the briefs and the authorities, we have reached the conclusion that the Court of Civil Appeals made correct disposition of the contentions made by respondents, who were appellants in that court, except in its assumption that when the trial court's judgment was rendered the child was domiciled in the state of Arizona, and in its ruling, based on that assumption, that the judgment awarding the custody of the child to petitioners was ineffective.

The pleas of privilege filed herein by respondents were in the form prescribed by Article 2007 of the Revised Civil Statutes, Vernon's Ann.Civ.St. art. 2007, but they did not allege that the parties filing them were residents or inhabitants of any county in the state of Texas. On the contrary, the pleas alleged that "the county and state of the residence of this defendant * * * is Maricopa County, Arizona." The pleas were insufficient. Revised Civil Statutes, Article 1995, Vernon's Ann.Civ.St. art. 1995; Kountze v. Smith, Tex.Civ.App., 97 S.W.2d 737; Holcomb v. Williams, Tex. Civ.App., 194 S.W. 631; Duncan v. Glasscock, Tex.Civ.App., 118 S.W.2d 658. Respondents' brief in the Court of Civil Appeals seems to argue that they may have had two places of residence, one in Arizona and one in El Paso County, Texas, and that the pleas might be sufficient as pleading the privilege of being sued in El Paso County. If the pleas were intended to claim that privilege, they should have stated, as Article 2007 requires, that the defendants resided in El Paso County, so that if the pleas were sustained the cause could be transferred to that county. As drawn and filed the pleas seem to claim the privilege of being sued in Maricopa County, Arizona, and to seek the transfer of the cause to that county in Arizona. Since the insufficiency of the pleas of privilege appeared on their face, they were properly tested by exception and controverting affidavits were unnecessary. Yates v. State, Tex.Civ.App., 3 S.W.2d 114; Duncan v. Glasscock, Tex.Civ.App., 118 S.W.2d 658.

We approve also of the decision of the Court of Civil Appeals that the filing of the pleas of privilege by respondents constituted appearances in the cause and subjected their persons to the jurisdiction of the court as fully as would the issuance of proper citation and its proper service within this state. York v. State, 73 Tex. 651, 11 S.W. 869; Spivey v. Saner-Ragley Lumber Co., Tex.Com.App., 284 S.W. 210; Texas Employers' Ins. Ass'n v. Evans, Tex.Civ. App., 2 S.W.2d 566; Banco Minero v. Ross & Masterson, 106 Tex. 522, 533, 172 S.W. 711; State v. Standard Oil Co., 130 Tex. 313, 333, 107 S.W.2d 550; Davis v. Battles, 143 Tex. 378, 186 S.W.2d 60; Croan v. McKinney, Tex.Civ.App., 185 S.W.2d 768, 771, affirmed, McKinney v. Croan, 144 Tex. —, 188 S.W.2d 144.

The Court of Civil Appeals correctly held that the order entered September 26, 1944, awarding custody of the child to respondents, without the issuance of any notice or other process and without the knowledge of petitioner G. E. Peacock, Sr., was as to him void, and did not affect his right to the custody of his child. Section 1, Chapter 39, Acts Regular Session, 44th Legislature, p. 112, Article 4639a, Vernon's Annotated Civil Statutes; 43 C.J.S., Infants, § 8, p. 59.

The Court of Civil Appeals stated in its opinion that the minor, on the date of the rendition of the judgment herein by the district court, was domiciled in the state of Arizona, and concluded that because the child was then domiciled in that state the district court of Cherokee County was without jurisdiction to render judgment awarding custody of the child.

The general rule is that a minor, because he is not sui juris, can...