Spencer v. Spencer
| Decision Date | 23 October 1963 |
| Docket Number | No. 14158,14158 |
| Citation | 371 S.W.2d 898 |
| Parties | Billie Virginia SPENCER, Appellant, v. Edwin T. SPENCER, Appellee. |
| Court | Texas Court of Appeals |
J. Hubert Lee, Austin, John Romberg, Gonzales, for appellant.
Denver E. Perkins, Gonzales, for appellee.
This is an appeal by Billie Virginia Spencer from an order of the 25th District Court of Gonzales County, sustaining the plea of privilege of Edwin T. Spencer to be sued in Matagorda County, the county of his residence. The question presented is whether the petition filed by appellant is one for the enforcement of the child custody provision of the original divorce decree, rendered in Gonzales County, or is for change of custody.
Appellant and appellee were divorced in Gonzales County on January 15, 1955, and the custody of their two minor children was awarded to appellant, subject to appellee's right to visit the children at reasonable times. In July, 1961, appellant suffered a nervous breakdown and went to the Austin State Hospital for treatment. Her father delivered the two minor children to appellee and they have remained in his custody since that time. Appellant was in the hospital for two months during the summer of 1961 and for two months the first part of 1962. She was discharged on April 12, 1962, under the authority of Sec. 80 of the Mental Code, Art. 5547, Vernon's Ann.Civ.Stats. This section authorizes the head of a mental hospital to discharge a patient if he determines that the patient no longer requires hospitalization. On December 27, 1962, appellant filed this petition under the original cause number. She alleged that she was a resident of Travis County and that appellee was a resident of Matagorda County, Texas. After a hearing before the court, appellee's plea of privilege was sustained and the cause ordered transferred to Matagorda County.
It is well settled that a court rendering judgment has exclusive jurisdiction for the purpose of enforcing its prior decree. Ex parte Gonzalez, 111 Tex 399, 238 S.W. 635; Taylor v. Taylor, Tex.Civ.App., 348 S.W.2d 226; Johnson v. Galloway, Tex.Civ.App., 277 S.W.2d 127. It is equally well settled that venue in actions for change of custody is in the county of the residence of the defendant. Spell v. Green, 144 Tex. 535, 192 S.W.2d 260; Lakey v. McCarroll, 134 Tex. 191, 134 S.W.2d 1016; Yeagle v. Bull, Tex.Civ.App., 235 S.W.2d 226. Therefore, we must determine the nature of this proceeding to ascertain the proper venue.
It is our opinion, from an examination of the petition filed herein by appellant, as well as her testimony of the plea of privilege hearing, that the true nature of this proceeding is one for alteration or change of custody of the children. Venue therefore lies in the county of appellee's residence.
The divorce decree of 1955 placed custody in appellant. She became incapacitated in July, 1961. During her incapacity, she could not and did not exercise her legal custody of the children. When her incapacity occurred, her father delivered the actual custody of the children to appellee. Appellant remained in the hospital for two months and did not disturb this actual custody upon her lelease. She reentered the hospital in the first part of 1962, and was released the second time in April, 1962. This petition was not filed until some eight months later. Hence, for a period of eighteen months, she either was unable to exercise her legal custody or voluntarily surrendered the actual custody to appellee. His possession was prima facie lawful. Legate v. Legate, 87 Tex. 248, 28 S.W. 281; Stinson v. Rasco, Tex.Civ.App., 316 S.W.2d 900.
In Thomas v. Thomas, Tex.Civ.App., 228 S.W.2d 548, it was held that when the legal custodian was adjudged of unsound mind, the other parent of the child automatically became the legal custodian. See also Peacock v. Bradshaw, 145 Tex. 68, 194 S.W.2d 551. This is a wholesome rule in that it does not leave the custody of the...
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Livingston v. Nealy, 57
...Liska v. Hall, 357 S.W.2d 601 (Tex.Civ.App.1962); Leonard v. Leonard, 358 S.W.2d 721 (Tex.Civ.App.1962); Spencer v. Spencer, 371 S.W.2d 898 (Tex.Civ.App.1963). Under these cases it is well settled that after the original decree has become final a motion or petition to change custody of a ch......
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Houseman v. Mahin
...or not. Also, with reference to the residence of Mrs. Lettie Mahin, we should like to mention two cases found in her brief. In Spencer v. Spencer, 371 S.W.2d 898. Tex.Civ.App., the mother had, by the court, been given custody of the children in the divorce suit. While she was in a hospital ......
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Dannelley v. Dannelley
...of the Trial Court relies on two Courts of Civil Appeal's cases, Thomas v. Thomas, 228 S.W.2d 548 (.tex.Civ.App.1950, no writ); Spencer v. Spencer, 371 S.W.2d 898 (Tex.Civ.App.1963, no The Thomas case held in effect, that the day on which the divorced wife to whom custody of child had been ......
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Dannelley v. Dannelley, 11397
...minors could be adequately determined. We overrule these points. We hold that this case is determined by the holding in Spencer v. Spencer, Tex.Civ.App., 371 S.W.2d 898, no writ history, which states the rule, in a situation such as we have here, to be that whenever a spouse having legal cu......