Vickers v. Faubion

• Decision Date: 13 October 1920
• Docket Number: (No. 1698.)
• Citation: 224 S.W. 803
• Parties: VICKERS et al. v. FAUBION.
• Court: Texas Court of Appeals

224 S.W. 803

VICKERS et al. v. FAUBION.

(No. 1698.)

Court of Civil Appeals of Texas. Amarillo.

October 13, 1920.

Error from District Court, Potter County; Henry S. Bishop, Judge.

Habeas corpus by Earl W. Faubion against Beulah Vickers and husband for the custody of a minor child. Judgment awarding custody to plaintiff, and defendants bring error. Reversed and remanded.

Miller & Guleke and Ben H. Stone, all of Amarillo, for plaintiffs in error.

J. A. Hughes, of Wichita Falls, for defendant in error.

HUFF, C. J.

The defendant in error, as relator, brought this action against Beulah and Willie Vickers, in the nature of a habeas corpus, for the custody of a six year old child, Marie Faubion. It is alleged:

"That on the 22d day of March, 1913, he (Earl W. Faubion) was lawfully married to Beulah Lewis, and that said marriage relations continued to exist until the 6th day of January, 1920, and that upon said last-named date said marriage relations were dissolved by a decree of the district court of the Seventeenth judicial district in and for the county of Jefferson, state of Oklahoma, rendered by Hon. Cham Jones, judge of said court, a copy of which is herewith filed, marked Exhibit A, and made a part of this petition.

"(2) That during the existence of the marriage relation heretofore set out there was born to the said Earl W. Faubion and Beulah Faubion one child, named Marie Faubion, who is now of the age of six years; that subsequent to the divorcement decree of January 6, 1920, and after the said Beulah had violated the terms and provisions of said decree, to wit, on the 15th day of March, 1920, upon petition of this petitioner, on one of the judicial days of the regular March term of the district court in and for Jefferson county, Oklahoma, Hon. Cham Jones, judge of said court, caused to be rendered a supplemental decree, modifying and changing the terms of the decree of January 6, 1920, by the terms of which modified decree, and for the reasons therein stated, gave to your petitioner exclusive care, custody, and control of the infant child, Marie Faubion, a certified copy of which decree is hereby filed, marked Exhibit B, and prayed to be read and considered as a part of this petition.

"(3) Your petitioner would further state to the court that he is the father of Marie Faubion, and that she is now being detained and restrained of her liberty, and from the custody of your petitioner, and against his will, in the county of Potter and state of Texas, by Beulah Vickers and Willie Vickers; that the said Beulah Vickers and Willie Vickers, without his knowledge and consent, and in violation of the terms of the decree of the district court of Jefferson county, Oklahoma, unlawfully took and carried the said Marie Faubion into the state of Texas, where she is now being unlawfully held, detained, and restrained of her liberty, as aforesaid."

The prayer is for the issuance of the writ, etc.

Before considering the errors assigned, in view of the defendant in error's contention that the plaintiffs in error confused the writ of habeas corpus with the petition, and answered in a civil suit, it will be necessary to determine the nature of such proceeding. It will be noted the petition for the writ nowhere charges that the respondents were unsuited for the care and custody of the child, or charges them with immorality, incompetency, or inability financially. It is simply alleged they violated the decree of the district court of Oklahoma. The trial court, at least in part, appears to have based his judgment on certain facts determined by him as amounting to immoral conduct and wrongs before the original decree of divorce and apparently upon the fact that the plaintiffs in error afterwards married in Texas, thereby violating the laws of Oklahoma, and that the wife is guilty of bigamy, or that plaintiffs in error were living in adultery. None of these things, it will be seen, were charged in the petition. The contention urged by the defendant in error apparently is that these facts were not necessary to be alleged, and neither was it necessary to plead the laws of the state of Oklahoma with reference to granting divorces. Beulah Vickers is the mother of the child, the fruit of her marriage with Earl Faubion, from whom the Oklahoma district court gave her a divorce. In Texas it has been repeatedly held that the proceeding by habeas corpus to determine the parent's right to the custody of his minor child is a civil action, within the meaning of our Constitution and statutes. Legate v. Legate, 87 Tex. 248, 28 S. W. 281; Finney v. Walker, 144 S. W. 679; Long v. Smith, 162 S. W. 25. In the latter case this court, speaking through Judge Hendricks, held:

"The writ of habeas corpus, used in this state as a form of procedure for the purpose of litigating questions as to the proper custody of infants, and inquiring into their status to that end, is not really a procedure, * * * calling in question an illegal restraint of children in the sense of false imprisonment, * * * but is one of a development of the law on that subject, addressed to the equity powers of courts of chancery for the protection of the child's welfare; the change of custody, if made, following the ascertainment of this problem as a remedial right."

In 12 R. C. L. "Habeas Corpus," par. 75, p. 1257, it is said:

"In proceedings to determine the custody of infants, such an action is said to partake of the nature of a private suit in which the public has no concern. The rights of the parties are determined as in any civil action, and being a civil action and the judgment rendered being a final adjudication in regard to such custody, the right of appeal follows." Jamison v. Gilbert, 38 Okl. 751, 135 Pac. 342, 47 L. R. A. (N. S.) 1133; People v. Court of Appeals, etc., 27 Colo. 405, 61 Pac. 592, 51 L. R. A. 105.

As to the form and requisite of the petition for habeas corpus:

"The fundamental rule of all pleadings should be followed in drawing a petition for writ of habeas corpus, that facts only concerning the intention of the person restrained are to be stated. Conclusions of law should be avoided." 12 R. C. L. par. 47, p. 1231.

Since this is a civil action, to determine the right to the custody of the child, and in which the public has no concern, and the rights of the parties are to be determined, as in any other civil action, the parties should, in their petition, plead the necessary facts constituting their right to the custody of the child, and the facts showing the incompetency of the other party. In this action, as in any other, the respondent, we think is entitled to know the grounds upon which the relator relies rendering her unfit for the care and custody of the child.

We believe it unnecessary to discuss the first assignment, based on the action of the court in overruling a general exception to the petition.

The second, third, fourth, and eighth assignments will be considered together. These assignments are based on the action of the court in admitting the testimony of J. A. Hughes, a lawyer, over the objection of plaintiffs in error, and in holding that Mrs. Vickers had violated the laws of Oklahoma in Texas. The testimony of Hughes is to the effect that the statutory laws of Oklahoma where the divorce plea was granted is that a marriage, entered into within six months after a decree of divorce has been entered, is absolutely void. The objections urged were: (1) There were no pleadings authorizing the evidence to prove the laws of Oklahoma; (2) that it was irrelevant, incompetent, and immaterial; (3) the statute books of that state were the best evidence. The judgment and findings of the court are objected to on the ground that having failed to plead the laws of that state, the presumption prevailed that the laws there are the same as in this state, and that the marriage between plaintiffs in error took place in Texas, and under the laws of Texas was valid and did not violate the laws of Oklahoma.

With reference to the third objection to the testimony, the rule is that the laws of other states are facts to be established in this state by evidence competent, according to the rules here prevailing. The general rule seems to be that parol evidence is admissible to establish the unwritten law of a foreign jurisdiction, but not to establish the statutory law, as in such cases the statutes themselves would be the best evidence.

"It has been held that the general rule that the statutes of another state cannot be proved by parol is especially applicable where it is provided by statute that such proof may be made by a printed copy; for there can be no valid reason for allowing proof by parol." 25 R. C. L. "Statutes," par. 205, p. 951.

Article 3692, R. C. S., provides that the printed statutes of other states, purporting to have been printed under authority thereof, shall be received as evidence of the acts therein contained. See, also, article 3693; Martin v. Payne, 11 Tex. 292; Railway Co. v. Conrad, 99 S. W. 209; Johnston v. Branch, 143 S. W. 193; Railway Co. v. Smythe, 55 Tex. Civ. App. 557, 119 S. W. 892; Railway Co. v. Ryan, 214 S. W. 642; Seiders v. Merchants Life Ass'n (Sup.) 54 S. W. 753; Cole v. District Board, etc., 32 Okl. 692, 123 Pac. 426, Ann. Cas. 1914A, 459.

In the absence of an allegation and of proof of the laws of another state, the rights of parties arising out of the facts alleged, or alleged and proved, must be determined by the laws of this state. Buford v. Holliman, 10 Tex. 560, 60 Am. Dec. 223; Lamb v. Hardy (Sup.) 211 S. W. 445; Johnston v Branch, 143 S. W. 193; Kinney v. Tri-State Telephone Co., 201 S. W. 1180; Blethen v. Bonner (Sup.) 53 S. W. 1016; Thompson v Thompson, 202 S. W. 175. The court was in error in admitting the testimony of the witness and in overruling the objections. This being true, the marriage of plaintiffs in error in Texas was valid, and did not violate the laws of Oklahoma or of Texas. This...