Wicks v. Cox

• Decision Date: 18 February 1948
• Docket Number: No. A-1420.,A-1420.
• Citation: 208 S.W.2d 876
• Parties: WICKS et al. v. COX et al.
• Court: Texas Supreme Court

208 S.W.2d 876

WICKS et al. v. COX et al.

No. A-1420.

Supreme Court of Texas.

February 18, 1948.

Rehearing Denied March 17, 1948.

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

Habeas corpus proceeding by Miss Edith Cox against Mrs. Loy Stephens Wicks and husband to obtain the custody of John Lambert Stephens, Jr., wherein A. H. Mason intervened as a petitioner. From an adverse judgment, the relator and the intervenor appealed to the Court of Civil Appeals. To review a judgment of the Court of Civil Appeals, 203 S.W.2d 979, reversing the trial court's judgment, the defendants bring error.

Judgment of Court of Civil Appeals reversed.

Irwin & Irwin, T. K. Irwin, Jr., Chaney & Davenport, and F. B. Davenport, all of Dallas, for petitioners.

G. Q. Youngblood, Joe H. Jones, and Bern Wilson, all of Dallas, for respondents.

GARWOOD, Justice.

This rather unusual child custody case arises on habeas corpus proceedings in Dallas County. Throughout this opinion we use the trial court designation of the parties. Relator, Miss Edith Cox of Lynchburg, Virginia, supported by intervenor, A. H. Mason, the qualified and acting probation officer of the Juvenile and Domestic Relations Court of Lynchburg, sought to recover the child from the possession of respondents, its mother and stepfather, Mr. and Mrs. Loy Wicks of Dallas County on the ground that early in 1941 Mrs. Wicks and her then husband, John Lambert Stephens, (father of the child), had abandoned the child in Lynchburg where the parents and child then resided; that in a state of dire necessity the child was thereupon taken into custody by intervenor, Mason, in his capacity as probation officer, and turned over to relator, Miss Cox, who, under his authority kept it and adequately supported it herself continuously from that time until October 11, 1946, when the respondent mother came to Lynchburg and, without the knowledge or consent of relator or any authority of Lynchburg or the State of Virginia, got possession of the child by a ruse while it was at school and forthwith carried it off with her to Dallas. Respondents' answer consisted of a general denial, prayer for custody of the child based upon changed conditions since 1941 and other allegations not necessary to mention here. The child's father was not a party to the proceedings, and the only evidence in the record regarding him was undisputed evidence that, while domiciled in Virginia in 1941, he had abandoned both respondent and their children, including the child here in question, has since contributed nothing to the support of the child and was a drunkard. There is nothing in the record about his present or recent whereabouts. It also appears that he and the respondent mother were divorced in 1943, that in 1945 the mother was married to her present husband, Loy Wicks, and that the two latter have been domiciled as husband and wife in Dallas County since some time in 1945. The 1943 divorce decree, which was introduced in evidence over the objection of relator and intervenor, contained a recital that the respondent mother had been awarded custody of the children by a Virginia decree, but for the purposes of this opinion, we will assume such recital to be without legal effect.

Upon a trial to the court the latter rendered judgment awarding custody of the child to the respondent mother, the decree containing the only findings in the trial record, to-wit: (a) That the material allegations of relator and intervenor were false and (b) that respondent mother was "a proper person" to have custody.

The Court of Civil Appeals held that by the undisputed evidence the child was legally domiciled in Virginia at the time of suit and accordingly beyond the jurisdiction of the courts of Texas to regulate its custody. On this ground it reversed the trial court and rendered judgment "to award the child to the duly qualified and acting probation officer of the Juvenile Court of Lynchburg, Virginia, so that such officer might take such child back to the City of Lynchburg and let the proper court in that jurisdiction make such award of the care, custody and control of said child as provided under the laws of the State of Virginia." The court evidently considered only such assignments of error as related to the question of jurisdiction.

While we granted the writ of error upon the point attacking the holding that the child was legally domiciled in Virginia, we have elected to decide the case upon the broader question of whether, assuming the Virginia domicile, the Dallas District Court lacked jurisdiction to award custody. We think the court had jurisdiction, and that accordingly the judgment of the Court of Civil Appeals should be reversed.

In Goldsmith v. Salkey, 131 Tex. 139, 112 S.W.2d 165, 116 A.L.R. 1293, this court adopted the opinion of the Commission of Appeals which in turn clearly rejected the theory that our courts must decline jurisdiction to award custody whenever it appears that the legal domicile of the child is in another state. In that case the child was present in Texas in the custody of its mother, a Texas resident, but its legal domicile was clearly in Missouri, where the father resided and had custody about three-fourths of each year under an apparently valid Missouri decree. The court evidently thought then, as we think now, that the sounder rule on the point emanates from Justice Gaines in Campbell v. Stover, et ux., 101 Tex. 82, 104 S.W. 1047; that Campbell v. Stover overruled anything to the contrary in the slightly earlier case of Lanning v. Gregory, 100 Tex. 310, 99 S.W. 542, 10 L. R.A.,N.S., 690, 123 Am.St.Rep. 809, and should prevail over any contrary doctrine deducible from the later case of Milner v. Gatlin, Tex.Com.App., holding approved by Supreme Court, 261 S.W. 1003. Our recent decision in Peacock v. Bradshaw, 145 Tex. 68, 194 S.W.2d 551, mentioned by the Court of Civil Appeals, does not conflict with Goldsmith v. Salkey, supra. The Peacock case held that the child's legal domicile was in Texas, and that the Texas court had custody jurisdiction despite the fact that the child was physically beyond the state at the time of the proceedings. So, whatever doubt may have once existed on the subject, the rule now is that technical legal domicile of the child in this state is not a sine qua non of child custody jurisdiction on the part of our courts.

The foregoing does not, of course, mean that our courts should take jurisdiction to award custody in every case where the child and the parties contending for its possession happen to be here before the court. Nor does it mean that a child's foreign legal domicile is not an important consideration in cases of this kind. We certainly do not imply that our courts should be accessories after the fact to disorderly practices of individual parents or others who thus seek to avoid the normal processes of justice by ex parte determination of what they happen to consider a more propitious forum. A review of the decisions bearing on the subject shows the impracticability of trying to formulate rules in other than the most general...