Wrather v. Wrather, 5881.

• Decision Date: 25 September 1941
• Docket Number: No. 5886.,No. 5881.,5881.,5886.
• Citation: 154 S.W.2d 955
• Parties: WRATHER v. WRATHER.
• Court: Texas Court of Appeals

154 S.W.2d 955

WRATHER v. WRATHER.

No. 5881.

No. 5886.

Court of Civil Appeals of Texas. Texarkana.

September 25, 1941.

Rehearing Denied October 16, 1941.

Appeal from District Court, Gregg County; D. S. Meredith, Judge.

Action for divorce by Mrs. Irene Wrather against John E. Wrather. The plaintiff was granted a divorce, and the care and custody of a minor child of the parties was awarded to the plaintiff for certain periods and to the defendant for certain periods of time during each year. Thereafter the defendant filed a petition seeking full custody of the child, and the plaintiff filed an answer and a cross-action, as next friend of the child, seeking custody of the child. From the judgment, the defendant appeals, and, from a judgment dismissing a subsequent petition of the plaintiff, she appeals, and the appeals are consolidated.

Defendant's appeal dismissed, and judgment dismissing plaintiff's petition reversed, and cause remanded.

Hurst, Leak & Burke, of Longview, for appellant.

Fred Erisman and Mike Anglin, both of Longview, for appellee.

JOHNSON, Chief Justice.

This is a child custody case. On September 14, 1937, in cause No. 10425-B, styled Irene Wrather, Plaintiff, v. John E. Wrather, Defendant, in the 124th District Court of Gregg County, a judgment was entered granting plaintiff a divorce; a partition of their community property was decreed; the care and custody of their minor child, John McDonald Wrather, was awarded to the mother for certain periods of time and to the father for certain periods of time during each year. No appeal was taken from the judgment. On May 31, 1939, upon hearing of a motion of John E. Wrather and answer of Mrs. Irene Wrather, the court modified the previous decree as to the custody of the child, changing the periods of time during which he should remain in the custody of his parents respectively. This decree expressly ordered that the child be not removed from the State of Texas without permission of the court, except for medical treatment in the State of Louisiana. On September 15, 1939, upon hearing of a motion of John E. Wrather and answer of Mrs. Irene Wrather, the court entered another judgment modifying the one last entered as to the care and custody of the child, changing the divisions of time, naming more in detail the particular days and hours thereof that the custody of the child should be passed and repassed between the parents. On September 6, 1940, John E. Wrather filed another motion, praying that the judgment of September 15, 1939, be set aside and changed to the extent of granting him the full custody of the child, based upon the alleged grounds that Mrs. Irene Wrather had on or about June 1, 1940, removed the child from the State of Texas into the State of Washington; and that Mrs. Irene Wrather had, in violation of the provisions of the judgment of September 15, 1939, failed to deliver the child to his father; and that the father had been compelled to regain possession of the child in the State of Washington by writ of habeas corpus. To this petition or motion Mrs. Irene Wrather filed an answer, and a cross action as next friend of the child, in which she, among other facts, alleged in substance that John E. Wrather since the granting of the divorce had married one Mrs. Nell Uttinger who had a child by her former husband from whom she was divorced, which child was about the age of John McDonald Wrather, and was being reared in the home of John E. Wrather and his present wife, Mrs. Nell Uttinger Wrather, and other facts upon which she claimed that it was not to the best interest of the child John McDonald Wrather to be taken from the custody of his mother and placed in the home of his father and step-mother. On September 21, 1940, a hearing was had upon said petition, answer and cross action, and on November 2, 1940, judgment was entered modifying the judgment entered September 15, 1939. The modification consists of a redivision of the time during which the child should be in the care of each parent, expressing more in detail the day and hours thereof during which his custody should alternate between them. Among other things, the judgment further provides as follows: Paragraph 17. "It is the further order, judgment and decree of the Court that the parties hereto must forthwith and immediately, before undertaking to exercise any of the rights or privileges extended herein, enter into a bond in the sum of $5,000.00 payable to the other party herein, with good and sufficient sureties approved by the Clerk of the District Court of Gregg County, Texas, embodying this judgment, conditioned that such person as principal will strictly obey the orders, judgments and decrees of this Court, and will not remove the said John McDonald Wrather from the jurisdiction of this Court, under the penalty of forfeiting to said adverse party the full...