Chambers v. Girls Haven of Orange , 1953 Tex. App. LEXIS 2419 ( 1953 )

On motion for rehearing

(1) In the argument under Ground 1 of the motion if seems to be said that the verbal order of April 12th was only the court’s expression of consent, made pursuant to Article 2336, that Girls Haven might place Margaret in a suitable home, and that it did not substitute for Girls Haven the persons who now have Margaret in their possession by making Margaret the “ward” and subjecting her “to the guardianship”, (within the meaning of Art. 2336) of the persons who now have Margaret.

It seems to us that if the verbal order of April 12th was only the expression of consent provided for by Article 2336, Girls Haven remains the “guardian” of Margaret and Margaret remains the “ward” of Girls Haven and thus the domicile of Margaret remains in Texas and the plea to the jurisdiction of the trial court necessarily fails. However, we are not in agreement with the suggestion under Ground 1;

The informality of the proceeding of April 12th is certainly consistent with a mere expression of consent, but testimony of the judge who made the verbal order of April 12th • supports a finding that it changed the “guardianship” of Margaret from Girls Haven to the persons with whom she now resides. For convenience wé shall refer to these persons as the nonresidents. Thus the judge said he “changed the order.” This statement must have referred to the original order declaring dependency and making Girls Haven the “guardian” of Margaret. He also said that his verbal order of April 12th changed the custody of Margaret; this custody is presumably that mentioned in Article 2335. These statements indicate that he meant something more than , a change in possession. We note also a statement by this witness that in the conversation with Mrs. Chambers about his verbal order of April 12th he told her that she could “go to court and attempt to have the order set aside. You will have to get an attorney.” This construction of his own order by the witness indicates that the order was more than a simple consent.

Finding 4 of the trial court’s findings of fact states that Girls Haven was relieved of custody and that custody was transferred to the non-residents, and other findings refer to a change in custody and to a transfer of custody. Finding 7 states that “Margaret’s custody” was given to the non-residents on April 12th. Finding 8 refers to the non-residents as “having” Margaret’s “custody” and Conclusion of Law 1 refers to the non-residents as “having” Margaret’s “actual and legal custody.” Conclusion 2 is that “the custody of — Margaret Chambers should not be changed because the best interests of said child would not thereby be served.” Conclusion 2 evidently forbids a change from the non-residents, not from Girls Haven, to Mr. and Mrs. Chambers. The petition of Mr. and Mrs. Chambers prays that “the custody and care of Margaret (be) restored to them” and this must be the custody which was denied by Conclusion of Law 2. All of these references to custody in the Findings of Fact presumably refer to the same thing and evidently mean more than possession. Thus in Conclusion of Law 1 the non-residents have “actual and legal custody”; the use of actual as well as legal shows that the trial court intended more than possession and meant, instead, that the non-residents had the right to custody which is referred to in Art. 2335; and Conclusion of Law 2, denying the Chambers’s petition, would seem to refer to exactly the same thing as did Conclusion of Law 1. All these matters show that the trial court regarded the non-residents, not as mere possessors but as successors in right to Girls Haven, that is, as the “guardians” of Margaret. The findings respecting the order of April 12th have not been attacked and are, of course, binding on us.

The plea in abatement, so-called, attacking the trial court’s jurisdiction, which the trial court purported to sustain, alleges that “custody” was transferred to the non-residents “on or about April, 1952” and that Margaret had not only resided but had also been domiciled out of the State “since April, 1952.” The allegation of domicile in addition to the allegation of residence indicates that the pleader had in mind a change in “guardianship”. In paragraph 7 of this plea it is alleged that “at the time Girls Haven was cited it no longer had custody of said minor and did not have control of said minor for the reason that said minor had been transferred to other parties on or about April, 1952” and it is also alleged of the non-residents that they had both control and custody. Use of both words, control and custody, indicates a distinction by the pleader between possession and the right to custody.

Finally, the argument under Girls Haven’s Counterpoints 2, 3, 4, 5, and 6 indicates that Girls Haven construed the verbal order of April 12th as one changing “guardianship”; and it is stated on page 12 of Girls Haven’s original brief that Margaret had become a ward of the non-residents and because of this had assumed the domicile of the non-residents.

In view of this record we adhere to our •conclusion, arrived at on the original hearing, that the verbal order of April 12th purported to substitute the non-residents for Girls Haven, that is, to change the “guardianship” of Margaret.

(2) The argument under Ground 1 also raises a question as to whether the non-residents made an appearance in Margaret’s dependency proceeding. There is nothing to show that the non-residents did not participate in the proceeding of April 12th; inferentially they did, since they took Margaret with them. We must assume on the record before us that the non-residents did whatever was necessary to make the proceeding of April 12th effectual.

(3) Ground 2 of the motion reads: “The Court of Civil Appeals erred in its decision that the petition by the natural father for restoration of custody, based on changed conditions, is not a new and independent proceeding.”

We think that the proceeding under review is independent so far as a right to appeal is involved; but we think that it is, nevertheless, a part of the unitary proceeding which we consider the dependency proceeding involving Margaret to be. If the petition of the Chamberses were granted in full it would terminate that dependency proceeding, that is, it would be the last part of, the final act done, in that proceeding. That parties and trial court considered themselves to be acting in the dependency proceeding is demonstrated by the fact that the Chambers’s petition was filed and that the judgment was rendered under the same docket number and style as were given the original petition for declaration of dependency and the order so declaring.

(4) Concerning Ground 3: — We still do not see how the plea in abatement, which attacked the trial court’s jurisdiction to hear and decide the proceeding under review, could be sustained and the merits of the Chambers’s petition then tried; but we have concluded that we erred in giving effect to that part of the trial court’s judgment which purported to sustain the plea in abatement. The judgment does not go further and dismiss it but, instead, rules on the merits and (see Conclusion of Law 2) does this pursuant to the agreement of the parties. We have concluded that we ought to treat this action on the merits as setting aside the ruling on the plea in abatement, as has been done where demurrers are sustained and the merits then tried. See Goldsmith v. Mitchell, Tex.Civ.App., 57 S.W.2d 188, at page 190 (Hn. 2).

(We adhere to the conclusions regarding the validity of the plea in abatement stated in our original opinion.

(5) Concerning Ground 4: — Since we have construed the verbal order of April 12th as intended to change the “guardianship” of Margaret and to substitute the nonresidents for Girls Haven, it is immaterial whether the evidence supports the trial court’s denial of the Chambers’s petition because the non-residents were not parties to the proceeding and under the circumstances before us they were indispensable parties. Although the plea in abatement is an attack on the trial court’s jurisdiction it also shows that indispensable parties have been omitted. We are now of the opinion, however, that there is some evidence to support the trial court’s denial of the petition. Mrs. Holleman gave some testimony about the means of the non-residents; she said that the man had a ranch, “a big milk dairy.” Her conversation with Margaret at S.F. 176 which occurred after Margaret had gone away with the non-residents proved Margaret’s mental attitude. A relationship between the non-residents and Margaret had existed for several months before the order of April 12th and it had been observed ; and the trial court could infer that the non-residents were good people, and that they and the child loved one another and could live together as parent and child. There was evidence in favor of the petitioners but there was also evidence which justified the trial court’s conclusion not to entrust them with the child.

(6) Some deletions and formal changes have been made in the original opinion, of which notice will be given concurrently with the filing of this opinion. Because of these modifications, the original opinion and this opinion will, together, he regarded as the complete opinion filed by the court on rehearing.

The motion for rehearing is overruled.