Cusack v. Cusack , 1937 Tex. App. LEXIS 768 ( 1937 )

Appellant, Charles Cusack, filed in the district court of De Witt county, Tex., his petition for a writ of habeas corpus against Ann Cusack and Thornton Hamilton and wife for custody of his minor children.

Appellant alleged, in substance: That Ann Cusack sued him in the superior court of Los Angeles, Cal., for divorce and custody of the children of their marriage; that on October 19, 1934, the California court denied the divorce and divided the custody of the children between Mr. and Mrs. Cusack; that appellant filed an application in the California court, alleging that Ann Cusack had neglected the children since the order of October 19, 1934, and praying that she be enjoined from removing them from the court's jurisdiction and that proper order be made for their custody; that in answer to said application Ann Cusack appeared and denied under oath that she intended to remove the children permanently from the court's jurisdiction and prayed for permission to take the children to Texas for the Christmas holidays; that the California court set the hearing on the merits for January, 1935, and enjoined both Ann Cusack and appellant from taking the children out of Los Angeles county; that on December 18, 1934, the date of the injunction, Ann Cusack left California and brought the children to Texas; that on December 19, 1934, the California court set aside all orders dividing the custody of the children and awarded their custody to Mr. Cusack, and on January 17, 1935, entered final judgment awarding custody of the children to Mr. Cusack; that the decrees of the California court were valid, and he therefore invoked the full faith and credit clause of the Constitution of the United States (article 4, § 1).

Appellant further alleged that the domicile of himself and his children was in California, and that the children were brought to Texas illegally and against his consent, and prayed that possession of the children be restored to him. By supplemental petition he alleged his fitness and appellee's unfitness to have custody of his children, and prayed that he be awarded their custody.

Mr. and Mrs. Hamilton, who had previously filed suit in De Witt county, Tex., for custody of said children, pleaded their prior suit in abatement, filed special exceptions, and alleged their fitness and Mr. Cusack's unfitness to have said children. Mrs. Cusack's pleadings were in substance the same as those of Mr. and Mrs. Hamilton.

On February 28, 1935, this cause came on for hearing, and the trial court invited argument as to the jurisdiction of the court, and at the conclusion of the argument dismissed the petition. Appellant took exceptions to the court's ruling and offered evidence to prove the matters alleged in his petition, which the trial court refused to consider.

The trial court erred in dismissing the petition and in excluding the proof offered.

The evidence offered by appellant as to the domicile of the children was admissible. If the children's domicile at the time of the institution of this suit was in California, the district court of De Witt county, Tex., should not hear evidence and determine to whom the custody of the children should be awarded, but should order them delivered to their father. Lanning v. Gregory, 100 Tex. 310, 99 S.W. 542, 10 L.R.A.(N.S.) 690, 123 Am. St. Rep. 809.

The certified copies of the proceedings of the California court were admissible. If the judgment of that court was conclusive of the rights of the parties in California at the date of its entry, it must be accorded the same effect in Texas, under article 4, § 1, of the Constitution of the United States. Wilson v. Elliott, 96 Tex. 472, 73 S.W. 946,75 S.W. 368, 97 Am. St. Rep. 928.

If the trial court should find that the children are domiciled in Texas, then it shall proceed to hear the evidence and pass only on the rights of the parties to the custody of the children by reason of the change in conditions affecting the minors' welfare since the last valid judgment of the California court.

This court cannot render judgment for appellant on evidence excluded by the trial court, though it might have been justified in so doing if the evidence excluded had been admitted. Abbott Oil Co. v. San Antonio Brewing Association, 104 Tex. 574, 141 S.W. 517.