Goldsmith v. Salkey , 1937 Tex. App. LEXIS 1474 ( 1937 )

Appellant Ruth E. Goldsmith and appellee, J. Sydney Salkey, were married in St. Louis, Mo., on June 18, 1924, and established the family domicile there. On February 26, 1926, a daughter, Joan, was born to the Salkeys, and, now eleven years old, still lives to be the subject of this litigation.

On July 15, 1930, in a proper circuit court of the city of St. Louis, Mo., where the parties still resided, appellant, obtained a decree of divorce from appellee, with custody of the minor daughter for eleven months of the next year, and ten months of each ensuing year, until further orders of the court, the custody being awarded to appellee during the remainder of the time, as well as all Saturday afternoons, Sundays, and legal holidays. The parents were given the privilege of taking the child beyond the limits of the state of Missouri at such reasonable times as they might elect, until further orders of the court.

Both parents have since remarried, appellant Mrs. Salkey now being the wife of Nat Goldsmith, who has joined her in this litigation. The Goldsmiths reside and are permanently domiciled in San Antonio, Bexar county, Tex., and have resided there since their marriage, in October, 1932. In the meantime, about July 1, 1931, appellant Mrs. Salkey moved from St. Louis to Los Angeles, Cal., and resided there until she married Goldsmith and joined him in residence in San Antonio. Salkey still maintains his domicile in the state of Missouri.

In August, 1934, at the instance of Salkey, upon petition filed in June, 1934, the St. Louis circuit court, in which the prior proceedings were still pending, made an order modifying the original decree so as to award the custody of the minor to Salkey from September 1st to June 15th in each year, and to appellant for the remaining two and one-half months in each year. Mrs. Salkey voluntarily appeared and participated in that proceeding. That order was affirmed by the St. Louis Court of Appeals (Salkey v. Salkey, 80 S.W.2d 735), and writ of certiorari was denied by the Supreme Court of Missouri. The Goldsmiths retained the custody of the child in their San Antonio home during that litigation, but in pursuance of the modified order, when made final, they returned her to appellee in St. Louis. There she remained from September, 1935, to June, 1936, when Salkey returned her to the Goldsmiths in San Antonio, as required by the modified decree of the St. Louis Court.

While the minor was in the custody of the Goldsmiths during the ensuing two and one-half months, under the Missouri decree, Mrs. Goldsmith had herself appointed by the probate court of Bexar county as guardian of the person and estate of her daughter, and she and her husband, on August 5, 1936, while her daughter was residing with her during said period fixed by the existing decree of the Missouri court, instituted a proceeding in a district court of Bexar county, seeking an order giving them general custody of the child, alleging material changes in conditions affecting its welfare since the rendition of the modified decree of the Missouri court. Upon that pleading the district judge issued the writ of habeas corpus, as well as an injunction restraining Salkey from interfering with the existing custody of the child. These writs seem not to have been served upon Salkey. Citation was issued to Bexar county, only, for him in the main case, but was not served upon him, it being true, as alleged in appellant's petition, that he was at the time a resident of St. Louis. However, after the expiration of the time fixed in the Missouri decree for the return of the child to him (September 1st), Salkey came to Bexar county, and then filed in the same court an application for writ of habeas corpus for custody of the child and to enforce the terms of the Missouri decree. The two proceedings were consolidated. By a cross-action in the consolidated case the Goldsmiths alleged that since rendition of the modified decree of the Missouri court, in June, 1934, conditions affecting the welfare of the minor had changed in various material respects, and prayed that they be given custody of her in the future. The court below sustained Salkey's plea to the jurisdiction of said court, over the Goldsmiths' cross-action, upon the ground that the Missouri court, in the exercise of an admittedly proper jurisdiction, having previously adjudicated the question of the custody of the minor, had continuing and exclusive jurisdiction thereover, and that for the Texas court to undertake to adjudicate the question, even though under changed conditions affecting the welfare of the minor, would be to deny full faith and credit to the judgment of a court of competent jurisdiction of another state, in contravention of the full faith and credit clause of the Federal Constitution (article 4, § 1). Upon sustaining Salkey's said plea to the jurisdiction, the court below dismissed appellants' cross-action for the custody of the minor, and ordered them to deliver the minor to appellee. The Goldsmiths appealed.

The record shows that under the laws of the state of Missouri, as construed by the courts of that state, when the jurisdiction of the circuit court of Missouri was invoked by the parties, and assumed by the court, for the purpose of divorce and adjudication of the question of the custody of the child, that court would have continuing (and, apparently by necessary implication, exclusive) jurisdiction to pass upon future questions arising as to the custody of the child until she would become sui juris, notwithstanding its removal, by its custodian, to the latter's new domicile in another state. In re Krauthoff, 191 Mo. App. 149,177 S.W. 1112; In re Leete, 205 Mo. App. 225, 223 S.W. 962, 968. Both opinions are in evidence in this case, as the basis of the opinion of the sole witness upon this question.

The record also shows that this is not a suit to invoke only the police power of the state for the protection of the minor within its borders, but, on the contrary, one in which the question of the future custody of the child, for the time being, is to be adjudicated.

In accordance with a provision of the decree of divorce, Salkey provided for the maintenance of the minor up to the time of the filing of this suit.

The abstract question of whether the legal domicile of the minor, in the general sense, was or is in the state of Missouri, has not been determined by the majority, that question not being deemed necessary to this decision.

The record shows that at the time of the institution of this proceeding the minor was lawfully in the custody of the Goldsmiths, in their San Antonio domicile, by reason of her delivery to them by appellee in pursuance of the decree of the Missouri court.

We conclude that in their cross-action appellants alleged sufficient facts to authorize the court below, given jurisdiction, to give the custody of the minor to appellants, and this conclusion narrows this inquiry to the one question of whether by reason of appellants' domicile in Texas, and the minor's lawful, even if only temporary, residence with appellants in their domicile in said state, the courts of Texas acquired jurisdiction to adjudicate the question of the minor's custody, in view of such changed conditions, notwithstanding the original adjudication of the question of custody was properly made in the Missouri court. The merits of the controversy between the parties are not at all involved in this appeal, which concerns only the question of jurisdiction of the court below over that controversy.

The judgment of the Missouri court was undoubtedly res adjudicata of all questions concerning the right to the custody of the minor which were or could have been raised at the time of that adjudication, which was binding upon all parties, as in the case of any other character of judgment; and we will assume, for the purpose of this decision, that a decree of this character is entitled to full faith and credit in all jurisdictions, although the courts do not uniformly so hold.

It seems to be well settled, however, that the finality of such judgment obtains only so long as the circumstances attending its rendition remain the same; it does not operate to cut off those interested, including the parties to that judgment, from afterwards inquiring into conditions affecting the infant's welfare, and, by showing that such conditions have materially changed, procure an adjudication of the question of custody in the light of the changed conditions. Such proceeding should, or at least, may, be by new and independent suit, and that suit need not necessarily be brought in the forum of the original adjudication, but may be instituted in any court of competent general jurisdiction. Speer's Marital Rights, 3d Ed., §§ 636, 643; 9 R.C.L. p. 477, § 293; 15 Tex.Jur. p. 673 et seq., § 169 et seq.; annotations in 10 L.R.A., N.S., 690, 39 L.R.A., N.S., 990, L.R.A. 1915B, 154, 72 A.L.R. 441; Campbell v. Storer, 101 Tex. 82, 104 S.W. 1047; Wilson v. Elliott, 96 Tex. 472, 73 S.W. 946, 75 S.W. 368, 97 Am. St. Rep. 928; Ex parte Garcia, Tex.Civ.App. writ refused, 187 S.W. 410; Ex parte Boyd, Tex.Civ.App. 157 S.W. 254, 255; Cox v. Cox, Tex.Civ.App.214 S.W. 627; Keith v. Keith, Tex.Civ.App. 286 S.W. 534, 535; Black v. Black, Tex.Civ.App. 2 S.W.2d 331, 332; McLeod v. McLeod, Tex. Civ. App. 9 S.W.2d 141; Lowry v. Saxton, Tex.Civ.App. 23 S.W.2d 806; Kenner v. Kenner, 139 Tenn. 211, 201 S.W. 779, L.R.A. 1918E, 587. Appellee relies largely upon the case of Lanning v. Gregory, 100 Tex. 310,99 S.W. 542, 10 L.R.A., N.S., 690, 123 Am. St. Rep. 809. That case, however, has been so well distinguished and its effect so restricted by later decisions of our Supreme Court, as well as of our Courts of Civil Appeals, as to render it without value in determining the present appeal. Campbell v. Storer, supra; Lowry v. Saxton, supra.

If a decree awarding the custody of children in divorce cases is such as to entitle it to the protection of the full faith and credit provisions of the Federal Constitution (section 1, art. 4), then such protection extends as far as, but no further than, that protection given by the courts of this state to the judgments of our own courts. Tested by that rule, appellee can ask for no more consideration in our courts than he could ask if the decree he relies upon was of one of the courts of this state. A judgment of a court of this state awarding the custody of an infant is final and binding upon our own courts only so long as the conditions upon which it was rendered continue; when the conditions change, any other court of competent jurisdiction and venue in the state has jurisdiction of a new and independent suit to adjudicate the question of custody in the light of the changed conditions. Ex parte Garcia, supra; Keith v. Keith, supra; Black v. Black, supra; McLeod v. McLeod, supra.

Appellee relies upon the rule, sometimes prevailing, that the domicile of a child is that of its father, and says that as the father in this case was domiciled in the state of Missouri, so was that state the domicile of the minor, as a matter of law; wherefore, appellee asserts, as both the father and minor were domiciled in another state, the courts of this state can exercise no lawful jurisdiction over them in a proceeding of this nature, although the mother, who seeks to invoke that jurisdiction, is permanently domiciled here, and although the minor was legally, if only temporarily, residing with her when the suit was brought. We are not impressed with appellee's contention. Notwithstanding the general rule may be that an infant's status is fixed by that of its father, that rule breaks up, and the rights of the parents become equal, when they are separated and divorced, and, if the status of the child is controlled by the status of the parents, then it is controlled by the status of the parent with whom it resides for the time being. The exception may be narrowed to the position that Where by an existing decree the custody of the infant is divided between the two parents, and if the domicile of the parents really affects the status of the child, then its domicile is with that parent to whom its custody is for the time being awarded. The rights and status of the parents in a matter of this kind are of secondary importance, so far as that is concerned, the primary and chief concern of the courts being the welfare, or as sometimes stated, the best interests, of the infant. Ex parte Boyd, supra; Lowry v. Saxton, supra; Kenner v. Kenner, supra. These observations, growing out of a study of the decisions and of our statutes, particularly article 4118, R.S. 1925, lead to the conclusion that, because Bexar county is the established domicile of appellants, Mr. and Mrs. Goldsmith, because the infant over whose custody the parties are so bitterly fighting was for the time being legally residing with appellants in their home in Bexar county, and because appellee is a nonresident of the state, the courts of Bexar county were open to appellants as a forum for adjudicating the question of custody, in the light of present conditions materially affecting the infant's welfare. If it is made to appear that those conditions have so changed since the prior adjudication as to justify a change in the minor's custody, then the Bexar county courts have jurisdiction.

The judgment is reversed and the cause remanded for further proceedings in consonance with this opinion.

SLATTON, J., being disqualified, did not participate in this decision.