Wilson v. Elliott

OPINION OF COURT OF CIVIL APPEALS. This is a habeas corpus proceeding by appellant, the father of an 11-year-old daughter, to obtain the custody of the child held by appellant, its mother.

On May 4, 1899, the parties were divorced by decree of the District Court of New Mexico. In that, and in proceedings supplemental thereto, that court entered decrees, the substance of which as finally made was that the father should have the custody of the child, with the provision "that the child should be permitted to visit its mother once a year for the period of one month during the month of July, that said visit shall be made within the Territory of New Mexico, and the said child shall not be removed from said Territory by her mother." The said court had jurisdiction of the parties including the child.

The mother remarried in New Mexico, and afterwards she and her husband removed to El Paso, Texas, she bringing with her the child, in disregard of said decree.

At the trial of the present case the parties introduced testimony concerning the character, conduct and fitness of each other, prior to and since the said decree, but the district judge, as shown by conclusions on file, held that the territorial decree was binding on him under the Constitution and laws of the United States; and as is evidenced by the certificate to the statement of facts, the court refused to consider as evidence on the trial any evidence of any fact that occurred prior to the decree of divorce in New Mexico excepting the proceeding in said New Mexico court as set out and shown in exhibit A hereto attached." This exhibit consists merely of the pleadings and decree.

It is made quite clear that the judge treated the decree as res adjudicata absolutely, and as entitling the father to possession of the child, and that all he could consider was evidence of changed conditions of the parties since the said decree, bearing on their fitness and the best interests of the child. The judge expresses his conclusion in these words: "I find that since the decree or the modified or amplified decree as to the custody of the child, there has been no material change in the status or condition of said parties as to their fitness or qualification as proper custodians of said child." In other words, the New Mexico decree was held to determine all facts existing prior to its date in favor of the father's right to its custody, and only such facts could now be considered to disturb that adjudicated right, which may have come into existence since that time.

We have examined all the assignments and there is no error that we can discover, unless it be the effect given to said decree. It is insisted by appellant that article 4 of the Constitution of the United States, requiring full faith and credit to be given in each State to the public acts, records and judicial proceedings of every other State, and the acts of Congress thereunder, have no application to a decree of this kind. We come to the conclusion that the law is with this contention. Were the subject matter of the decree property, or a matter in which the parents were solely concerned, the decree would by reason of said article be entitled to the effect which the trial court has given it. But neither of these propositions is true. The child is not in any sense property of the parents. It is also equally well established that the government has an interest in the welfare and consequently in the question of the custody and environments of the child, and to this the rights of the parents are entirely subordinate. Legate v. Legate, 87 Tex. 252 [87 Tex. 252]; State v. Michel, 54 Law. Rep. Ann., 927. This interest and concern of the State is exemplified in the exercise of the power in any such case where the circumstances render it appropriate, by taking the child from both of them and placing it in custody of a third person. See cases above cited, also In re Bort, 25 Kan.

In Jordan v. Jordan, 4 Texas Civ. App. 559[4 Tex. Civ. App. 559], it was held that when the custody of the child was awarded to the father in a divorce proceeding, in this State, the decree was res adjudicata as between the parties of their respective claims to the possession of the child as matters stood at that date.

Whatever force such a decree would have as a conclusive adjudication in this State it would derive from the fact that our statute in terms authorizes, in a divorce case, the giving of the custody to one parent as against the other; and from the further fact that the decree being by a court of this State, one of the State's own agencies, it might and ought to be presumed that the interest and policy of the State were regarded in deciding that the father was a proper custodian as against the mother, in view of the welfare of the child. These considerations, it appears to us, have no reference to a decree of this character rendered in another State.

We see no reason why our courts should be hampered in a matter of this kind by a previous decision in another State or Territory, and unless such a judgment falls strictly within the constitutional provision referred to, we would not be required to give effect to it.

The child in controversy is found within this State in the possession of its mother, who resides here. This is not a question of extradition. The citizenship of the parties or of the child is immaterial. Our courts are appealed to in the usual way by habeas corpus to interpose in respect to the custody of the child, and the matter is to be determined in accordance with the rules and policy of this State in such matters. The State of Texas is constructively a party to this proceeding and to all proceedings of like character within its jurisdiction. Here we find at once a difference in parties, for the State of Texas had no part in the proceeding in New Mexico. The provision referred to seems to us to have no application except where the subject is property, or some matter in which only the parties to the decree are the ones affected, and the very fact that the State of Texas, a third party, is now concerned in the subject matter, takes the decree out of the rule. In re Bort, 25 Kan.; Avery v. Avery, 5 Pac. Rep., 422; People v. Allen, 105 N.Y. 628.

We are therefore of opinion that the court erred in giving effect to the New Mexico decrees, and in refusing to consider much of the evidence which, so far as we know, might have led to a different judgment.

Reversed and remanded.

Delivered and filed January 21, 1903.