Dohrmann v. Chandler

435 S.W.2d 232, 1968 Tex. App. LEXIS 2133

• Court: Court of Appeals of Texas
• Decided: October 31, 1968
• Docket: 421
• Status: Published

Opinions

OPINION

NYE, Justice.

This is a child custody case. Fred M. Dohrmann brought habeas corpus proceedings to obtain the custody of his three year old daughter Malinda Lee Dohrmann from her mother. He alleged that he was entitled to custody under and by virtue of a judgment in North Dakota. The mother, Lesly Lee Dohrmann Chandler, answered and by cross-action sought judgment awarding the custody of the minor child to her. The father filed pleas to the jurisdiction of the court to entertain the cross-action, special exceptions, and other appropriate pleas to dismiss the mother’s action for alternative relief.

The father and mother were divorced and the custody of Malinda was awarded to the father in a decree rendered by a North Dakota court on September 18, 1967. This habeas corpus action was commenced on November 15, 1967, concluded by judgment and order based upon a jury verdict which found that a material change of conditions had occurred and that the best interests of the child required a change of custody to its mother. Basically, the father contends that there is no evidence or insufficient evidence of a material change in conditions and no evidence or insufficient evidence to warrant a change of custody; therefore, the trial court was without jurisdiction to enter any order other than commanding that immediate possession of the minor child be delivered unto the possession and custody of the father.

The record shows that the father was a farmer and rancher and that he and the mother of the minor child lived on his place in North Dakota during their marriage. After he filed his petition for divorce the North Dakota court ordered that the temporary custody of the minor girl be placed with her mother, the appellee. She then moved to Texas, taking Malinda and two other children of hers who were not issue of that marriage. Almost a year later the North Dakota court entered its judgment. The court awarded the care, custody and control of the minor child to the father subject to reasonable visiting rights which were granted to the mother. Armed with this decree the father came to Matagorda County, Texas, to obtain the minor child. The mother refused to give up the child, whereupon the father filed his application for writ of habeas corpus.

One of the father’s basic arguments is that the trial court erred in overruling his plea in abatement and in exercising its jurisdiction for the purpose of changing the custody of the minor child. His contention is that the trial court does not have jurisdiction over the cross-action unless this case proves to be an “exceptional case” ¹ which he argues is a prerequisite to the exercise of jurisdiction by the Texas courts if they are to make an independent determination of the rights to the custody of this minor child. We have no quarrel with this argument and contention.

The Texas courts have traditionally given full faith and credit to a child custody decree of a sister state and will not order a change of custody in the absence of evidence that a subsequent and material change of conditions has taken place. Goldsmith v. Salkey, 131 Tex. 139, 112 S.W.2d 165, 116 A.L.R. 1293 (1938); Short v. Short, 163 Tex. 287, 354 S.W.2d 933 (Tex.Sup.1962). The judgment decreeing the custody at the time it is entered, is res judicata as to the questions concerning the best interests of the child at that time. Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787 (1955). However, proof of a material change of conditions since the decree by the sister state, will support a change of custody if the same is for the best interests of the child. Short v. Short, supra. For the non-custodial parent to prevail in a suit which involves a change of custody, that parent has the burden of proof to show that such a material change of conditions has taken place since the entry of the first decree, in order to escape the bar of res judicata. If there has been no such change of conditions since the entry of the decree in North Dakota, the Texas court would be precluded from exercising jurisdiction by the full faith and credit clause of the Constitution of the United States. Since a material change of conditions is essential to a change of custody, the procedure would be that once the trial court had obtained jurisdiction of the persons it would then be authorized to try the facts to determine whether a material change of conditions affecting the best interests of the child is shown. If such change of conditions is shown and if they make out the exceptional case, the trial court in its discretion can then make a new and independent determination, of child custody rights. Bukovich v. Bukovich, supra. Such determination once made, will not be disturbed on appeal in the absence of abuse of discretion. Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787; Mumma v. Aguirre, 364 S.W.2d 220 (Tex.Sup.1963), and Bukovich v. Bukovich, supra.

Appellant has invoked the potential jurisdiction of the Texas district court by bringing the habeas corpus proceedings in Matagorda County with personal service upon the natural mother, appellee. Her answer and cross-action for custody and his pleadings in answer to her cross-action, properly brings the parties before the court and neither party can be heard to complain of the trial court taking jurisdiction. Knollhoff v. Norris, 152 Tex. 231, 256 S.W.2d 79 (1953).

The controlling consideration is the welfare of the child. The changes of conditions which affect the welfare of the child are the determining factors. There is nothing in the evidence or in the North Dakota decree which sheds any light upon the actual conditions that existed prior to the entry of the North Dakota decree. The trial court refused to permit the parties to go behind the decree to determine the state of conditions that existed at the time of the decree so that an accurate comparison could be made of the conditions that existed at the time of this trial. There was no proof of the substantive North Dakota law nor was the court requested to take judicial notice of that law as permitted there by Rule 184a, Texas Rules of Civil Procedure. We therefore presume that the law relative to the granting of the original custody to one of the competing parents in our sister state is the same as that of Texas. Ogletree v. Crates, 363 S.W.2d 431 (Tex.Sup.1963). The record shows that this small girl, less than three years of age, was taken from the temporary custody of its natural mother and given to its father, the extraordinary conditions which had to exist at the time the judgment of the North Dakota court was entered, must have been such that the best interests of the minor child were best served by placing the custody of the little girl in the hands of its natural father and limiting the natural mother to only reasonable visitation privileges.

The present record before us shows an obviously different situation existing since the divorce. Appellee has remarried and has established a home. First of all, we are not unmindful of the cases that hold that this in itself does not amount to such a material change of conditions that would warrant the trial court to exercise its jurisdiction in making a change of custody. However, the remarriage and the new home, along with other factors affecting this child’s welfare, can amount to such a material change.

The appellee and her new husband have purchased some twenty acres and built a new three bedroom home where she and her husband, her two small boys, ages 4 and 6, and Malinda, the minor child, all reside in a family relationship. No such family relationship existed at the time of the North Dakota decree. She is gainfully occupied full time as a housewife and mother and her husband is gainfully employed in a nearby plant making over $1,000.00 per month. The evidence is that the appellee and her husband are partners in the raising and breeding of thoroughbred horses. This business is in addition to the husband’s full time employment. They have built a barn and fences and together they work in this enterprise. Appellee’s husband testified that this is his first marriage; that he is very much in love with his wife, Malinda, and the two hoys. He treats them as his children and as such he has been exercising parental authority over the children. Appellee testified that Malinda is very happy. She loves her mother and considers the boys as her brothers, with whom she plays in the family home. The evidence showed that the Texas trial judge placed Malinda in a neutral home pending the outcome of the habeas corpus proceedings. This arrangement was short lived, because Malinda became extremely emotionally upset, cried and became hysterical to the point where she could not sleep, wanting to return home to her mother. Upon being taken back to her mother the child became adjusted. On the other hand Malinda did not know or recognize her natural father when he came to Texas to get her. The evidence was that he had made no attempt in over a year to visit the child during the time the child was with her mother, although the mother had evidenced a willingness for the father to visit with the child. The father made no attempt to visit the child during the interval between the time the North Dakota decree was entered and the time the habeas corpus suit was filed, or even during the several weeks the present hearing was continued.

The father did testify that he loved the child and wanted custody of her. On cross-examination he testified that if he was awarded the child he would take her with him to live with his mother and father, the paternal grandparents, on their farm. In the meantime he would try to find a suitable spouse with whom he might marry and make a new home at his farm. The evidence is that appellee was a good mother and had kept her three children, Malinda and the two boys, with her constantly. The mother testified that her present husband has taken over the responsibility of a father; that he loves the children and his wife very much. All three of the children get along very well together. The mother cooks for them, feeds them, cleans them and looks after their every need and care. The evidence was that the minor child was very much attached to its new found family and the relationship created thereby. There was no evidence that the mother was unfit.

The jury was asked to find from a preponderance of the evidence whether since the former judgment which granted custody of the minor child Malinda to appellant, “ * * * there has occurred such a material change of condition that the best interests of- said minor child requires a change of custody?” The court instructed the jury in this regard that not every change in condition justifies the modification of a former decree of divorce awarding the custody of a minor child. Such changed conditions must be such as affects the welfare and best interests of the child and be of such nature that to leave the custody of the child as previously adjudicated would be injurious to the child and requires that the custody be changed. To this issue, the jury found that such a material change of condition had occurred. The jury further found that the best interests and welfare of the minor child would be best served by awarding her care, custody and control to her natural mother.

Vernon’s Ann.Civ.St. article 4639a, as amended, says in part that:

“ * * * In any hearing held in this State concerning the custody of a child, whether pursuant to a divorce cause or not, any party to the hearing may, upon assumption of jury costs, demand a jury to determine custody of the child, and the judgment of the court must conform to that determination. * * * ” (Effective 1961).

As a result of this jury verdict the trial judge entered judgment changing the custody of Malinda from her father to her mother.

Appellant’s points of error of no evidence, insufficient evidence and contrary to the great weight and preponderance of the evidence requires us to examine the entire statement of facts and evaluate the same in accordance with the rules announced by the Supreme Court in In re: King’s Estate, 244 S.W.2d 660. We have set forth a summary of all the evidence. Under the no evidence rule, we are obligated to consider only such evidence favorable to the verdict of the jury. We are, therefore, convinced that there was such evidence of a material change of conditions affecting Malinda’s welfare that required the trial court to submit the case to the jury. Article 4639a and In re: King’s Estate, supra. During the short time that the child’s living arrangements were confined to the new home of Malinda’s mother and her husband, Malinda’s affection became a part of her environment. The mother-daughter arrangement in the new family atmosphere is a positive improvement. Malinda being of tender years now has the advantage of the companionship of her brothers in a family home. We believe that it would be detrimental to the child’s welfare to destroy the present arrangements. It would not be conducive to the child’s welfare, but highly detrimental, for the child to leave these conditions and go with her father to North Dakota to live with his mother and father on a farm some distance from the father’s home and farm.

There is no definite guideline as to what evidence constitutes a material change of circumstances or conditions that affect the welfare of a small child. However, we believe that the same must be decided in each case according to the circumstances as they arise. We know that the jury had an opportunity to observe and evaluate the personalities of the contending claimants, to weigh the credibility of their testimony, and to assess the physical, mental, moral and emotional needs of the child. The jury’s verdict binding by statute the trial court’s judgment also binds our hands when supported by evidence. The trial court who also observed all of the evidence, refused to grant a new trial, and as such did not abuse its discretion. Mumma v. Aguirre, supra; Bukovich v. Bukovich, supra. We have examined all of the evidence in the light of the rules announced by our Supreme Court and are convinced that the record here presents ample evidence to support the verdict of the jury and the judgment of the court based thereon. See Welch v. Welch, 369 S.W.2d 434 (Tex.Civ.App.-Dallas 1963); and Birdwell v. Ashcraft, 352 S.W.2d 463 (Tex.Civ.App.-Dallas 1961); Bridges v. Davis, 303 S.W.2d 870 (Tex.Civ.App.-Galveston 1957); De Gaish v. Marriott, 345 S.W.2d 585 (Tex.Civ.App.-San Antonio 1961). Appellant’s points are overruled.

Judgment of the trial court is affirmed.

1 . Bukovich v. Bukovich, 399 S.W.2d 528 (Tex.Sup.1966).