Greene v. Schuble

654 S.W.2d 436

Opinions

ROBERTSON, Justice.

Gloria M. Greene, the mother of Jeffery Alan and Sebrina Annette Greene, seeks a writ of mandamus directing the trial judge, the Honorable Henry Schuble, to vacate his prior order and issue a writ of habeas corpus directing Dorothy I. Greene, the widow of Gloria’s former spouse, Cecil T. Greene, to surrender the children to her. We hold that the relator is entitled to issuance of a writ of habeas corpus and conditionally grant the writ of mandamus.

Cecil and Gloria Greene were divorced in 1978. Cecil was appointed managing conservator of the children and Gloria was appointed possessory conservator.¹ Cecil died on July 16, 1982. Dorothy, his widow and the children’s stepmother, has retained possession of the children against the wishes of Gloria since Cecil’s death. She was appointed guardian of the minors’ estates by the County Court of Montgomery County.

On January 24, 1983, Gloria filed a petition for writ of habeas corpus in the 245th District Court of Harris County, which is the court of continuing jurisdiction by virtue of the 1978 divorce decree. A hearing on the writ was held on February 2, 1983. On February 7, 1983, Dorothy filed, in the same court, a motion for termination of Gloria’s parental rights and appointment of Dorothy as managing conservator of the children. Judge Schuble denied Gloria’s petition for writ of habeas corpus on February 9,1983. No action on Dorothy’s motion appears to have occurred.

Gloria asserts a mandatory right to a writ of habeas corpus under section 14.10(e) of the Family Code, since, as parent of the children, she has a superior right to possession by virtue of section 12.04. Tex.Fam. Code Ann. § 12.04(1) and 14.10(e)². Under section 14.10(e), if the right to possession is not governed by a court order, the court shall compel return of the child to the relator in a habeas corpus proceeding if, and only if, it finds that the relator has a superior right to possession of the child by virtue of the rights, privileges, duties and powers of a parent as set forth in section 12.04. Thus, in order for subsection (e) to be applicable in this case, that portion of the 1978 decree of divorce establishing the managing conservatorship must no longer be in force or in effect. Both parties contend that because of the managing conservator’s death the divorce decree no longer constitutes a valid court order governing possession of the children. We agree.

In the absence of specific provisions to the contrary in an order estáblish- ing conservatorship, the death of the managing conservator ends the conservatorship order and it no longer constitutes a valid subsisting court order for purposes of section 14.10. Subsection (e) therefore applies. We adhere to the rule we stated prior to the adoption of the Family Code that in the event of the death of the managing conservator, the surviving parent has a right to possession of the children, and a court may enforce this right by issuance of a writ of habeas corpus. Knollhoff v. Norris, 152 Tex. 231, 256 S.W.2d 79 (1953); see Walsh v. Walsh, 562 S.W.2d 501, 502 (Tex.Civ.App.—San Antonio 1978, no writ).

Under our holding Gloria is entitled to issuance of a writ of habeas corpus as a matter of right. The issuance of the writ should be automatic, immediate, and ministerial. Armstrong v. Reiter, 628 S.W.2d 439, 440 (Tex.1982). Even a court of continuing jurisdiction is bound by the mandatory language of section 14.10. It must grant a writ of habeas corpus for the delivery of possession of a child to the person with the superior right of possession without any delay for separate or simultaneous consideration of a pending motion for modification of the prior court order, unless an exception under section 14.10 is shown to exist. Strobel v. Thurman, 565 S.W.2d 238, 240 (Daniel, J., concurring); Trader v. Bear, 565 S.W.2d 233, 237 (Daniel, J., concurring).

Our opinion does not reflect consideration of the merits of the other proceedings pending in the court below. Habeas corpus proceedings in child custody cases are governed exclusively by section 14.10, the provisions of which are mandatory. The office of habeas corpus is limited to restoring possession of the children to the person legally entitled to present possession, and may not be used to relitigate custody. Whatley v. Bacon, 649 S.W.2d 297, 300 (Tex.1983).

It is assumed that Judge Schuble will vacate his order denying Gloria M. Greene’s application for habeas corpus and that he will grant the requested writ. A writ of mandamus will issue only if he declines to do so.

Dissenting opinion by RAY, J., in which SPEARS and KILGARLIN, JJ., join.

Footnotes

1

. The status of Gloria as adoptive mother of the minors has been placed in issue. The question is irrelevant to application of section 14.10 of the Texas Family Code inasmuch as her parenthood and, more importantly, conserva-torship was decided in the divorce action.

2

. Unless otherwise indicated, all references are to the Texas Family Code.