Lanning v. Gregory

99 S.W. 542, 100 Tex. 310, 1907 Tex. LEXIS 224

• Court: Texas Supreme Court
• Decided: January 30, 1907
• Docket: No. 1589.
• Status: Published

Opinion

BROWN, Associate Justice.

Certified questions from the Court of Civil Appeals of the Fifth Supreme Judicial District, as follows:

“We deem it advisable to present to the Supreme Court of the State of Texas for adjudication the following issues of law arising in the above entitled cause:

“Oh November 10, 1905, appellees caused to be filed in the District Court of Hunt County, Texas, and presented to the Hon. R. B. Porter, judge of said court, the following petition for habeas .corpus, to wit:

“The State of Texas, ]

County of Hopkins, j

“To Hon. R. B. Porter, Judge of the Eighth Judicial District:

“Your petitioner, Mrs. Alice Gregory, joined by her husband, R. E. Gregory, pro forma, respectfully shows that she is entitled to the custody of her minor son, J. W. Banning, Jr., who is four years of age, that she has been secretly, clandestinely, and forcibly deprived of the custody of her said minor son by J. W. Banning, Sr., who now has possession and custody of her said minor son, and his said custody of said child is illegal; that your petitioner has reasons to believe, and does verily believe, that the said J. W. Banning, Sr., with her said son, J. W. Banning, Jr., is now in Hunt County, Texas; that your petitioner fears that the said J. W. Banning, Sr., will remove the said child, J. W. Banning, Jr., without the State of Texas, and effectually conceal his whereabouts from .your petitioner. Wherefore your petitioner prays Your Honor for your most gracious writ of habeas corpus, directed to the sheriff or any constable of Hunt County, Texas, and directed to the said J. W. Banning, Sr., commanding them to produce the said J. W. Banning, Jr., before Your Honor, at such time and place as Your Honor shall designate, to the end that the said minor child may be restored to your petitioner.

“Alice Gregory.”

“Sworn to and subscribed before me this 10th dav of November, 1905.

“[seal.] “Jno. T. Ferguson, Notary Public,

“Hopkins County, Texas.”

“The judge’s fiat, endorsed on this petition, directed the clerk of the District Court of Hunt County, Texas, to issue the writ of habeas corpus as prayed for, returnable before him at the courthouse of said county instanter. The writ was issued on November 10, 1905, and executed by the sheriff of Hunt County on the 11th day of November, 1905, by taking charge of the person of J. W. Banning, Jr., and carrying him before the court, as directed. The respondent, J. W. Banning, Sr., on the same day, viz., November 11, 1905, filed his answer to the writ, denying the right of the relator, Mrs. Gregory, to the custody of the child, and, for the reasons alleged by him, asking that his custody be awarded to him. Both parties urged that a hearing of the matter be had as soon as possible, and in deference to their request the trial was begun that evening, November 11, 1905, and resulted in a judgment of the court awarding the custody of the child to the relator, Mrs. Gregory, until he arrived at the age of twelve years, after which time his custody was given to the respondent. From this judgment the respondent, J. W. Fanning, Sr., has appealed.

“Relator and respondent were both reared in Limestone County, Texas, and married six or seven years ago. The little boy, whose custody the mother seeks to recover in this proceeding, is the fruit of that marriage, born in the State of Texas, and at the time of the trial in the District Court was four or five years of age. Respondent and relator moved to Sulphur Springs, in Hopkins County, where they resided for several years. In the month of February, 1904, they separated, the respondent about two months later going to Monroe, Louisiana, where he has since resided. The relator instituted a suit for divorce against respondent in the District Court of Hopkins County, in which she also prayed for the custody of their said child. In the month of August, 1904, the divorce suit was tried, and the divorce granted, but, by agreement of the parties, the prayer of the petitioner for the care and custody of the child was waived, and the court made no adjudication thereon. At the time respondent had the child in the State of Louisiana, having placed him with his sister, Mrs. J. H. Baker, the wife of J. H. Baker, who resided at or near Delhi, Louisiana; but, accepting the evidence of relator, wc find that respondent agreed with relator that, if she would not have her right to the care and custody of the child adjudicated in the divorce suit, and would let him take the child and place him in the keeping of his sister, Mrs. Baker, she should still have control of the child, and might resume the actual custody of him whenever she desired to- do so and called for him, or that respondent, whenever requested by relator, would carry the child to her. Heither Mrs. Baker nor Mr. Baker, with whom the child was left, assumed any responsibility as to its education, support and maintenance.

“Relator was married to her present husband, R. E. Gregory, August 2, 1905, and at the time of the institution of this suit they resided and were domiciled in the City of Louisville, in the State of Kentucky. Respondent resided and was domiciled in Monroe, State of. Louisiana, and the little boy had been with Mrs. Baker, respondent’s sister, in the State of Louisiana, from the time it was placed in her keeping, as stated, until a short time before the institution of this suit, when Mrs. Baker brought him to Dallas, Texas, on a visit to some of her relatives. While Mrs. Baker was visiting with the child in Dallas Mrs. Gregory and her husband also visited that city, and, at the request of Mrs. Gregory, the child was left with her to remain through the night, with the understanding that Mrs. Baker should call the next day and get him. During the night, however, Mrs. Gregory and her husband left, carrying the child with them to Sulphur Springs, Texas, where they were overtaken by respondent, who had been summoned from Louisiana by Mrs. Baker, and the child by him taken from them. Thereupon Mrs. Gregory, joined by her husband, instituted this suit to recover the custody of said child, and the writ issued therein was executed, and the.child" taken from the custody of respondent while en route with him to Louisiana.

“Question 1. Hnder the facts stated, did the domicile of the child in question follow that of his father, and was such domicile thereby changed from Texas to Louisiana?

"Question 2. Did the judgment of the trial court in awarding the custody of the child to his mother until he became twelve years of age affect or change the status or domestic and social condition of the child ?

"Question 3. If the child’s domicile at the time of the institution of this suit was in Louisiana, did the District Court of Hunt County, Texas, have power or jurisdiction to hear and determine, as between relator and respondent, to whom the custody of the child should be awarded ?”

We answer the first question that the domicile of the infant followed that of the father, and upon the change of the father’s domicile from Texas to Louisiana the infant’s domicile was likewise changed. (14 Cyc., p. 843; 1 Wharton’s Confl. of Laws, sec. 41, and authorities cited; Trammell v. Trammell, 20 Texas, 407; Franks v. Hancock, 1 Unreported Cases, 554.)

The agreement made between the father and the mother of the child did not have the effect to emancipate the child from the control of the father. The infant’s domicile was, in law, still that of the father, notwithstanding the separation and the promises made by Lanning to return the child to the mother at her request.

To the second question we reply, the domestic status of the infant son Was that of a member of the family of his father, being in his fathers’ custody. The effect of the judgment of the District Court was, for a period of years, to take the son from the family and custody of the father and place him in the family and custody of the mother. This changed his domestic status for the time.

To the third question we answer, the child being in the lawful custody of the father, his domicile was in the State of Louisiana, and the District Court of Hunt County did not acquire jurisdiction of the child by reason of his temporary presence in the State of Texas. That court had no authority to adjudge a change of relation between the father and the child. (Brown on Jurisdiction, 290.)

It appears in this case that there was no unlawful restraint placed upon the child, the only question at issue being the relative right of the husband and wife to the custody of their minor child. Neither of the parties was a resident of the State of Texas, and the question at issue belonged to the jurisdiction of the domicile of the father. (Brown on Jurisdiction, secs. 79, 80; Taylor v. Jeter, 31 Ga., 203; Kline v. Kline, 57 Ia., 389.)