This is a habeas corpus proceeding, instituted by Nannie Brittain Oldham, appellant, against her former husband, John C. Oldham, appellee, for the custody of Richard Grey Oldham, their son, about five and a half years of age; and from an adverse judgment, she prosecutes this appeal.
Appellant alleged, in substance, that she and appellee were divorced by the Circuit Court in and for Lee County, the State of Florida, on December 7, 1937, and that, as a part of the decree, the court disposed of the custody of the three children of the parties, all small boys, according to the terms of an agreement by the parents, as follows: "Nannie Brittain Oldham shall have the custody of said children during the following periods, to-wit: John Brittain Oldham and Richard Grey Oldham for the periods of Sept. 1 through May 31, or until the week before the beginning and until the week after the ending of each school term. During the remainder of said year other than during the school term and for the week before and the week following the same, John C. Oldham shall have the custody of said two children. The custody of Thomas Henry Oldham shall remain with Nannie Brittain Oldham until said child becomes six years of age. Then and thereafter the custody of Thomas Henry Oldham shall be divided between the parties hereto in the same manner and for the same term as above provided for John Brittain Oldham and Richard Grey Oldham.", alleging that the agreement was approved and incorporated into and became a part of the decree, in the following language: "And the court hereby approves, adopts and incorporates this agreement as a part of this decree, and retains jurisdiction of this cause and of the parties hereto in so far as relates to enforcement of said agreement and for the purpose of making such other and further orders concerning the custody and support of said children as the best interest and welfare of said children may require." A copy of the decree was attached to and became a part of appellant's petition, alleging that, since about May 31, 1938, appellee had held custody of the minor, Richard Grey Oldham, but failed to return him to the custody of appellant, as required by the terms of the decree, and still fails and refuses so to do.
Appellee's answer contained general and special exceptions, a general denial and special pleas, to the effect that, on September 10, 1938, appellee and appellant entered into a written agreement, under the terms of which she voluntarily relinquished to appellee custody of said minor, and that, in pursuance of such agreement, appellee's custody has since continued. And by way of further answer and cross action, referring to the divorce decree, copy of which was attached to and formed a part of appellee's petition, appellant alleged that, since December 7, 1937, the date of the decree disposing of the custody of the minor, conditions had materially changed (alleging specifically certain pertinent facts), justifying and requiring the court, in the exercise of its equity powers and judicial discretion, for the best interest of the minor, to grant appellee the exclusive custody and control of the minor; also alleged that, under the agreement of September 10, 1938, heretofore mentioned, appellant voluntarily relinquished her right to the custody of Richard Grey — praying that she take nothing by her action, that she be required "to specifically perform her agreement of Sept. 10, 1938", to the end that, appellee be awarded the exclusive custody and control of the minor, and for general relief.
At the conclusion of the evidence, the court announced its decision of the issues of fact and law in the following language: "Whereupon the case came on for trial upon its merits, and no jury having been demanded, all issues of facts, as well as of law, were submitted to the court for its determination, and the court after hearing the pleadings, the evidence and argument of counsel, is of the opinion that defendant's motion for judgment at the close of plaintiff's testimony, should be sustained, and that the plaintiff should take nothing and that the defendant should recover on his cross action." In a colloquy between counsel for appellant and the court, it was indicated that the action of the court was predicated on the agreement of September 10, 1938, the court saying: "* * my opinion is that the agreement takes precedence over the foreign judgment. Up to the date of the agreement, I will give the judgment full faith and credit, but after Mr. Ford (attorney for appellee) introduces the agreement you will have to do something about it".
At the outset, we are confronted with a cross assignment of error urged by appellee, based upon the action of the court in admitting in evidence, over his objection, a certified copy of the divorce decree rendered by the Circuit Court of Lee County, Florida; the ground of the objection being that, the attestation of the clerk to the copy of the judgment was not certified to by the presiding magistrate as being in due form. Following the attestation, signed by Esther Draughon as clerk, the presiding magistrate, Honorable George W. Whitehurst, certified "that Esther Draughon, is the duly elected and qualified clerk of the Circuit Court, in and for Lee County" etc., but failed to certify that her attestation was in due form.
We do not deem it necessary to decide whether or not the authentication of the judgment was in substantial compliance with the Act of Congress, because we think it may be conceded that it was not, but that was only one method of proving a judgment in the courts of a sister state — proof may have been made by a witness, as at common law, and, furthermore, we know no reason why the judgment of another state may not be admitted as a fact, as we think was done in the instant case.
As before stated, appellant predicated her right to have the custody of the minor restored to her, exclusively on the provisions of the Florida judgment, a copy of which was attached to and formed a part of her petition, the material portions of which have heretofore been set out. In his cross action, seeking permanent custody and control of the minor, we think that, to all intents and purposes, appellee admitted the existence of the judgment; among other things, he alleged that "since the judgment of divorce and the decree providing for the custody of the said Richard Grey Oldham on Dec. 7, 1937, conditions have so changed as to require the court in the exercise of its judicial discretion to grant defendant herein the exclusive control and custody of said Richard Grey Oldham. In this respect, defendant (appellee here) would show to the court that the judgment of divorce and decree providing for the custody of said Richard Grey Oldham was rendered on Dec. 7, 1937. That pursuant to the terms of said decree defendant herein was entitled to the custody of Richard Grey Oldham and John Brittain Oldham, beginning one week after the close of the spring term of school and continuing until one week before the opening of the fall term. That pursuant to such decree plaintiff (appellant here) surrendered the custody of said Richard Grey Oldham and John Brittain Oldham to defendant (appellee) herein on June 4, 1938 which was followed by allegations in regard to changed conditions since the original decree was rendered; also alleged that, on September 10, 1938, "plaintiff (appellant) entered into a written contract with defendant herein (appellee), by which she voluntarily relinquished her right to the custody of the said Richard Grey Oldham", by reason of which, appellee sought to have the original decree modified, and that he be given permanent custody of the minor.
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This is a habeas corpus proceeding, instituted by Nannie Brittain Oldham, appellant, against her former husband, John C. Oldham, appellee, for the custody of Richard Grey Oldham, their son, about five and a half years of age; and from an adverse judgment, she prosecutes this appeal.
Appellant alleged, in substance, that she and appellee were divorced by the Circuit Court in and for Lee County, the State of Florida, on December 7, 1937, and that, as a part of the decree, the court disposed of the custody of the three children of the parties, all small boys, according to the terms of an agreement by the parents, as follows: "Nannie Brittain Oldham shall have the custody of said children during the following periods, to-wit: John Brittain Oldham and Richard Grey Oldham for the periods of Sept. 1 through May 31, or until the week before the beginning and until the week after the ending of each school term. During the remainder of said year other than during the school term and for the week before and the week following the same, John C. Oldham shall have the custody of said two children. The custody of Thomas Henry Oldham shall remain with Nannie Brittain Oldham until said child becomes six years of age. Then and thereafter the custody of Thomas Henry Oldham shall be divided between the parties hereto in the same manner and for the same term as above provided for John Brittain Oldham and Richard Grey Oldham.", alleging that the agreement was approved and incorporated into and became a part of the decree, in the following language: "And the court hereby approves, adopts and incorporates this agreement as a part of this decree, and retains jurisdiction of this cause and of the parties hereto in so far as relates to enforcement of said agreement and for the purpose of making such other and further orders concerning the custody and support of said children as the best interest and welfare of said children may require." A copy of the decree was attached to and became a part of appellant's petition, alleging that, since about May 31, 1938, appellee had held custody of the minor, Richard Grey Oldham, but failed to return him to the custody of appellant, as required by the terms of the decree, and still fails and refuses so to do.
Appellee's answer contained general and special exceptions, a general denial and special pleas, to the effect that, on September 10, 1938, appellee and appellant entered into a written agreement, under the terms of which she voluntarily relinquished to appellee custody of said minor, and that, in pursuance of such agreement, appellee's custody has since continued. And by way of further answer and cross action, referring to the divorce decree, copy of which was attached to and formed a part of appellee's petition, appellant alleged that, since December 7, 1937, the date of the decree disposing of the custody of the minor, conditions had materially changed (alleging specifically certain pertinent facts), justifying and requiring the court, in the exercise of its equity powers and judicial discretion, for the best interest of the minor, to grant appellee the exclusive custody and control of the minor; also alleged that, under the agreement of September 10, 1938, heretofore mentioned, appellant voluntarily relinquished her right to the custody of Richard Grey — praying that she take nothing by her action, that she be required "to specifically perform her agreement of Sept. 10, 1938", to the end that, appellee be awarded the exclusive custody and control of the minor, and for general relief.
At the conclusion of the evidence, the court announced its decision of the issues of fact and law in the following language: "Whereupon the case came on for trial upon its merits, and no jury having been demanded, all issues of facts, as well as of law, were submitted to the court for its determination, and the court after hearing the pleadings, the evidence and argument of counsel, is of the opinion that defendant's motion for judgment at the close of plaintiff's testimony, should be sustained, and that the plaintiff should take nothing and that the defendant should recover on his cross action." In a colloquy between counsel for appellant and the court, it was indicated that the action of the court was predicated on the agreement of September 10, 1938, the court saying: "* * my opinion is that the agreement takes precedence over the foreign judgment. Up to the date of the agreement, I will give the judgment full faith and credit, but after Mr. Ford (attorney for appellee) introduces the agreement you will have to do something about it".
At the outset, we are confronted with a cross assignment of error urged by appellee, based upon the action of the court in admitting in evidence, over his objection, a certified copy of the divorce decree rendered by the Circuit Court of Lee County, Florida; the ground of the objection being that, the attestation of the clerk to the copy of the judgment was not certified to by the presiding magistrate as being in due form. Following the attestation, signed by Esther Draughon as clerk, the presiding magistrate, Honorable George W. Whitehurst, certified "that Esther Draughon, is the duly elected and qualified clerk of the Circuit Court, in and for Lee County" etc., but failed to certify that her attestation was in due form.
We do not deem it necessary to decide whether or not the authentication of the judgment was in substantial compliance with the Act of Congress, because we think it may be conceded that it was not, but that was only one method of proving a judgment in the courts of a sister state — proof may have been made by a witness, as at common law, and, furthermore, we know no reason why the judgment of another state may not be admitted as a fact, as we think was done in the instant case.
As before stated, appellant predicated her right to have the custody of the minor restored to her, exclusively on the provisions of the Florida judgment, a copy of which was attached to and formed a part of her petition, the material portions of which have heretofore been set out. In his cross action, seeking permanent custody and control of the minor, we think that, to all intents and purposes, appellee admitted the existence of the judgment; among other things, he alleged that "since the judgment of divorce and the decree providing for the custody of the said Richard Grey Oldham on Dec. 7, 1937, conditions have so changed as to require the court in the exercise of its judicial discretion to grant defendant herein the exclusive control and custody of said Richard Grey Oldham. In this respect, defendant (appellee here) would show to the court that the judgment of divorce and decree providing for the custody of said Richard Grey Oldham was rendered on Dec. 7, 1937. That pursuant to the terms of said decree defendant herein was entitled to the custody of Richard Grey Oldham and John Brittain Oldham, beginning one week after the close of the spring term of school and continuing until one week before the opening of the fall term. That pursuant to such decree plaintiff (appellant here) surrendered the custody of said Richard Grey Oldham and John Brittain Oldham to defendant (appellee) herein on June 4, 1938 which was followed by allegations in regard to changed conditions since the original decree was rendered; also alleged that, on September 10, 1938, "plaintiff (appellant) entered into a written contract with defendant herein (appellee), by which she voluntarily relinquished her right to the custody of the said Richard Grey Oldham", by reason of which, appellee sought to have the original decree modified, and that he be given permanent custody of the minor. Throughout, in his cross action seeking exclusive control and custody of the minor, appellee referred to the original decree, quoting therefrom, and, in effect, conceded that such a judgment was rendered as the copy attached to plaintiffs petition purported to show. Therefore, we think that, on appellee's admissions, the judgment was properly before the court and entitled to full faith and credit, as provided by Sec. 1, Art. 4, of the Federal Constitution, U.S.C.A.
As appears from the excerpts quoted, custody of the three young boys was given the mother for nine months covering the school period of each year, and was given the father for the remaining three months, the vacation period. It is obvious, we think, that the chancellor thought it for the best interest of the children, whether in the custody of mother or father, that they should be kept together, grow up together, that they might learn to regard and love each other as brothers, and not simply regard each other as sons of common parents, which would likely result if they are permanently separated. We think it also obvious that the chancellor deemed it for their best interest, that the continuity of their school work should not be broken; and that, the periodic change of custody was to prevent, if possible, the natural affection of parent for child, and child for parent, from waning, growing cold, or becoming extinct. These provisions are parts of the Florida Court decree and are entitled to full faith and credit in the courts of this State, until it is shown, by allegation and proof, that the situation and character of the respective parties have so changed since the rendition of the decree, as to make it to the best
interest of the children, or either one of them, to set aside or modify the former decree.
The rules of law controlling in such cases have been very clearly and succinctly stated by our courts. In the case of Goldsmith v. Salkey,131 Tex. 139, 112 S.W.2d 165, 168, 116 A.L.R. 1293, Judge Martin, speaking for the Supreme Court, said: "It is no longer an open question in American jurisprudence that a child custody judgment is res judicata only of what was then before the court, and that far only is protected by the `full faith and credit' clause of the Federal Constitution, article 4, § 1. A subsequent material change of conditions brings into being a new and independent cause of action. The original custody judgment may be absolute and final in form. In reality, it is temporary and conditional. Whether expressed or not, the law writes into each of such judgments, in substance, that its finality ends when and if conditions affecting the welfare of the child have materially changed. So that it may be said that a petition alleging such facts is in no sense an attack upon such former judgment, but is an independent suit, having to do with a present status, and challenging the jurisdiction of a proper court to declare such status upon the basis of the then welfare of the child. That welfare is the concern of sovereignty, as the guardian of persons under disability, and in a very real sense the state is interested in the result, though not a nominal party. That concern does not end with a judgment, but is a continuing one until such child becomes sui juris." And, in the more recent case of Evans v. Taylor, Tex.Civ.App.128 S.W.2d 77-79, Judge Folley announced rules to the same effect; he said: "We think it is well settled in our jurisdiction that the two judgments of the Kansas court are res adjudicata of all questions concerning the right to the custody of the child which were or could have been raised at the time of the respective adjudications, are binding upon all the parties and the decrees are protected by the full faith and credit clause of the Federal Constitution. U.S.C.A. Const. art. 4, § 1. Goldsmith et al. v. Salkey [131 Tex. 139], 112 S.W.2d 165,116 A.L.R. 1293; Id., Tex.Civ.App. 115 S.W.2d 778, 116 A.L.R. 1293. It is also well settled that the finality of such judgments obtains so long as the circumstances remain the same. Such rule, however, does not bar a subsequent proceeding to modify or change the former award provided conditions have changed so materially since such decree as would warrant an adjudication upon the question in the light of the changed conditions. In order to warrant a change or modification of the order the true test seems to be that the proof must show the `situation and character of the respective parties have so changed as to render it to the (best) interest of the infant' that the former order be set aside or modified. Wilson v. Elliott, 96 Tex. 472, 73 S.W. 946, 947, 97 Am.St.Rep. 928".
In order, therefore, for appellee to disturb the judgment rendered by the Circuit Court of Lee County, Florida, it was incumbent upon him to both allege and prove that the conditions had so materially changed since the rendition of the decree as to render it for the best interest of the minor, whose custody is here involved, to set aside or modify the decree. In his answer and cross action, appellee alleged that, since the rendition of the Florida judgment, conditions had materially changed, warranting an adjudication modifying or changing the same, to the extent of awarding to appellee the permanent custody and control of the minor Richard Grey, but this is as far as appellant went in his effort to change the decree, as no proof was offered in support of his allegations. We can but conclude, therefore, that, as appellee failed to discharge the burden incumbent upon him, the trial court erred in rendering judgment disturbing the Florida decree, by awarding to him the permanent custody of the minor in question.
Appellee contends, however, that the letter-agreement of September 10, 1938, wherein appellant consented for their minor son Dick (Richard Grey) to remain with appellee indefinitely, was, within itself, such a material change in conditions as to warrant an inquiry into, and change of, the original decree, by awarding the permanent custody of the minor to appellee. The letter seems to have been written under these circumstances: After the decree of December 7, 1937, appellant retained custody of the children until the end of the school term in 1938, at which time the two older boys went with their father, appellee (who, in the meantime, had married again and was residing in Dallas, Texas), and at the expiration of the period of his custody, he returned the boys to their
mother, and, while in Florida, it seems that he and appellant entered into the agreement evidenced by the following letter: "Fort Myers, Florida, September 10, 1938. Mrs. Nan B. Oldham, Fort Myers, Florida. Dear Nan: This confirms our arrangement made today, whereby you are agreeable for our son Dick, to remain with me indefinitely without reference to the arrangement as to the other children. I have given you this letter in duplicate. Please keep one copy and let me have the other duly signed by you, so that there will be no misunderstanding between us as to the children. Sincerely, (signed) John C. Oldham (signed) Nan Oldham."
Appellee contends that the agreement, of itself, wrought such a material change in the conditions as to authorize the court, in the interest of the minor, to set aside the feature of the former decree relating to the custody of the minor involved, and to award his permanent custody to appellee. We do not think so; in fact, we fail to discover, in the subject matter of the letter-agreement, a tendency to change the conditions, in any way adverse to, or affecting, appellant's qualification or fitness as custodian of the minors, or that, in the least, tends to show that, by reason of the agreement, the best interest of the minor required a modification of the original decree. As before stated, appellee failed to introduce any evidence in support of his allegations as to changed conditions, except the letter just mentioned; on the other hand, appellant testified that she had a home, was amply able financially to support, properly care for and educate the children. As stated in Evans v. Taylor, Tex.Civ.App. 128 S.W.2d 77-79, the proof must show that the situation and character of the respective parties have so changed as to render it to the (best) interest of the infant that the former order be set aside or modified. We do not think the subject matter of the letter-agreement in question bears any relevancy to such an issue.
It is further contended that, because appellant voluntarily relinquished custody of the minor, subsequent to the original decree, the burden was upon her to show that the best interest of the minor would be served by returning him to her custody. We do not think the letter-agreement was of any contractual value whatever; therefore, was incapable of specific performance. In Legate v. Legate, 87 Tex. 248,253, 28 S.W. 281, 283, our Supreme Court said that, "The attempted transfer (referring to a transfer of the custody of a child) is not a contract, and cannot be enforced as such, because neither the child nor its custody was a subject-matter of contract."
Besides, we do not think the letter shows that Mrs. Oldham intended to permanently resign and turn the boy over to appellee, even if she had the legal right to take such action, which, absent a modification of the original decree, we do not think she possessed. At best, the letter indicates merely a temporary arrangement; consent by the mother for the father to have custody of the boy for an indefinite period, terminable by either at any time.
We therefore think the trial court erred, and that its judgment should be reversed and judgment here rendered in favor of appellant, affirming her right under the decree of the Circuit Court of Lee County, Florida, to have the custody and control of Richard Grey, to be exercised in accordance with the provisions of said decree.
Reversed, and rendered for appellant.
On Motion for Rehearing.
Rehearing denied.