Everson v. Boydston , 377 S.W.2d 117 ( 1964 )

PRESLAR, Justice.

This is an appeal from an order of the District Court of Ector County, Texas, sustaining a plea to the jurisdiction of the court and dismissing a suit for child custody. The sole question for determination is one of jurisdiction, and we have determined that the Texas court does have jurisdiction and should hear the case on its merits.

Appellant, the father, was granted a divorce from the appellee-mother by this same Ector County court in February, 1955, in an uncontested action. The two children of the marriage, Patsy Jean, who is. now some 14 years of age, and Paula Kay, who is now 12 years of age, are-the subjects of this custody suit. The divorce judgment approved a property settlement, ordered the plaintiff-husband to pay child support, but as to custody of the children it made no award or order, as such. It simply recites that the parties have agreed that the mother shall have custody. Following the divorce the mother took the children to Oklahoma to her parents’ home. Some months later she requested the father to take them, she says, until she could get a job. Both parties remarried and the children have remained with the father in Odessa, Texas, through -the years except for visits of several weeks’ duration with the mother in Oklahoma. The last such visit, by the younger girl ■only, brought about this custody suit, when the mother refused to allow her return to Texas. The father filed this suit seeking an award of custody of both girls based •on changed conditions. Service was by nonresident citation on the mother in Oklahoma, and she filed a plea to the juris■diction, and appeared for the hearing from which this appeal is perfected.

We think the Texas court has jurisdiction on several bases. Our courts have held that the state in which the chil-idren have their domicile has jurisdiction to determine their custody, and that the •domicile of children of divorced parents follows the domicile of the parent to whom their custody was awarded. Peacock v. Bradshaw, 145 Tex. 68, 194 S.W.2d 551 (1946). We are of the opinion that the mother failed to meet her burden of proof ■on her plea to the jurisdiction, in that she failed to establish the domicile of the •children as being other than Texas. The divorce judgment being silent as to award ■of custody, we think that she took them to Oklahoma by agreement of the parties, and that such agreement was changed by the subsequent agreement by which they were returned to the father in Texas. If the domicile of the children followed the •mother to Oklahoma, under the first agreement, then it changed to Texas under the second agreement. The children have remained in Texas under such agreement for some seven years now, and the record in this case does not show any change of •that agreement. The younger child was in Oklahoma at the time of the hearing, and the older one was in Texas, so that if we assume there was a third agreement ■which changed the domicile of such younger child to Oklahoma or that jurisdiction was lost by its absence from the state, it would ■still be proper for the Texas court to re-fain jurisdiction for custody purposes of both to prevent a multiplicity of suits.

We are of the further opinion that the Texas court could retain jurisdiction even if it can be said that, technically, the domicile of the children is with the mother in Oklahoma. This' for the broader consideration of the welfare of the children. What is best for them is paramount to the rights of the parents, and all other things being about equal, the court best able to make the custody decision should take jurisdiction. Here the children had been in Odessa for the past seven years, the older girl is still there, and the younger one had been in Oklahoma only a short time prior to the filing of the suit. Here were the witnesses and here was where the record was made as to the care or lack of care which they had. The language of Justice Hart, speaking for the Supreme Court in Worden v. Worden, 148 Tex. 356, 224 S.W.2d 187, is applicable here:

“After carefully reviewing the authorities, this court held in Wicks v. Cox, 146 Tex. 489, 493, 208 S.W.2d 876, 878, 4 A.L.R.2d 1, that the ‘technical legal domicile of the child in this state is not a sine qua non of child custody jurisdiction on the part of our courts.’ Whether our courts have and will exercise jurisdiction depends in part upon domicile and also upon broader considerations, including among other things the physical presence before the court of the child and the contesting parties and the general situation affecting the ability of the court to form an intelligent judgment on what will be best for the child’s welfare. Here the facts show that the child and both parents were before the court; the husband is still a Texas domiciliary; most of the relevant facts occurred in Dallas, where the domicile of all of the parties had been until only a few months before the trial, and apparently all important witnesses actually were present and testified. Under these facts we think that the Texas court was in a better position to pass intelligently on the matter of the child’s welfare than the courts of Virginia, and therefore that the Texas court had jurisdiction to award custody.”

The judgment of the trial court is reversed and remanded for further proceedings.