Summary
In Bradford v. Lincoln Bank Trust Co., 96 S.W.2d 821 (Tex.Civ.App., 1936, dism.), it was held that after the death of the mother who had been awarded custody of the child at the time of divorce, the father was the natural guardian of the child's person and entitled to its custody until otherwise decreed by a court of competent jurisdiction.
Summary of this case from Harrelson v. DavisOpinion
No. 3413.
September 10, 1936. Rehearing Denied September 24, 1936.
Appeal from District Court, Dallas County; Sarah T. Hughes, Judge.
Application by the Lincoln Bank Trust Company, of Louisville, Ky., for letters of guardianship of the estate of Hubert J. Jenkins, Jr., a minor, situate in Texas, and for an order requiring the resident guardian, T. L. Bradford, Jr., to deliver such estate. From an order granting the application, T. L. Bradford, Jr., appeals.
Affirmed.
This is an appeal by T. L. Bradford, Jr., the Texas resident guardian of the person and estate of Hubert J. Jenkins, Jr., a minor, from an order appointing Lincoln Bank Trust Company, a Kentucky Corporation, nonresident guardian of the estate of said minor, and requiring the resident guardian to deliver the property of the estate to the nonresident guardian.
The court's findings are lengthy. For the sake of brevity, a condensed statement will be made of the controlling facts.
The minor is the child of Hubert J. Jenkins, Sr., and wife, Elizabeth Jenkins. He was born September 16, 1922. On February 18, 1924, Mrs. Jenkins was granted a divorce in the district court of Dallas county and the custody of the minor awarded to her. April 2, 1927, the mother died. April 18, 1927, T. L. Bradford, Sr., maternal grandfather of the child, applied for appointment as guardian of its person and estate.
A few days before April 30, 1927, the father of the child came to Dallas from Enid, Okla., where he then lived, and employed counsel in Dallas to represent him in obtaining custody of the child. He remained in Dallas but a few days and returned to Oklahoma. April 30, 1927, the father filed application in the district court of Dallas county for writ of habeas corpus. The same day the court ordered T. L. Bradford, Sr., to produce the child and set the hearing for May 7, 1927.
May 2, 1927, the father, through his attorney, filed a contest in the county court to Bradford's application for guardianship and applied for his own appointment.
May 20, 1927, Jenkins' attorney wired him at Enid that he had withdrawn as his attorney of record and the matters had been passed for a week to enable Jenkins to get another attorney. This wire was confirmed by letter on May 21st. The attorney received no reply to the wire or letter.
After Jenkins returned to Oklahoma, he took no further action in the court proceedings.
June 8, 1927, Bradford answered the application of the father to be appointed guardian of the child and asserted his unfitness therefor.
On the same date the county court appointed Bradford guardian of the person and estate of the minor. The order contains findings that Jenkins was wholly unfit to be the child's guardian.
June 14, 1927, amended pleading was filed by Bradford in the habeas corpus proceedings setting up cross-action, praying he be awarded custody of the child. June 17, 1927, judgment was rendered in the habeas corpus proceeding awarding to Bradford the custody of the minor and enjoining Jenkins from interfering with the child. There was no service upon Jenkins of the cross-action. The judgment recites Jenkins came not. It contains findings that Jenkins was not a fit person to have the care, custody, and control of the minor and it was not to the minor's best interests to give such care, custody, and control to him.
The child continued to live in Dallas with Bradford and wife, Adieu K. Bradford, until Bradford's death on August 22, 1932. Mrs. Bradford was the child's step-grandmother. There was no blood relationship between them.
A few days after Bradford's death the father came to Dallas from his home in Louisville, Jefferson county, where he then lived, to assert his right to his child. Mrs. Addie K. Bradford had the child and asserted a right of custody against the father. With her attorney she restricted and regulated the father's visits with the child and refused to permit him to take the child except for short visits. She claimed custody of the child.
August 30, 1932, Mrs. Bradford filed in the county court of Dallas county application for appointment as guardian of the person and estate of the minor.
September 5, 1932, Mrs. Bradford and her attorney permitted Jenkins to take the child to lunch. Jenkins immediately left Texas by automobile, carrying the child with him to Louisville, Ky., where it has since continuously lived with Jenkins and the latter's present wife.
September 6, 1932, Mrs. Bradford amended her application for appointment as guardian. The application showed no necessity for the appointment of a temporary guardian. On the same day (September 6th) and after the child had been taken out of Texas, the county court appointed Mrs. Bradford temporary guardian of the child's person and estate. She qualified September 7, 1932.
September 9, 1932, the father was appointed guardian of the person and estate of the minor by the county court of Jefferson county, Ky.
October 19, 1932, T. L. Bradford, Jr., maternal uncle of the minor, applied to the county court of Dallas county for appointment as permanent guardian of the minor's person and estate. November 30, 1932, Mrs. Bradford filed waiver, and, on the same date, Bradford, Jr., the appellant here, was appointed permanent guardian of the person and estate of the minor by the county court of Dallas county. The minor was not in Texas at the time of Mrs. Bradford's appointment nor at any time thereafter.
Jenkins, Sr., resigned his appointment in Kentucky, as guardian of the minor's estate. He continued as guardian of its person.
November 28, 1932, on application of Jenkins, Sr., the appellee was appointed guardian of the minor's estate by the county court of Jefferson county, Ky., and qualified as such.
It later filed application in the county court of Dallas county for letters of guardianship of the estate of the minor situate in this state and for order requiring the resident guardian, T. L. Bradford, Jr., to deliver such estate to it as provided by chapter 13, title 69, arts. 4285 to 4289, R. S.
In the county court the application was denied and upon appeal to the district court was granted.
Hamilton, Lipscomb Wood, of Dallas, for appellant.
Dodd Dodd, of Louisville, Ky., and J. C. Muse, Jr., of Dallas, for appellee.
The statute authorizes the order made in this case where the guardian and his ward are nonresidents of this state. Article 4285, R.S.
When Jenkins and wife were divorced and the custody of the child awarded to the mother, the domicile of the child was that of the mother, which was in Texas. Upon the death of the mother and subsequent appointment of T. L. Bradford, Sr., as guardian, by the county court of Dallas county, and the decree of the district court of Dallas county in the habeas corpus proceeding, the domicile of the child was in Dallas, where Bradford lived. Appellee asserts the district court decree is void because rendered without appearance by him or service of the cross-action, but this is a matter which need not be determined. The validity of the decree may be conceded.
After the death of the mother, the father was the natural guardian of the child's person (article 4118, R.S.) and entitled to its custody until otherwise decreed by a court of competent jurisdiction. Kahn v. Israelson, 62 Tex. 221; Walker v. Finney (Tex.Civ.App.) 157 S.W. 948. The district court had exclusive jurisdiction to determine the proper custodian of the child. Ex parte Reeves, 100 Tex. 617, 103 S.W. 478; Legate v. Legate, 87 Tex. 248, 28 S.W. 281; Estes v. Presswood (Tex.Civ.App.) 137 S.W. 145.
Upon the death of Bradford, Sr., the child was without an appointed guardian, and the decree of the district court awarding its custody to Bradford was functus officio. The right of the father to the custody of the child immediately reinvested in him as its natural guardian and protector. Gallamore v. Glazier (Tex.Civ.App.) 200 S.W. 854. Of that right he could not be lawfully deprived except by decree of the district court. In removing the child to his home in Louisville the father acted within his legal rights. That he did so surreptitiously does not, under the circumstances, militate against his rights. The step-grandmother had no legal right to deny Jenkins the custody of the child, and her action in so doing warranted Jenkins in the action he took.
The findings of Jenkins' unfitness, made several years before in the guardianship and habeas corpus proceedings, did not affect the right of the father to again immediately assert his right to the custody of the child upon the death of Bradford, Sr., and, as heretofore stated, the right to such custody at once reinvested in the father and was paramount until otherwise decreed by a court of competent jurisdiction.
The domicile of the child is that of the father, which is in Louisville, Ky. Gulf, C. S. F. R. Co. v. Lemons, 109 Tex. 244, 206 S.W. 75, 5 A.L.R. 943; Wright v. Wright (Tex.Civ.App.) 285 S.W. 909.
We therefore overrule all propositions predicated upon the theory that the minor is not lawfully domiciled in Kentucky, where the father resides.
We also overrule those propositions which assert there is no evidence it would be to the best interest of the minor and his estate that appellee be permitted to qualify as nonresident guardian and remove the minor's estate to Kentucky and that it was an abuse of discretion on the court's part to so order.
Appellee has complied with the statutory requirements. There is nothing to impeach its fitness. The minor is now lawfully domiciled in Louisville, where appellee is also domiciled. It is ordinarily best that a minor's estate should be administered by a qualified guardian where the minor lives.
The propositions last stated are without merit.
Affirmed.