Opinion
No. 4785.
December 19, 1968. Rehearing Denied January 16, 1969.
McLaughlin, Clark, Fisher, Gorin McDonald, Charles M. McDonald, Copeland Thomas, Waco, for relators.
Haley, Fulbright, Winniford, Sessions Bice, Waco, for respondents.
ORIGINAL PROCEEDING OPINION
Relators apply for writ of prohibition, which is denied. The temporary writ heretofore issued is dissolved.
Decree was rendered August 16, 1968 in the District Court of Waller County by which custody of a minor child was awarded to the father. The decree, resulting from an application to readjudicate custody on change of condition, became final. It was one of numerous steps in voluminous proceedings, not necessary to catalogue, in a divorce case in Waller County, instituted in 1963.
Contempt proceedings were thereafter instituted alleging the mother had failed to deliver the child to the father in accordance with the August, 1968 order. Notices were given on an order to show cause. At the hearing on October 14, 1968 the parties agreed that the mother would deliver the child to the father at her attorney's office in McLennan County on a specified date. The father, a resident of Arkansas, when he appeared at the attorney's office for the child, was served with a writ of injunction dated October 18 prohibiting his removal of the child from McLennan County. This writ was issued on order of the District Court of the latter county on application of the aunt and uncle of the child. The Waller County District Court thereafter issued a writ of habeas corpus requiring appearance and delivery of the child there on November 29, 1968. Pleas to the jurisdiction and pleas of privilege were filed in that proceeding.
The writ of injunction from the McLennan County District Court issued on the petition of the child's aunt and uncle in that court for change of custody, which was filed October 18. Father and mother of the child are defendants in that proceeding. The mother filed a cross-action in the McLennan County proceeding seeking custody. On October 23, 1968 an order was entered in the latter cause, reciting mother and child had lived in McLennan County since July, 1967, and temporarily enjoining plaintiffs or the child's father from removing the child from McLennan County. Appeal was perfected from the temporary injunction by the father to this court, the transcript having been filed November 18, 1968.
This court issued a temporary writ of prohibition to the Waller County District Court on November 27, 1968. That writ is hereby dissolved.
This court has jurisdiction to issue the writ of prohibition to aid, enforce and protect its jurisdiction and preserve the subject matter of the litigation pending appeal, under Art. 1823, Vernon's Ann.Civ.Stat.
We deny the writ because the matter of custody of this child has been the continuous, unfortunate and unhappy subject matter of controversy in the Waller County District Court for the past five years. The fact that new parties have intervened in the course of the litigation has not changed the nature of that subject matter.
The writ is denied also because it would be equally justifiable for another Court of Civil Appeals to issue a writ of prohibition to the McLennan County District Court in the event the present appeal to this court results in affirmance. The resulting stalemate would eventuate in such a situation as that in Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063. This court should be slow to so impede the judicial process, despite its power to do so.
In considering the best interests of the child, as is our primary duty, we are unable to decide from this record that those interests will be further damaged by denial of the writ. Writ denied.