This is a habeas corpus action filed by Joann Lee Gunther of San Diego, California seeking care and custody of four small children, Rick M. Gunther, Jeffrey C. Gunther, Janette M. Gunther and Sonny M. Gunther, their ages ranging from about ten years to about four years. The children were in the custody of their father, Edmund Harry Gunther, residing in Harris County at the time of trial and are still in his care and custody.
Suit was filed in Domestic Relations Court No. 4 of Harris County, Texas. The court, on application of Mrs. Gunther, had the children placed with the Probation Department, Juvenile Division, of Harris County until further orders of the court. After an extended trial on the merits without a jury,' the trial court awarded the permanent care, custody and control of the above children to their mother, Mrs. Joann Gunther, but permitted supersedeas, and the children were released to the custody of the father, Harry Gunther, pending appeal. Specific visitation rights were granted pending appeal to the mother. Appeal is by Harry Gunther, as appellant, assigning 21 Points of Error.
Needless to say, this case has a complicated and unfortunate background so far as the four children are concerned. In early 196.8, Harry Gunther and his wife, Joann Lee Gunther, separated, and she filed suit for divorce in the Superior Court of California for the County of San Diego. Interlocutory judgment of divorce was entered on January 8, 1969. On May 15, 1969, by stipulation and agreement of the parties, the care and custody of the children above were awarded to the father, Harry Gunther, with reasonable visitation rights reserved to the mother. After May 15, 1969, an extended and lengthy investigation was made by a California Probation Officer under the direction of the court, and such officer after outlining all facts obtained, recommended that the care and custody of the children be permanently awarded to the father, Harry Gunther, with right of reasonable visitation granted to the mother, Joan Gunther. Apparently the final decree of divorce was entered and signed on May 20, 1969. Mrs. Gunther became dissatisfied about September, 1969 with the custody arrangement and filed a motion to set aside the temporary custody order of May 15, 1969 above and sought custody of the children for herself. On February 24, 1970, the California court denied Mrs. Gunther’s motion for change of custody, denied her motion to amend the order so as to grant custody to her, but the interlocutory judgment of divorce of January 8, 1969, and the final judgments thereupon entered were amended to grant Mrs. Gunther specific visitation rights at various times with her children. Both parties were restrained by the California court from removing the children from the state of California without written consent of the other, “except that if the respondent (father) is assigned within the course of his government duties to another residence, he shall appear before the Court for an Order, with proper notice to the petitioner (mother), as to the children accompanying him.” On March 27, 1970, Harry Gunther appeared in court personally only in answer to Mrs. Gunther’s motion to show cause why he should not be held in contempt for refusal to deliver the children to her for Easter vacation as directed. The court held the father in contempt and assessed a $100.00 fine, which was suspended on the father’s compliance with the order. No application again to change custody *824 appears in the record in the above order to show cause.
While the record is not clear, thereafter Mrs. Gunther had another petition for change of custody consolidated with the above show cause motion of March 27, 1970, the latter order appearing to be disposed of on that date for all practical purposes. Mrs. Gunther’s alleged change of custody petition apparently filed after the contempt hearing, if filed at all, was set for April 20, 1970, was thereafter continued to July 16, 1970, and thereafter continued to August 13, 1970. This petition was apparently filed only a short time after the court had acted on custody on February 24, 1970. Pursuant thereto, and in the absence of Harry Gunther with apparently no notice to him, actual or constructive, another judge on August 18, 1970, completely reversed the custody arrangement and “modified” the interlocutory judgment of January 8, 1969, and the subsequent court orders of May 15, 1969, and February 24, 1970. In this connection Harry Gunther testified that he never received any type of notice from the California court or from anyone else after the March 27, 1970 hearing, and that he left California with his present wife and the children in April, 1970, (appellee admits between March 27, 1970, and April 20, 1970) and took a job at Casa Grande, Arizona with the U. S. Naval Civil Service. His leaving of California about that time is not disputed. Mrs. Gunther testified that Judge Wilkey (the later judge who awarded custody to Mrs. Gunther) issued a bench warrant for Mr. Gunther and “by that time Harry was already gone.”, This occurred in May of 1970. An attempt was made to prove notice by mail pertaining to the August 18, 1970 hearing, by affidavit of Mrs. Gunther’s attorney, but this procedure being clearly hearsay and not specifically relevant in any event, the Texas trial court refused to permit its introduction. We do not believe the record contains any evidence of a motion or application on the part of Mrs. Gunther for change of custody which was received by Mr. Gunther by personal citation, mail, publication, or by any other method. Nor do we think the record supports any finding that notice of the time and place of hearing was ever given to him by authority of the court or by the parties in California, or that he had any knowledge thereof even though the absence of such notice might be considered to be appellant’s fault by reason of his move from California.
The testimony shows that appellant “sold out” in California in April of 1970. He married his present wife, Ava, on April 30, 1969. He never told appellee where he was located, even though the California trial court had restrained him from removing the children out of the state of California. He paid bills through another person. He denied that he knew the whereabouts of appellee, though it is apparent that he did not want her to know his and the children’s whereabouts. Appellant had someone in Germany send a letter to a Mr. Olson in California, Mr. Olson being acquainted with Mr. and Mrs. Gunther, falsely written from Germany by Mr. Gunther, stating that he had left the United States and had returned to his native country with the children. In September of 1969 when Mrs. Gunther repudiated her agreement concerning custody, she testified that Mr. Gunther had offered her $2,000.00 if she would never try to regain custody of the children. Appellant lived in Arizona from May until July, 1970. He moved to Texas in July and lived for short times in Burton and Brenham and later moved to Houston and Spring, Texas near Houston. He is now employed in Houston for Thermotics Corporation as an electrical design engineer. He has placed his children in the public schools near his home, and the children seem to be doing reasonably well in school and are seemingly happy. Appellant’s neighbors, who had known him for only a short time, testified that he was a good man and each spoke highly of him and of his affection for the children. His salary is now about $1,000.00 per month. He is a good worker and his employer recommended him highly.
*825 Mrs. Gunther, appellee, testified that the original custody agreement in May of 1969 was a “trick” played upon her by appellant, and that she signed the agreement because she hoped he would come back to her and that they could eventually straighten up their lives. This, of course, was prior to the above order and prior to the order of February 24, 1970. She testified that appellant whipped her and physically was violent toward her in 1968 and 1969, again before the order of February, 1970. In 1969 he caused the children to dislike or to hate her. Her children lived with her until April, 1969, when she signed the custody agreement above referred to. The Probation Officer had originally recommended in 1968 that the parents have joint legal custody; that their physical custody should be in the mother with the father’s liberal visitation rights recognized and enforced. She testified that appellant was “tricky”, was not sincere and was devoted solely to himself. She testified further that he “mistreats” the children, and that he has a violent, drunken temper, though there is no evidence of such from reports or from the children. She testified further that she had been trying to find her children for about seven months, and that she finally found them by employing private detectives who, in some manner, intercepted mail which eventually revealed the children’s whereabouts. One of the detectives testified that the Gunther home in Spring was not good, was in disarray and was a veritable “pigsty”. This was explained by appellant, who stated that various types of furniture and fixtures in his home could not be used because of the doctor’s warning that they might aggravate an allergy suffered by two of the children. Neighbors stated that the home was good and the children were well taken care of. The detective stated also that appellant reported to the school authorities that he could not give his specific address because (as reported) appellant was an ex-FBI man and did not want his children to be harassed. The latter is purely hearsay.
Mr. Gunther, appellant, testified that his ex-wife was beset with emotional problems and had suicidal tendencies, and that she could not handle the responsibilities of four small children. He denied most of the charges made above by appellee. He stated that she did not prepare proper food for the children and did not take proper care of them. Mr. Gunther testified that his ex-wife shot at him when he was in his automobile while their case was pending in California, and that she told him that she would not miss the next time. The record shows that Mrs. Gunther was employed in California by Brown Cadillac Co., that Mr. Brown had given her a leave of absence to straighten out her personal life, and when that was done she could come back. She stated that she had an adequate home for her children in California — a three-bedroom house with a kitchen, living room and a large play area near a school. Her present income or source thereof is not revealed by the record, though she stated that she had spent more than $1,000.00 on detectives in trying to locate her children since they left California. From the record, it seems apparent that appellant’s present wife, Ava, loves the children as well, as her one child who lives with them, and is cooperating to try to make a good home for all the children in Texas. The facts in this case are unusual and present the trial court, as well as this Court, with many nebulous and disquieting problems.
At appellant’s request, the trial court made and filed findings of fact and conclusions of law. The court found as a fact that the California court awarded custody of the children to appellee on August 18, 1970; that appellant violated the court’s order of February 24, 1970, by removing the children from California; that appellant deliberately concealed the whereabouts of the children from their mother; that Joann Lee Gunther, the mother, is entitled to the custody of said children by virtue of the order of August 18, 1970, above mentioned, and that the court at that time had jurisdiction of the parties and the children; *826 that the California court found the mother to be the fit person for custody and further found that the best interests and welfare of the children would be served by granting her custody. The Harris County Court found that the best interests and welfare of the children would be served by awarding the sole care, custody and control of the children to Joann Lee Gunther and would not be served by awarding such custody to Edmund Harry Gunther. The trial court concluded that Joann Lee Gunther is the fit and proper person for custody, that the father is not the fit person, and that the children’s best interests and welfare will best be served by granting custody to the mother and not to the father. The findings and conclusions were objected to and request was made for findings concerning the actions and orders of the California court above outlined generally, the main request being that the Superior Court of California did not have jurisdiction of appellant and the children on August 18, 1970, and that such order was not entitled to full faith and credit under the Constitution of the United States or the State of Texas. The requested findings and conclusions were denied by the trial court.
A habeas corpus suit of this kind is in reality a civil suit involving custody with the parents as adverse parties, and the powers of the court to adjudicate custody and visitation are automatically invoked. See Fletcher v. Fletcher,
At the outset we note that the provisions of Rule 184a, Tex.R.Civ.P., pertaining generally to judicial notice of the laws of other states, was never pleaded or invoked.
1
The parties did, however, introduce into evidence properly authenticated copies of various California orders and judgments, and under such circumstances we shall presume that a court of a sister state of general jurisdiction had jurisdiction over the cause and the parties unless and until such jurisdiction is disproved by extrinsic evidence or by the record. Liddell v. Blevins,
Texas courts under Art. IV, Sec. 1 of the Constitution of the United States and statutes enacted pursuant thereto, are required to give full faith and credit to valid final judgments of sister states. However, we believe it is now clear that a Texas court may examine the facts to determine whether or not the California court (or any court of a sister state) did in fact have jurisdiction to enter the decree of which full faith and credit is sought. Williams v. North Carolina,
While we do not approve of any violation of the California court’s orders, appellant’s action in leaving that state with his children, punishable by contempt in California, should not influence our decision on this specific question. See Ex parte Birmingham, supra, 244 S.W.2d p. 980 and cases cited. An award of custody should never be made in order to punish a parent but only to protect the best interests of the children involved. Anderson v. Martin,
Concerning the validity of the California order of August 18, 1970, we recognize that there is divided authority or apparent divided authority on this question in Texas. In the present case, however, no notice at all was given to appellant regarding the August 18, 1970 order and no constructive service was shown by publication or otherwise. The conflicting cases differ to some extent. See and compare, contra, Bull v. Wilson,
Regarding the remaining and controlling aspect of this case, it is settled that jurisdiction of Texas courts to determine custody does not necessarily depend on the children’s domicile in Texas. Campbell v. Stover,
The evidence in this record, if given credibility, which the trial court apparently did, is replete with acts of misconduct on the part of appellant. Appellee testified that appellant tricked her into signing the custody papers in May, 1969 under a promise that he would in some manner take care of her. She testified that he was not sincere and was interested only in himself and his own welfare. He carried out his insincere purposes by immediately remarrying and by taking all the children covertly and without the knowledge of either the courts or the mother, to Arizona in April and to Texas in July, 1970, all of this in direct violation of the valid orders of the Superior Court of California. It is clear that he was trying to hide himself and the children particularly from their mother. Location of her children took from seven months to about a year after an expenditure on the mother’s part of more than $1,000.00 She, as apparently did appellant, loved her children, and it is difficult fully to imagine the anxiety and distress caused appellee by not knowing even her children’s whereabouts, their welfare, or anything else about them for such a length of time. The findings of the trial court that Mr. Gunther deliberately concealed the whereabouts of the children from their mother, Joann Lee Gunther, and supporting findings are well proven by the testimony. The trial court concluded from the evidence relative to changed circumstances that Harry Gunther was not a fit and proper person to be awarded custody, and it found and concluded that the best interest and welfare of the children would be served by awarding their sole care, custody and control to the mother, Joann Lee Gunther. Wide discretion is granted the trial judge in this type of case because of his opportunity to observe and evaluate in person the parties involved. His actions will not be disturbed in the absence of an abuse of discretion. For the welfare of the children, it is certainly necessary that children know, love, and be with each of their parents. See Furrer v. Furrer,
For the above reasons stated, the judgment of the trial court is affirmed.
Notes
. Rule 184a. “The judge upon the motion of either party shall take judicial notice of the common law, public statutes, and court decisions of every other state, territory, or jurisdiction of the United States. Any party requesting that judicial notice be taken of such matter shall furnish the judge sufficient information to enable him properly to comply with the request, and shall give each adverse party such notice, if any, as the judge may deem necessary, to enable the adverse party fairly to prepare to meet the request. The rulings of the judge on such matters shall be subject to review.”