A Day Before Us __TOP__
WASHINGTON (Reuters) - Senator Bernie Sanders, a day before the next debate among the Democratic U.S. presidential candidates, released a plan on Monday underscoring his left-leaning economic views aimed at curbing corporate tax avoidance, tightening antitrust enforcement and empowering workers.
A Day Before Us
The alleged violation of airspace took place a day before the United States Undersecretary for Economic Affairs Keith Krach was due to arrive in Taiwan amid a growing geopolitical standoff between China and the US.
A day before U.S. senators are set to hear testimony on federal spending at for-profit colleges, Harris N. Miller, president of the trade association that represents such institutions, spoke out in defense of the booming sector and sharply criticized the expected testimony of a Wall Street investor who has compared it to the subprime-mortgage industry.
BEIJING - China warned the United States on Monday of a trade war if Congress passes a bill pressuring Beijing to appreciate the yuan. The warning came a day before US lawmakers are set to vote on the bill.
NORTH TEXAS (CBSDFW.COM) - Former presidential candidate Beto O'Rourke headlined a voting rights rally in Austin on June 20, a day before Democrats in the U.S. Senate take up a sweeping bill aimed at combating new Republican-backed voting restrictions in Texas and other states across the country.
A handful of Republican lawmakers have backed away from some provisions in the measure, such as a prohibition on early voting on Sundays before 1 p.m. - a measure widely seen as targeting Black churches' "souls to the polls" drives.
The commitment order arose out of a child custody proceeding brought "in the District Court" of said county on August 14, 1951 against relator by his former wife, Mary M. McCullough. That proceeding was itself in the form of habeas corpus, and the writ therein was issued on August 14, 1951 by Hon. N. L. Dalby, Judge of the District Court for the 102nd Judicial District, commanding relator, as respondent in that proceeding, to produce his two minor children "before the Judge of the 5th Judicial District at Boston in the County of Bowie * * * on the 27th day of August, A.D.1951 at 10 o'clock * * *" and to show cause for his allegedly illegal detention of them. Relator disobeyed the writ by failing to produce the children before Judge Beck of the 5th Judicial District Court, who thereupon issued the order adjudging relator to be in contempt and committing him into the hands of the sheriff *978 for confinement "until he is willing to obey the said writ of habeas corpus, and until he pays all the costs of this proceeding."
As part of the record included with relator's petition here there is a certified copy of the sworn petition of Mrs. McCullough for custody of the children, in which she alleges in substance: That relator Birmingham and the children are "residents" of Bowie County, Texas; that some five months before the suit, relator "delivered full and complete custody, care and control of said minors to the petitioners" (Mr. and Mrs. McCullough) "by reason of the fact that he had been unable theretofore to properly care for said children"; that on August 13, 1951 (the day before suit was filed) the children then being with their mother in Bowie County, relator "by force, stealth and trickery" took them away with him in an automobile; that "at the time said Edwin Ray Birmingham, Sr. had custody of the said minor children, he failed to properly care for them," and was not at the time of suit a proper person to have custody of them, whereas Mrs. McCullough was a proper custodian and should be given custody for the best interest of the children.
As stated, the writ issued pursuant to the foregoing petition was returnable on August 27th. Evidently relator Birmingham failed to appear on that day, but this failure resulted only in an attachment of his person and his appearance with counsel on the next day (August 28th) and is not a basis of the commitment order before us. On August 28th, relator presented a sworn plea to the jurisdiction of the court over the subject matter of the suit and sought to introduce evidence in support thereof. The court refused to hear such evidence either by way of hearing on the plea or for purposes of a bill of exception, but proceeded to make the commitment order. However, relator was allowed a rather elaborate bill, including a statement by his counsel of the evidence which he would have introduced if permitted to do so.
But here, the children had their legal domicile in Arkansas. The present relator, their father, was domiciled in the same state and had custody of them under an Arkansas decree, which had also granted him a divorce from the children's mother, Mrs. McCullough. When the latter filed her custody suit in Texas, the children were physically in Arkansas, where they have since remained. Even were we disposed to accept the allegations of Mrs. McCullough's petition, which we probably should not do, since no proof of them was offered, we could not, in the light of the evidence offered by relator Birmingham, take them to mean more than that, at commencement of the custody proceeding, relator had been maintaining some sort of temporary abode in Bowie County, that the children's mother, Mrs.McCullough, was legally domiciled and resident there with her present husband, and that the children, until shortly before the suit was field, had been living there for about six months with Mrs. McCullough under some legally informal arrangement between the latter and relator, which relator abruptly and surreptitiously terminated by taking the children out of Texas.
In Lanning v. Gregory, 100 Tex. 310, 99 S.W. 542, 10 L.R.A.,N.S., 690, we held a Texas court to be without jurisdiction to adjudicate the custody of a child domiciled in Louisiana but present in the state on a visit. Both the disputing father and mother were before the court, but were domiciled respectively in Louisiana and Kentucky, having been divorced at an earlier date by a decree which contained no custody provision. The decision is indeed not authority for the proposition that a Texas domicile on the part of the child is essential to our custody jurisdiction. See Wicks v. Cox, 146 Tex. 489, 208 S.W.2d 876, 4 A.L.R.2d 1. See also Worden v. Worden, 148 Tex. 356, 224 S.W.2d 187. However, it still stands as authority for at least this much: that the power of the court over the persons of the contending parties is not of itself sufficient to confer custody jurisdiction. If such power were enough, clearly we would have sustained jurisdiction and not rejected it. From the two recent decisions last above cited and those to which the opinions therein refer, it is shown that the two basic alternative prerequisites for custody jurisdiction are (a) domicile of the child in the state and (b) its presence in the state. Thus we have held in Peacock v. Bradshaw, 145 Tex. 68, 194 S.W.2d 551, that custody of a Texas child may be adjudicated here even though the child be then residing beyond the state, and on the other hand, as in Worden *980 v. Worden, supra; Wicks v. Cox, supra; Goldsmith v. Salkey, 131 Tex. 139, 112 S.W.2d 165, 116 A.L.R. 1293, and Campbell v. Storer, 101 Tex. 82, 104 S.W. 1047, that, under particular sets of facts, each of which included the presence, though not the domicile, of the child within the state, our courts may determine custody. Except where the child is domiciled or physically present within the state, we have yet to hold our courts to be vested with custody jurisdiction, while considerable authority from other sources has expressly rejected jurisdiction where both of these prerequisites are lacking, and this although the contending parents may both be before the court. Ex parte Chandler, 36 Cal. App. 2d 583, 97 P.2d 1048, (as restated and apparently approved in Sampsell v. Superior Court, 32 Cal. 2d 763, 197 P.2d 739, 747-748); State ex rel. Clark v. Clark, 148 Fla. 452, 4 So. 2d 517; Dorman v. Friendly, 146 Fla. 732, 1 So. 2d 734; Restatement, Conflict of Laws, 145-148; 2 Beal, Conflict of Laws, 1443. See also Stumberg, Conflict of Laws, p. 324 and the elaborate note in 4 A.L.R.2d 7, 25. Ex parte Chandler, supra, is closely in point on the facts with the instant case. There is indeed some authority to the contrary. Ex parte Young, C.C. E.D.Tenn., 50 F. 526; Shaw v. Shaw, 114 S.C. 300, 103 S.E. 526. And we do not refer to unusual fact situations, not relevant here, such as where a valid divorce and custody decree of the forum, expressly reserving custody power for the future, comes to conflict with later established conditions of physical absence or foreigh domiciled seems preferable. In our view it not only favors the reasonable object of limiting further semi-procedural complications in this increasingly troublesome kind of suit, but in most instances will reasonably restrict the latter to the state or states best able to make a sound disposition of the controversy. The idea of a non-domiciliary court using its power over the person of a party to make him or her bring a child into the state, and especially away from the domiciliary state, in order to adjudicate custody seems to have little in theory or practice to recommend it.
It cannot, in our opinion be said that in effect the children were present in the forum as a result of having resided (if they actually did so) in Bowie County for some six months and up until only a day before Mrs. McCullough brought her suit. Assuming, as we may do against her interest, that she truthfully alleged relator to have taken them away, he had power as custodian to do as much, and whether he did so a day or a week or a month before suit was filed is immaterial, as is also the fact, were it established, that he did so surreptitiously. See the cases cited in Wicks v. Cox, supra, 208 S.W.2d 876, 879. 041b061a72