Joseph J. Bukovich v. Sally A. Bukovich

This case presents questions for decision in the unfortunate situation when natural parents are involved in child custody litigation. Petitioner, the father, and Respondent, the mother, were divorced in Porter County, Indiana, in June of 1962. At the time, Mark Lawrence Bukovich, their only child, was less than two years of age. The mother was awarded custody of Mark, with the provision that she not leave the state. Her custody rights appear to have been reaffirmed by the Indiana court on subsequent occasions. In a still later proceeding instituted by the father for a change of custody, the Indiana court entered an order dated December 2, 1963, reciting Respondent to be in default, although duly notified, finding her in contempt of court, finding that she "is not a fit and proper person to have custody . . ." and ordering that custody of the child be "changed and granted" to the father. The mother and child left Indiana before this decree could be executed and were later located by the father in Amarillo, Texas. The father under date of January 10, 1964, filed a petition in the 108th District Court of Potter County, Texas, for a writ of habeas corpus to obtain possession of the child pursuant to the Indiana decree. The case was transferred to the Court of Domestic Relations of Potter County. The mother answered and alleged there had been a change of conditions since December 2, 1963, of sufficient nature to warrant a reward of custody to her. Trial was to a jury, with the mother assuming the burden of establishing a material change of conditions since the Indiana decree, and that an award of custody to her would be for the best interest of the child. The jury found that such a material change of conditions had occurred that the best interest of the child required a change of custody to the mother. The judgment of the trial court based thereon was affirmed by the Court of Civil Appeals. 391 S.W.2d 189. We granted Petitioners application for writ of error upon points of error asserting, in effect, that there was no evidence to support the jury finding of a change of conditions, and that the Court of Civil Appeals erred in not giving full faith and credit to the Indiana decree. We are of the view that a material change of conditions was not shown and therefore reverse the judgments below.