The Court of Civil Appeals for the Fourth Supreme Judicial District have certified to us the following statement and question:
"On may 4, 1899, the appellant and appellee were divorced by decree of the District Court of New Mexico, where they resided. They had a daughter who is now 11 years of age. The New Mexico court had jurisdiction of the subject matter and of the parties, including the child. The final decree in that proceeding adjudicated that the father (appellee here) should have the custody of the child with the provision `that the child should be permitted to visit its mother once a year for the period of one month during the month of July, that said visits shall be made within the Territory of New Mexico, and the said child shall not be removed from said Territory by her mother.'
"The mother remarried in New Mexico, and with her husband removed to El Paso, Texas, she bringing with her the child in disregard of said decree.
"This is a habeas corpus proceeding, in the District Court of El Paso County, by the father to obtain possession of the child, and the proceeding took place in vacation.
"At the hearing the parties introduced testimony concerning the character, conduct and fitness of each other prior to and since the date of the territorial decree, but the judge, as shown by his certificate to the statement of facts, `did not consider as evidence on the trial any evidence of any fact that occurred prior to that decree, excepting the proceeding in said New Mexico court as set out in exhibit A hereto attached.' The exhibit thus referred to consists only of the certified pleading and decree of the New Mexico court. The testimony introduced and which the judge certifies he did not consider, affected the fitness of the parents respectively and was conflicting. The certificate to the statement of facts and also the judge's conclusions of law show that in disposing of the issues involved herein, he treated the New Mexico decree as conclusive of all matters at its date, and that he could and did consider only evidence of what has occurred since that date. The case is pending in this court on rehearing, and we therefore accompany this with copy of this court's opinion and copy of the motion for rehearing.
"Question: Was the district judge correct in the effect given by him to the New Mexico decree?"
In treating of the effect of an order of a court of another State or country, awarding the custody of children in a decree of divorce, Mr. Bishop says: "Under our National Constitution, this order is plainly a record to which, if the court has jurisdiction, the same faith and effect permitted it in the State of its rendition must be given in every other State. And the true rule in the State of its rendition is that it is res judicata, concluding the question. But it does not conclude the question for all time, since new facts may create new issues. Nor, since the relation of parent and child is a status, rightfully, like marriage, *Page 477 regulated by any State in which the parties are domiciled, does the order in one State operate as an estoppel of all future inquiry in the courts of another State wherein the child has acquired a domicile." 2 Bish. on Marr. and Div., 2 ed., 1189. We think that this is a correct exposition of the law and that it is sustained by the following authorities cited by the author: Dubois v. Johnson, 96 Ind. 6; Umlauf v. Umlauf, 27 Ill. App. 375; Jennings v. Jennings, 56 Iowa 288; State v. Bechdel,37 Minn. 360; White v. White, 75 Iowa 218; Sherwood v. Sherwood,56 Iowa 608; Teter v. Teter, 88 Ind. 494; Mercein v. The People, 25 Wend., 64; Taylor v. Jeter, 33 Ga. 195; Bennett v. Bennett, Deady, 299. It follows, that, in our opinion, the status of the father as a proper person to have the custody of the child at the time the decree of the territorial court of New Mexico was rendered was fixed by that decree, and that the judgment that he was entitled to such custody is res adjudicata; but that the order is not a bar to a subsequent proceeding to modify it upon proof that the situation and character of the respective parties has so changed as to render it to the interest of the infant that it be committed to the care of the mother. In the case of Dubois v. Johnson, previously cited, the court after quoting from the opinion in Williams v. Williams, 13 Ind. 523, says: "The substance of this is that courts may modify the decree awarding the custody of children in divorce cases, but such modification must be upon matters which have arisen subsequent to the decree." The question upon the first trial in a case of a character of this, is, which is the more suitable party to be intrusted with the care of the child at that time; the question in the subsequent proceeding is, which is the more suitable at the time of that trial. Since in determining the second question the first can not be agitated, it follows, that evidence of prior conduct of either party can not be introduced except to corroborate some evidence of similar conduct, which was developed since the original decree. As just intimated, we think, however, where testimony upon the second trial tends to show misconduct on the part of the one to whom the custody has been previously committed, and that he or she, since the first, has become a person not suitable for so important a charge, the rule of res adjudicata would not preclude the introduction of evidence of conduct previous to the first decree, — provided it tended to corroborate the evidence of subsequent conduct of a like nature. For example, upon the second trial evidence might be introduced tending to show that the party had, since the first, become a spendthrift, had wasted his subsistence, and was incapable of maintaining and educating the child as it should be maintained and educated. In such a case we see no reason why improvident conduct previous to the first decree may not be offered in evidence. Or if upon the second trial evidence be introduced tending to show that since the first the party has become an habitual drunkard, we think that it might be shown in corroboration that previous to the first trial he was accustomed to use intoxicating liquors to excess.
The certificate of the Court of Civil Appeals does not set forth the *Page 478 evidence which the judge had before him, and we get an unsatisfactory idea of it from the briefs to which we are referred. Without knowing all the evidence in the case bearing upon the issue presented, we can not give a direct answer to the question; but trust the foregoing may be sufficient to guide the court in the decision of the point.