This is a child custody case between James V. Short, Jr., and his former wife, Barbara Short, in which the father seeks the care and custody of their two children, James Eldon Short, age 3, and Sherrie Lynn Short, age 2. James V. Short, Jr., filed a petition in the District Court of Jim Wells County, Texas, on November 16, 1960, for a writ of habeas corpus to secure the possession and custody of the two children. Barbara Short answered this petition on November 18, and also filed a cross-action asking that she be awarded the permanent care, custody and control of her two children. James V. Short, Jr., immediately appeared in the District Court of Jim Wells County and announced ready on both the application for temporary custody of the children and upon the cross-action for permanent custody of them, and stated in effect that he was invoking the jurisdiction of the Jim Wells District Court for both purposes, and wanted the issues raised heard and determined by that court. Whereupon a trial before the court without the intervention of a jury was begun. Evidence was heard showing that James and Barbara Short were married in the State of New Mexico about one year before the birth of their son, James Eldon, on August 27, 1957. On September 6, 1958, their daughter, Sherrie Lynn, was born, and about two weeks thereafter the parents separated and have not lived together as man and wife since that date. Thereafter, Barbara Short filed a suit for divorce, and on June 25, 1959, she was granted a divorce from James V. Short, Jr., and was awarded the care and custody of her two small children. The suit was filed in the District Court of Lea County, New Mexico, being Cause No. 16727, styled Barbara Short v. James V. Short, Jr. At the time, both parties were living in Lovington, New Mexico. Thereafter, James *Page 399 V. Short, Jr., instituted proceedings to have the custody of the two children changed to him. An order was introduced in evidence in the court below, styled 'Order Modifying Judgment,' rendered in the same court and in the same suit above described, reciting that the matter came on for hearing on June 22, 1960, and showing that the order was not filed until August 30, 1960. This order recites the appearance of the parties, and finds 'that it would be to the best interest of the children that the custody be taken from the mother, plaintiff, and given to their father, defendant,' and it was so ordered.
In this connection, Barbara Short testified as follows:
"Q. The fact that the Court had awarded custody to your husband was communicated to you, was it not? A. Yes, sir.
"Q. Now, immediately after that was told to you, what did you do? A. I went to the Judge's Chambers, I guess you would call it that, and asked the Court Stenographer if I could see the Judge. He said that he had left.
"Q. Yes. A. And I asked if I might get a copy of the Order.
"Q. Yes. A. He said, 'no ma'am.' He said, 'we will not be able to get that copy for you for two or three months,' and then I left, left his office, and got in my car, got back out of the car, went to the bank and cashed a check, got back in the car, went to my home and got my children — well, to the neighbor's home right next to my parents; got my children and left.
"Q. And left New Mexico? A. That is correct.
"Q. Where did you go? A. Well, we have been just about sixteen thousand miles. I couldn't tell you every place that we have been.
"Q. You say `we'. Who is the other party? A. My children, and Mr. Wood and I.
"Q. Mr. Wood. What is his first name? You call him Cotton? A. Cotton.
"Q. And Mr. Wood is married, is he not? A. That is correct.
"Q. And did you continue to live with him during this period of time between June 22nd and today? A. No, sir, I did not.
"Q. What places did you go in your sixteen thousand mile trip?
"The Court: Is this relevant to this?"
She went on to testify that she had not been 16,000 miles, but her car had been that far; that they stopped in Arkansas for a while and finally came to Alice, Texas, about three months before this trial. She lived there with her aunt and uncle, Mr. and Mrs. Seth Taylor, upon whom she is dependent for support. She now has an apartment, where she and her children live. Mr. Wood is also in Alice. He does not live with her and the children, but has an apartment of his own. She and Mr. Wood are to be married when he secures a divorce. He has four children. She denied positively that she had lived with Mr. Wood or engaged in any immoral conduct with him. It was stated during oral argument that Mr. Wood had since secured his divorce and that he and Barbara are now married and living in Alice, Texas.
She has never been separated from her children and loves them very much, and they love her. She has always cared for them in every way. This testimony was corroborated by Barbara's aunt, Mrs. Seth Taylor, and other friends and neighbors in Alice, where Barbara had been residing for three months.
The order modifying the divorce decree was not entered until some two months after *Page 400 Barbara had left New Mexico, and it is a fair deduction from the evidence that it was not rendered until that time, though she had been informed by her lawyer that it was going to be rendered. She and Mr. Wood have been arrested upon a warrant of arrest issued out of the State of New Mexico, and have given bond to appear before a Justice of the Peace in Alice. If the State of Texas approves their extradition, they will have to return to New Mexico to answer the charges there. The record does not show them to be guilty of any crime in New Mexico, and they are therefore entitled to a presumption of innocence. When Barbara left New Mexico with her children she was lawfully in charge of them, and, so far as this record shows, was not inhibited in any way from taking them out of the State. The order changing the custody of the children was not filed in court until more than two months later. It is true, her lawyer told her that she was going to be deprived of the custody of her children, but the only evidence that they were ordered taken away from her is the order filed August 30, 1960.
She is the only mother the two children have ever known, and the father scarcely knows the little girl, because he left when she was only two weeks old, and has not seen her since, except upon a few short visits.
The trial court, after a hearing, ordered the care and custody of the children awarded to the mother, with the right of reasonable visition given to the father, from which judgment James V. Short, Jr., has prosecuted this appeal.
Appellant's first point is as follows:
"The Trial Court erred in awarding custody to the Appellee as the Court had no jurisdiction to do so or in the alternative, abused its discretion in taking jurisdiction."
We cannot agree that the District Court of Jim Wells County did not have jurisdiction to render the judgment which it did render herein. The jurisdiction of the court was invoked by appellant himself. He instituted the habeas corpus proceedings in the Texas Court. It is true that he might have invoked such jurisdiction for the purpose of determining the temporary custody of the children, if he had so desired, but he answered the cross-action of appellee raising the issue of permanent status or custody of the children, and eagerly sought a hearing on this matter. He stated he wanted the Texas Court to pass upon the permanent custody of the children, and he will not now be heard to contend that the court was without jurisdiction, and the court did not abuse its discretion in taking jurisdiction. Wicks v. Cox, 146 Tex. 489, 208 S.W.2d 876, 4 A.L.R.2d 1. Appellant admitted all necessary jurisdictional facts when he answered the cross-action and asked the court to proceed with a hearing on the permanent status of the children, without taking any exception or objection to the court's jurisdiction.
The case of Bevan v. Bevan, Tex.Civ.App., 283 S.W.2d 305, decided by this Court, is distinguishable from the case at bar. There it was the wife who fled to Texas with the children and tried to invoke the jurisdiction of the Texas Court. She did so while the suit in Oklahoma was still pending. The husband did not invoke the jurisdiction of the Texas Court, but objected and excepted to its jurisdiction. In the case at bar, neither the appellant nor the appellee lived in New Mexico at the time of its hearing. The hearing in New Mexico had been on June 22, 1960. This suit was filed on November 16, 1960, some five months later. In June, 1960, both appellant and appellee were residents of New Mexico, and appellant's mother, upon whom he was depending to help him rear the children, was also a resident of New Mexico. The children were also in New Mexico. Now appellee and the children are residing in Alice, Texas, and appellant has moved to Lincoln, Nebraska. If he could secure a judgment in Texas awarding the permanent custody of the children to him, he could take them to Nebraska at once and everything would *Page 401 be settled for the time being, but if he only succeeded in having the children returned to New Mexico there could still be a further hearing, as to whether conditions had changed since the entering of the modified decree in New Mexico. With all of this before him, he asked the Court in Alice, Texas, to hear the entire question of custody, and having received an adverse judgment he cannot now be heard to say he has changed his mind and wants a hearing in New Mexico. Knollhoff v. Norris, 152 Tex. 231, 256 S.W.2d 79; Goldsmith v. Salkey, 131 Tex. 139,112 S.W.2d 165, 116 A.L.R. 1293; Anderson v. Martin, Tex.Civ.App., 257 S.W.2d 347; Avenier v. Avenier, Tex.Civ.App., 216 S.W.2d 638; Black v. Adams, Tex.Civ.App.,214 S.W.2d 703.
Appellant's second point is as follows:
"The Trial Court erred in granting a change of custody as there were no change in conditions from the date of decree which would justify such an order or in the alternative, the Court abused its discretion in granting said order under the circumstances."
The trial court, in rendering the judgment that it did, necessarily found that there were changed conditions since the rendition of the New Mexico order modifying the original divorce decree, and that the best interest of these small children would require that their custody and care be given to their natural mother.
The facts above pointed out certainly justified the trial court in impliedly holding that there were changed conditions. Among other things, at the time the New Mexico decree was entered all parties, including the children, were in New Mexico. Appellant had available to him the assistance of his father and mother in caring for these children. Now all parties to this suit, including the children, do not live in New Mexico. Appellant and his mother both testified that the mother was willing to go to Lincoln, Nebraska, to help him get started with the children, but it is plain that he would have to hire some one to care for the children and leave them to the mercy of whomsoever he could employ. There is nothing in the record to show that the mother is an unfit person to have the care of her children. They love her and she loves them. Appellant left his wife and children when the little girl was two weeks old. He could be little more than a stranger to her. In the absence of a showing that the mother is positively disqualified to have the custody of her children of the tender ages of two and three years, she should be given their custody. Longoria v. Longoria, Tex.Civ.App., 324 S.W.2d 244; Adams v. Adams, Tex.Civ.App., 319 S.W.2d 414; Danache v. Danache, Tex.Civ.App., 296 S.W.2d 821; Rousseau v. Rousseau, Tex.Civ.App., 268 S.W.2d 556.
The trial court did not abuse its discretion in awarding the custody of these infant children to their mother.
The judgment is affirmed.