(dissenting).
I respectfully dissent, in part, from the conclusion reached by my colleagues herein. I would reverse the judgment of the trial court in so far as it held that it had no jurisdiction to hear the matter of custody of the older child, Patsy Jean Everson, and remand this part of the cause for trial on the merits; but I would affirm that part of the judgment that found no jurisdiction to hear the cause as to the younger child, Paula Kay, who was apparently in Oklahoma at the time of these proceedings.
In the first place I am not convinced that the judgment of the court that granted the then parties a divorce was not sufficient also to grant custody of the two children to the mother. That judgment recites that the parties had agreed that the defendant mother was to have the custody of the children with the right of the plaintiff father to see the children at all reasonable times and places. The judgment then ordered the plaintiff to contribute a certain *122sum monthly for the' support and maintenance of the children until further order of the court. While the judgment did not expressly approve the agreement as to custody or by precise wording grant custody of the children to the mother, such a judgment in Duff v. Collins, 225 S.W.2d 213 (Civ. App., Ref., N.R.E.) apparently was construed as an award of custody. The parties here treated it as such, and the father (appellant here) alleges in his “Petition for Change of Custody” that in the decree of the divorce court “the said defendant, Nova Noleta Boydston (then Everson) was granted the custody of the two minor children”. No deficiency of the decree in this respect was ever raised by the parties, even on this appeal.,
If such decree served to grant custody of the children to the mother, then under the authority of Peacock v. Bradshaw, 145 Tex. 68, 194 S.W.2d 551 (1946) the domicile of the children became the mother’s domicile, which under the facts of' this case was satisfactorily shown to be in Oklahoma. The same authority further-held-that-jurisdiction to award (and probably to change) custody of a minor child depended upon the domicile of the child. This rule was enlarged, however, by the holding of ’the Supreme Court in Wicks v. Cox, 146 Tex. 489, 208 S.W.2d 876, 4 A.L.R.2d 1 (1948),' which was to--the effect that our courts need not decline- jurisdiction in custody cases whenever it appeared that the legal domicile of the child was in another state, and further, that technical legal domicile of the child in Texas was not a sine qua non of child custody jurisdiction on the part of our courts. Worden v. Worden, 148 Tex. 356, 224 S.W.2d 187 (1949) held that other matters to be considered, besides domicile, included physical presence before the court óf the child and contesting parties, and Ex parte Birmingham, 150 Tex. 595, 244 S.W.2d 977 (1952) held that:
“ * * * 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.” (Citing cases). (Emphasis supplied).
And DeLaughter v. DeLaughter, Tex.Civ.App., 370 S.W.2d 207 (1963), (Ref., N.R.E.), which reviewed the various authorities,, adds:
“It is our further view that where tiie only basis for jurisdiction is the fact of the physical presence of the child in this state, that such physical presence relates not merely alone to the time when the custody suit was filed but also in particular relates to the time of the hearing by the court.” (Emphasis supplied).
Applying these authorities, then, to the facts of the present case as I deem them to be from the record, I would hold that the Texas court had jurisdiction to hear the matter of custody as to Patsy Jean Everson, the elder child who was physically present in Texas even though her technical domicile was probably in Oklahoma, and I would reverse the judgment in this cause in this respect and remand the same to the trial court; bpt I would affirm the finding of lack of jurisdiction of the trial court as to Paula Kay, who I say was neither domiciled nor actually present in Texas at the time of these' proceedings in the trial court. Another quotation from the Birmingham case, supra, emphasizes my position here:
“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 truthfuly 'alleged relator to . have taken them 'away, 'he had power , as custodian to do as much, and wheth- ' *123er 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.”
However, if it is to be held that the divorce decree did ' not effectively grant custody of the children to their mother, the ultimate result herein would be the same. If there was no award of custody, the mother’s rights, until adjudicated otherwise, would at least be equal in law to those of the father. No suit of any kind was pending at the time the mother refused to allow Paula Kay to return to Texas. The mother’s refusal was nothing more than was her right, even though it might result in depriving a Texas court of jurisdiction over the child.
I must add that I am in entire accord with the expression of the majority of this court that the welfare of the children in this, as in any other custody matter, is of primary consideration. But I am constrained to follow the pronouncements of our Supreme Court in such matters, until they may be altered, in order to effect standardized rules of law and procedure and avoid, in so far as possible, a conflict of jurisdictions. Nor do I fully agree with the finding of the majority of this court, inherent in their decision, that the Texas court is necessarily in a better position to judge of the best interests and welfare of these children than an appropriate court in Oklahoma. The nature of this suit is for the award of custody because of changed conditions since the time of the original divorce decree. In support of his prayer, the father alleges that the mother, during the time that the children were with her (which was during the time that they were in Oklahoma), was guilty of certain misconduct toward and neglect of the children, and that she kept them in an environment that was not good for the children. Surely this must be proved, in part at least, by persons resident in Oklahoma, or acts which took place there, which matters are more readily presentable to an Oklahoma court. Furthermore, it may be said in criticism of the father herein that, after he presumably had. come into knowledge of the circumstances alleged in his petition, he allowed the children to be returned to Oklahoma on “visits” to their mother, and apparently made no attempt while the children were with him to remove them from the alleged harmful influences of which he complains, such as by requesting a court to re-examine the issue of custody because of changed conditions.
As stated, I would reverse in part and remand with instructions, and affirm in part.