Harrell v. Harrell

Maj o rity Opinion

TUNKS, Chief Justice.

This appeal relates to a controversy between a mother, Carlyeen Harrell, and grandparents, Mr. and Mrs. H. M. Harrell, Sr., the parents of the father, Clayton M. Harrell, Sr., over the custody of two children. The two children in question are boys, one having been born in 1960 and the other in 1961. The proceeding is the most recent of a protracted series of judicial proceedings beginning in 1963. Discussion of the questions here involved requires that the history of this litigation be set forth in some detail.

On June 26, 1963, in Cause No. 72887, in the Court of Domestic Relations of Nueces County, Texas, Carlyeen Harrell, appellant here, was granted a divorce from Clayton M. Harrell, Sr., and was awarded the care, custody and control of the subject children.

In October, 1963, the appellant left the children with the paternal grandparents, appellees, and took an extended overseas trip, apparently a vacation trip. While she was gone, on November 22, 1963, the grandparents filed a petition in the Court of Domestic Relations No. 4, Harris County, Texas, sitting as Juvenile Court, seeking an adjudication of the dependency and an order placing the custody of the two children in the petitioning grandparents. This petition recited that the father of the children joined therein, but he did not sign the petition and nothing else in the record confirms his joinder. On December 6, 1963, judgment was rendered by the juve*372nile court adjudging the children dependent, terminating the parental rights of the mother and awarding custody to the paternal grandparents. The court further, for some unexplained reason, ordered “that the childrens’ residence shall be maintained in Harris County, Texas.” The decree is silent as to any disposition of the parental rights of the childrens’ father.

On May 4, 1964, Carlyeen Harrell, filed Cause No. 643,314 in the Court of Domestic Relations No. 4 of Harris County, Texas. The petition there filed is designated “Petition for Habeas Corpus.” It alleges that the two children are “illegally confined and restrained of their liberty” by the grandparents “because” the grandparents “fraudulently conspired to have subject minors declared dependent and neglected childrenthat the grandparents encouraged her (the mother) to take the overseas trip and said that they would take care of the children while she was gone; that the grandparents have “refused to permit her to have custody of her children and have taken the said minors by force and violence against the express desires and wishes of the petitionerthat the grandparents “are unfit to have the care and custody of the said minors;” that she, the petitioner, “is the mother of said minors; and the petitioner is a person lawfully entitled to the custody of said minors because in Cause No. 72887, Carlyeen Harrell v. Clayton M. Harrell, Sr., in the Court of Domestic Relations in Nueces County, Texas, on June 26, 1963, petitioner was awarded the care, custody and control of said minors by a judgment of said court, duly rendered and entered, and such judgment is still ■ in full force and effect and has not been altered or changed by said court or otherwise; and that under the terms and conditions of said judgment the petitioner is entitled to the custody of said minors.” (Emphasis ours).

The petitioner further alleged:

“On or about November 29, 1963, after respondents had conspired to have petitioner take her trip, the respondents caused a Petition to be filed in Cause No. 12,670, In Re: Clayton M. Harrell, Jr. and Byron Harrell, In the Court of Domestic Relations No. 4 of Harris County, Texas, to have the subject minors declared dependent and neglected children, and for grounds thereof alleged that the mother had gone to India and was not caring for her children, when respondents well knew that they were responsible for the departure of petitioner and had conspired to defraud her of her children, and thus the Judgment entered on December 6, 1963 in that cause is void for all purposes.”

The prayer of that petition was as follows:

“WHEREFORE, petitioner prays that this Court grant and issue a Writ of Ha-beas Corpus forthwith and that the said CLAYTON M. HARRELL, JR. and BYRON HARRELL, minors, be brought without delay before this Court to the end that the said minors may be discharged from such illegal confinement and restraint and that the custody of the said CLAYTON M. HARRELL, JR. and BYRON HARRELL be re-affirmed in petitioner, their natural mother, and for such other and general relief, at law and in equity, to which this petitioner may show herself to be entitled.”

The grandparents filed a reply to the petition for habeas corpus. They alleged that the children were, by the judgment of the juvenile court, on December 6, 1963, adjudged dependent; that even before the divorce of the childrens’ parents they were left in the grandparents’ home; on occasion the mother, too, had stayed in the grandparents’ home and that when she did so she failed to give the children parental care; that they, the grandparents, did not induce the mother to take the overseas trip nor pay her expenses thereon, but rather, they paid a balance due on some household furniture whereupon the mother sold the furniture and used the proceeds of sale to *373take a trip to India to study Yoga; and that a juvenile court in Florida had filed charges against the mother for failure to give proper parental care to two other children of a prior marriage pursuant to which charge those other children were placed in the care of some people named Chandler.

The grandparents prayed that the mother’s petition be dismissed and for general relief.

On June 29, 1964, the Court of Domestic Relations No. 4 in Harris County, Texas, rendered judgment in this Cause No. 643,-314 on the docket of that court. The judgment recites a service, return, the production of the children before the court, the hearing of evidence from both sides and the conclusion of the court “that said Writ of Habeas Corpus should be denied.” The judgment of the court then recites:

“IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that Writ of Habeas Corpus of Petitioner, Carlyeen Harrell, for the discharge of such minors from alleged illegal confinement and restraint and for custody of said minors to be re-affirmed to Petitioner, be in all things denied, to which Order the Petitioner, Carlyeen Harrell, in open Court excepted.”

The mother did not appeal from this judgment.

On June 11, 1965, in Cause No. 672,717, in the Court of Domestic Relations No. 4, in Harris County, Texas, the Court rendered a decree granting the grandparents’ petition for the adoption of two children. In that decree it is recited, “that the written consent of all parties required by law has been obtained.”

On June 19, 1967, the judicial proceeding from which this appeal was taken was filed as a motion in Cause No. 12,670 in the Court of Domestic Relations No. 4, Harris County, Texas, sitting as Juvenile Court. That is the suit originally filed by the grandparents in 1963 seeking the adjudication of dependency. In this motion the mother alleged that the grandparents had induced her to take the overseas trip in October, 1963, and soon after she left, without any notice to her or waiver of such notice, instituted the dependency proceedings. (This is the first time, almost four years after the dependency decree, that the mother alleged that she had no notice and had not waived notice. No such allegation appears in her 1964 petition for Writ of Habeas Corpus). She further alleged that because of the lack of notice, the 1963 decree of dependency was void and that the 1965 decree of adoption was also rendered without notice to her and without her knowledge. Her prayer is that the 1963 dependency decree and the 1965 adoption decree be set aside and that she be awarded custody of the children.

The parents, by way of answer to the mother’s motion to set aside, filed what is designated a plea in abatement wherein it is pleaded “that the motion to set aside judgment is in all things barred by the doctrine of res judicata in that the identical issues, involving the same parties, were raised and disposed of” in the 1964 habeas corpus proceedings. The pleading also made reference to the 1965 adoption decree. Attached to the pleading and referred to as exhibits were the 1964 petition for habeas corpus, the answer to the 1964 petition for habeas corpus, the June 29, 1964 order denying the habeas corpus petition and the 1965 adoption decree. It is to be noted that all of the exhibits were records of proceedings in the Court of Domestic Relations No. 4 in Harris County, Texas, sitting as such Domestic Relations Court, whereas the instant proceedings is one in the Court of Domestic Relations No. 4, sitting as Juvenile Court.

The only record before us is the transcript of the proceeding in the Cause No. 12,670 on the docket of the Court of Domestic Relations No. 4 in Harris County, Texas, sitting as Juvenile Court. The pleadings and orders from the Causes No. 643,341 (the habeas corpus) and No. 672,-712 (the adoption) on the docket of Court *374of Domestic Relations No. 4 sitting as Domestic Relations Court are before us because they were attached as exhibits to the appellee’s plea in abatement in this cause.

It is to be noted that the Honorable Arthur C. Lesher, Jr., was, at all material times, Judge of the Court of Domestic Relations No. 4 in Harris County, Texas, and signed all of the judgments and orders in question. We make particular note of the fact that, while the 1964 order denying the mother’s prayer for reaffirmance of her custody in the habeas corpus proceeding recited the hearing of evidence, the statement of facts in that proceeding is not before us. Thus, the only facts we have before us are those which we are permitted to assume from the recitations in the pleadings, orders and judgments in the transcript.

One important fact question not specifically answered by the record is whether the mother did or did not have notice or waive notice of the 1963 dependency hearing. The judgment there made no recitation as to whether she did or did not have notice. In the 1964 habeas corpus proceeding, the mother did not allege that her parental rights were terminated without notice to her. The testimony in that proceeding was not transcribed. There is no admission, either in any of the pleadings or the brief which we can consider as establishing the absence of such notice. Obviously, the recitations of no notice in the appellant’s motion to set aside filed in 1967, some four years later, and the recitations in her brief, do not establish this fact. However, both parties, in their briefs, treat the 1963 judgment as having been rendered to the mother and we shall so treat it in this opinion.

We are of the opinion that the controlling question in this case is the construction of the 1964 habeas corpus proceedings and the decree therein. If that was an attack on the trial court’s earlier order terminating the mother’s parental rights and awarding custody to the grandparents, resulting in a valid judgment overruling such attack and confirming the earlier order, then it was res judicata of the issues raised in appellant’s 1967 “Motion to Set Aside Judgment.” In other words, were the issues raised by appellant’s “Motion to Set Aside Judgment” raised and disposed of in the 1964 habeas corpus proceeding? The majority of the court are of the opinion that that question must be answered in the affirmative. The majority of the court are further of the opinion that these children have been the innocent pawns of this bitter controversy long enough and that this litigation should be considered as having ended in a final judgment establishing for them the deserved security of a permanent custody.

In order that this opinion not be confusing as a precedent, we note that in appellant’s brief and pleading it is recited that the father of these children is now deceased. We are assuming that fact to be true.

Further, we attach no significance to the fact that in this litigation the Court of Domestic Relations No. 4 in Harris County, Texas, sometimes sat as Juvenile Court and at other times as a Court of Domestic Relations. Under Articles 2338-11, 2338-11a and 2338-18, Vernon’s Ann.Tex.Civ. St., the Harris County Court of Domestic Relations No. 4 was authorized to act as Juvenile Court for Harris County and the Judge of the Domestic Relations Court was authorized to sit as Judge of the Juvenile Court of Harris County when so designated by the Juvenile Board of Harris County. Either the Court of Domestic Relations No. 4 or the Juvenile Court of Harris County, Texas, had jurisdiction to render all of the decrees, judgments and orders involved in this proceeding. See Ex parte McLeroy, Tex.Civ.App., 318 S.W.2d 482, no writ hist.

The appellant argues that the 1963 dependency judgment was void because she was not served with notice. Article 2332, V.A.T.S., specifically provides *375that in a dependency proceeding, citation need not be served on a parent who is at the time outside of the county wherein the proceeding is being heard. Where, as here, the parent was outside the county and is not served with notice, the judgment is not void, but is valid, subject only to the parent’s right to a subsequent full hearing on the issue of dependency. DeWitt v. Brooks, 143 Tex. 122, 182 S.W.2d 687, denied 325 U.S. 862, 65 S.Ct. 1196, 89 L.Ed. 1983; Reina v. State, Tex.Civ.App., 377 S.W.2d 838, err. ref.; Hull v. Hull, Tex. Civ.App., 332 S.W.2d 758, no writ hist.; Broome v. Edna Gladney Home, Tex.Civ. App., 295 S.W.2d 266, no writ hist. The hearing afforded appellant in June, 1964, lent validity to the prior judgment of dependency despite the fact that the prior judgment was rendered without notice to appellant. No appeal having been perfected from the June 29, 1964 judgment, it became final under Rule 329b, Texas Rules of Civil Procedure.

The court’s order dated June 29, 1964, does not specifically recite that the trial court’s former judgment of dependency is confirmed, nor does it specifically recite that the subject children are then and there adjudged to be dependent. However, when that judgment is read in connection with the pleading of the parties, there would seem to be no doubt of its confirmation of the prior judgment of dependency. In construing a judgment in a former suit, which former judgment is alleged to be res judicata, to determine the issues involved and disposed of, the pleadings of the former suit must be considered. Davis v. First National Bank of Waco (Com.App., opinion adopted), 139 Tex. 36, 161 S.W.2d 467, 144 A.L.R. 1. It is apparent that appellant’s “Petition for Habeas Corpus” summarized above, raised that issue of the validity of the prior adjudication of dependency and that appellees’ answer to that pleading asserted the fact of dependency. Thus the issue of dependency was adjudicated by the court in 1964 and (that judgment having become final) is res judicata as to the status of dependency as of that time.

Having held that the 1964 proceedings was directed toward setting aside the 1963 adjudication of dependency, we also hold that the 1967 pleading was directed to the same issues. The appellant’s trial pleading was styled, “First Amended Motion to Set Aside Judgment.” It’s allegations as to the basis for the invalidity of the 1963 judgment of dependency are quite similar to those set out in the 1964 “Petition for Ha-beas Corpus,” except that she, for the first time, alleged that she had no notice of the 1963 hearing. In the appellant’s statement of the case in its brief, this suit is designated as follows:

“This is an appeal from the Juvenile Court of Harris County, Texas, the Honorable Arthur Lesher, presiding, wherein appellant seeks to set aside prior judgments of the same court declaring the subject children dependent, denying appellant’s application for writ of Ha-beas Corpus and permitting adoption of the children by appellees.”

It is true that appellant alleged in general terms that there had been a change in condition since the 1964 judgment, the only change alleged being in the fact that she established a permanent home in Florida and was in an improved financial condition. But her prayer was, “That the judgment of this court entered in this cause on December 6, 1963, and the decree of adoption entered in Cause No. 672,717, by the Court of Domestic Relations No. 4 of Harris County, Texas, on June 11, 1965, be set aside and held for naught and that she be forthwith awarded actual custody of” the children in question.

We realize the fact that an adjudication as to custody of a child is res judi-cata only as to the facts and conditions existing as of the date of the adjudication and does not bar a subsequent petition for change of custody if there has been a significant change of conditions relating to *376the welfare of the child. We believe that a fair construction of the pleading of the appellant, however, requires that this case be considered an attack on prior judgments and not an attempt to change custody because of changed conditions.

In Ogletree v. Crates (Tex.Sup.Ct.), 363 S.W.2d 431, the following facts were involved: Parents were divorced in Alabama in 1957. The mother made an agreement, approved by the court, that the father have custody of a son, subject to the mother’s right of visitation during the period of June 15 to August 15 of each year. In 1960, the father and son having moved to Harris County, the mother filed suit in the Court of Domestic Relations of Harris County, seeking a change of custody because of changed conditions. The relief sought was denied. In 1961, the mother obtained possession for the two-month visitation period between June 15 and August 15. At the end of that period, she refused to return the child to the father. The father filed a habeas corpus proceeding in Aransas County where the mother and child resided. The mother, by cross action, sought to set aside the Alabama decree and to recover custody. Her attack on the Alabama judgment was on the allegation that her agreement therein as to custody was obtained through duress and fraud. The district court rendered judgment for the mother and the Court of Civil Appeals affirmed. The Supreme Court reversed and rendered the judgment for the father holding both the Alabama judgment and the judgment of the Harris County Court of Domestic Relations to be res judi-cata barring the recovery sought by the mother in her cross action. The court said, “The rule of res judicata in Texas bars litigation of all issues connected with a cause of action or defense which, with the use of diligence, might have been tried in a former trial, as well as those which were actually tried.”

In a statement of the law as to res judi-cata in child custody matters, and the policy behind such law, the court further said, at page 436 :

“There may be a technical distinction between a suit to obtain custody and possession of a minor child through modification of a final judgment and a suit to obtain custody and possession of the child by setting aside a final judgment, but the broad cause of action and the relief sought in both suits are the same. The suit in each instance tests the rights of the parties to custody of the child and the only pertinent inquiry is the best interests of the child. As a matter of public policy there should be a high degree of stability in the home and surroundings of a young child, and, in the absence of materially changed conditions, the disturbing influence of constant re-litigation should be discouraged. Once a final judgment of custody is rendered, a subsequent suit to modify or to avoid the judgment should be res judicata of all causes of action which, with diligence, could have been asserted in the suit as a basis for obtaining custody and possession of the child.
“The wisdom of the rule can be no better illustrated than by the history of the struggle for this child’s custody. On two occasions, in Birmingham in 1958 and in Houston in 1960, Mrs. Ogletree has affirmed the validity of the 1957 judgment of the Alabama court and sought its modification. Now, in a third suit, she seeks to assert the invalidity of the judgment on the basis of facts fully known to her when the two prior suits were filed and tried. There should be an end to litigation of this type. We hold that respondents’ effort to set aside the 1957 judgment of the Alabama Circuit Court on the ground that Mrs. Crates’ signature to the agreement made the basis of that judgment was procured by duress and fraud is barred by the rule of res judicata.”

We are of the opinion that the validity of the 1963 judgment holding the children *377dependent and terminating the appellant’s parental rights was adjudicated and became final in the 1964 Habeas Corpus proceeding. If we are in error in the conclusion, certain it was a cause of action which “with diligence, could have been asserted”' in that suit and, in accordance with the above authority, the 1964 judgment is res judicata of the issues involved in this proceeding. See also Texas Employers Ins. Co. v. Rampy (Tex.Sup.Ct.), 392 S.W.2d 350; Vance v. Wilson (Tex.Sup.Ct.), 382 S.W.2d 107.

Appellant points out that the pleadings filed by appellees show that when she left for her overseas trip, she made ample provisions for the care of the children because she left them in the care of the grandparents — the appellees. In her brief appellant says, “Therefore, there were no pleadings to sustain the dependency judgment and it is fundamentally erroneous and void.” In Hendricks v. Curry (Tex.Sup.Ct.), 401 S.W.2d 796, it was held that a parent could not be held to have abandoned a child by delivery of its possession to proposed adoptive parents. If this were a direct appeal from the 1964 judgment of the trial and if the record showed that the trial court had based its judgment terminating the mother’s care upon the conclusion that she abandoned it when she left it with the grandparents, the Hendricks case would be controlling. This is not an appeal from the 1964 judgment. That judgment became final because there was no appeal. When the mother filed the habeas corpus petition and the children were brought before the court, the court acquired jurisdiction over them. Herrera v. Herrera (Tex.Sup.Ct.), 409 S.W.2d 395. As we have held above, the judgment was not void. We have no transcript of the testimony. No findings of fact and conclusions of law were requested or made. Even if this were a timely appeal from the 1964 judgment, there is nothing in the record which would permit us to hold that the trial court abused its discretion in refusing to set aside this 1963 judgment adjudicating the children dependent and terminating the mother’s parental rights. Herrera v. Herrera, supra; DeWitt v. Brooks, supra; Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787; McLean v. Lewis, Tex.Civ.App., 376 S.W.2d 428, err. ref., n.r.e.

What we have said concerning the validity of the trial court’s judgment of the dependency and termination of the mother’s parental rights disposes of the question as to the validity of the June 11, 1965 adoption decree. Since the mother’s parental rights had been terminated, her consent to the adoption was not necessary. Article 46a, Sec. 6, V.A.T.S.

The judgment of the trial court sustaining the appellees’ plea of res judicata is affirmed.

Affirmed.