Allison v. Ovens

• Decision Date: 29 December 1966
• Docket Number: CA-CIV,No. 1,1
• Parties: Chyrl Merth (Ovens) ALLISON, Appellant, v. James M. OVENS, Jr., Appellee. 310.
• Court: Arizona Court of Appeals

Page 929

421 P.2d 929

4 Ariz.App. 496

Chyrl Merth (Ovens) ALLISON, Appellant, v. James M. OVENS, Jr., Appellee.

No. 1 CA-CIV 310.

Court of Appeals of Arizona.

Dec. 29, 1966.

Rehearing Denied Jan. 26, 1967.

John J. Dickinson, Phoenix, for appellant

Charles M. Brewer, Jerry H. Glenn, Herbert Mallamo, Phoenix, for appellee.

CAMERON, Judge.

This is an appeal from the judgment of the trial court modifying a previous decree of divorce respecting the custody of three minor children of Dr. James M. Ovens, Jr., and Chyrl Merth (Ovens) Allison. The three children were awarded to the father and the mother appeals regarding the change of custody as to two of the three children.

We are called upon to determine:

(1). Whether the trial court erred in considering evidence admitted in a prior hearing and adjudication of custody.

(2). Whether the trial court erred in refusing to suspend the rule excluding witnesses from testifying who have sat in the courtroom and watched the proceedings.

(3). Whether the trial judge erred by basing his judgment on facts which the appellant alleges he could not consider under the 1st and 14th Amendments to the Constitution of the United States and Article 20, Part First, of the Arizona Constitution, A.R.S.

(4). Whether the trial court erred and abused its discretion in the amount of attorney's fees awarded to the respondent-mother.

The facts necessary for a determination of this matter are substantially as follows: On 12 December 1958, the 17 year marriage of Chyrl and James Ovens was ended by divorce. Pursuant to the decree of divorce, the plaintiff and mother, Chyrl Ovens, was given custody of the 10 children with the exception of Michael Ovens, then 16 years old, who was granted permission to live with his father. The defendant and father was ordered to contribute $100.00 per month for the support of each child living with the mother.

On the day her divorce was final, the plaintiff was married in Mexico to one Andre Gerber. She later divorced Gerber and married R. J. Allison, her present husband. The defendant has also remarried.

In 1959, defendant petitioned for change of custody which was denied. The court in that hearing noted that:

'The rancor between the parties themselves has been the principal factor in the difficulties that have arisen.'

Again, in 1963, defendant petitioned for a change of custody of the children, and this time he was awarded custody of three of the children who had previously elected to live with him.

In 1965, defendant again petitioned for a change of custody, and the determination of that matter in the Maricopa County Superior Court gives rise to this appeal. By emancipation, court action, and by the expressed desires of the children themselves, the custody of the children had been changed since the original decree such that at the time of the hearing; two were married and residing outside the home; four were residing with the defendant-father; two were residing with the plaintiff-mother; and two, the subject of this appeal, are residing with the plaintiff pending determination of the matter.

Trial was held in Maricopa County Superior Court in June and August of 1965, and the court, on 13 September 1965, awarded the care, custody and control of the three minor children to the father. The judgment contained the following provisions:

'It is further ordered, adjudged and decreed that pending any appeal that may be filed that the care, custody and control of the minor children Terrance, James Brian and Kevin be awarded to the defendant father in furtherance of any appeal that might be taken herein in order to guard the health, safety and welfare of the heretofore mentioned children until final determination may be made.'

The mother immediately filed a notice of appeal and after several motions and writs, the trial court set a supersedeas bond in the amount of $50,000.00. The mother petitioned this Court for a writ of certiorari asking that we order the trial court to allow the mother to post a lesser bond and stay the order changing custody pending appeal. We denied the petition and the mother filed a writ of certiorari with the Arizona Supreme Court and they, in the case of Allison v. Chatwin, 99 Ariz. 99, 407 P.2d 69 (1965), reduced the bond to $4,000.00 and stated:

'It is not within the power of the lower court to award custody of children temporarily pending appeal.' 99 Ariz. pages 102, 103, 407 P.2d page 71.

And:

'When an appeal is filed in a case in which custody of children is changed by the lower court, it is the duty of the court upon application to fix a supersedeas bond, the purpose of which is to preserve the status quo of the case pending appeal.' Allison v. Chatwin, supra, 99 Ariz. page 102, 407 P.2d page 71.

This decision (Allison v. Chatwin, supra) of the Supreme Court of Arizona was in accord with previous decisions of that Court commencing with Gotthelf v. Fickett, 37 Ariz. 322, 294 P. 837 (1930), in which it has been held that posting of a supersedeas bond stays execution pending appeal of a judgment ordering change of custody of children. This Court has no quarrel with this rule of law as it applies to a change of custody in which the trial court has not found the home from which the children are being removed is detrimental to the health and welfare of the said children. In such a situation, no great damage is likely to be done to the children pending appeal. The situation is quite different, however, when, as in this case, the trial court has found that in order to 'guard the health, safety, and welfare' of the children, the children should be removed from a detrimental environment. Under these circumstances, this Court would question the wisdom in allowing the children to remain in this potentially damaging environment pending appeal by the posting of a supersedeas bond and we are also unable to say that a bond in any amount will suffice to repair the damage that may be done to children kept in the atmosphere described in this case for the period of time it takes to consider a matter on appeal, even though the matter may be accelerated on our calendar as was done here.

The $4,000.00 bond was posted and the two children in question have remained

with the mother pending determination of this matter on appeal. CONSIDERATION BY THE TRIAL JUDGE OF EVIDENCE UPON WHICH A PRIOR ADJUDICATION OF CUSTODY HAD BEEN MADE

The appellant contends that the trial court could not consider testimony which had been introduced in a previous custody hearing. Appellant contends that in considering the question of whether there has been a change of circumstances the doctrine of res judicata must be applied. Appellant cites the following:

'The change of circumstances rule as a limitation on modification of a divorce decree is one aspect of the principle of res judicata (citations). The court, in issuing the original decree, found that the arrangement, therein set out was for the best interests of the child. No appeal having been taken, this decision became final, Upon the facts then before the court, and no alteration will be made without a showing that the factual situation has changed to such an extent that the original decree can no longer reasonably be expected to serve the purpose.' Ward v. Ward, 88 Ariz. 130, 134, 135, 353 P.2d 895, 898 (1960).

The rule set forth in Ward v. Ward, op cit, and other cases that the courts will not consider a change in custody without showing a sufficient change in circumstances But the fact the prior determination of custody by the court is res judicata as to the circumstances considered by the court at that previous time does not mean that evidence introduced at the prior hearing is necessarily inadmissible at subsequent hearings. Indeed, some matters will have to be shown the court in order that it may determine if there is in fact a change of conditions since the prior hearings.

is sound in that generally the best interests of the minor children are served by keeping them in the same environment and surroundings during their childhood, and the courts should not change the custody of the children with each slight change of circumstances.

In the instant case, the court admitted evidence establishing that both Gerber (plaintiff's second husband) and Mr. Allison (her present husband) possessed criminal records, in order to show what defendant's attorney called, 'the propensity of the witness (plaintiff) for men of Mr. Gerber's class.' The trial court in its findings stated:

'The plaintiff-respondent since her divorce from the defendant has developed a pattern characterized by associating with and did marry two men with criminal records and the presence of the present stepfather is not conducive to developing minors into good citizens and is detrimental to their individual welfare.'

The trier of fact was being asked to and did draw an inference from the fact that she associated with people who had a criminal record and that she married two such men. We think it was within the broad discretion of the trial court to admit such evidence in determining what would be most beneficial for the children.

REFUSAL OF THE TRIAL COURT TO RELAX THE 'RULE' EXCLUDING WITNESSES

At the commencement of the proceeding, the attorney for plaintiff asked that the 'rule' be invoked requiring that those who would be witnesses remain outside the courtroom until called and not disclose or discuss their testimony with anyone except counsel.

A private investigator, Geroge Brooks, was called by the defendant and testified that on two occasions he saw one of the Ovens girls in the company of her stepfather Allison in what he described as dating situations. On rebuttal, and to the alleged surprise of plaintiff's counsel, a second investigator testified that he and Brooks on one occasion had gone to the Adams Hotel in an attempt to serve a subpoena. Under circumstances that are not quite clear, they discovered Mr. Allison and his...