Ex parte Eaton
Decision Date | 05 November 1952 |
Docket Number | No. A-3793,A-3793 |
Citation | 151 Tex. 581,252 S.W.2d 557 |
Parties | Ex parte EATON. |
Court | Texas Supreme Court |
Horace H. Shelton, Austin, for relator.
Baldwin & Votaw, Beaumont, for respondent, C. H. Meyer.
Mrs. Elizabeth Boren Eaton, relator herein filed a petition in this Court for a writ of habeas corpus, which was granted on August 5, 1952. She alleged that she was imprisoned for contempt of the Second District Court of Cherokee County in failing to comply with the order of the court issued in Cause No. 17,787, styled John Parker Eaton v. Elizabeth Boren Eaton, dated May 10, 1950. The cause was a divorce proceeding, instituted by John Parker Eaton, which resulted in relator's obtaining a divorce on her cross-action. It was ordered that relator be awarded the care, custody, and control of the tow minor children, John Parker Eaton, Jr., nine years of age, and James Foster Eaton, seven years of age, at all times, with certain exceptions, which are as follows: That during the year 1950 and beginning at the end of the first week of the public school vacation John Parker Eaton was to have custody of the children for a continuous period of six weeks. For each and every year thereafter relator was to have custody, except for a period of time beginning one week after the close of the regular public school year and ending one week prior to the beginning of the subsequent regular school year. During that period John Parker Eaton was to have exclusive custody of the children, except for a period of ten days, to be selected by relator.
On May 8, 1951, that portion of the divorce decree concerning the custody of the children was modified so that the period of time during the school vacation during which John Parker Eaton was to have custody of the children was to begin two weeks after the close of the school year, and to end two weeks prior to the beginning of the subsequent school year. During this period John Parker Eaton was to have exclusive custody of the children.
Relator attacks this modified order as being void, on the ground that it was an agreed judgment and was made by her attorney without her consent. Relator's attorney at that time stated in an affidavit in the instant record that he was not certain whether the modified judgment was procured by him at the instigation of relator or of her father.
After the divorce was granted relator moved to Abilene, Taylor County, Texas, where she has since resided with the two minor children; and John Parker Eaton moved to Jefferson County, where he now resides. On May 10, 1952, relator brought suit in the District Court of Taylor County, in Cause No. 18,234-A, seeking full custody of the minor children, and alleging a change in conditions since the entry of the judgment in Cause No. 17,787, granting the divorce, and requesting that a temporary injunction be issued restraining John Parker Eaton from having custody of the two minor children during the pendency of the suit. Relator alleged that since the entry of the original decree on May 10, 1950, in Cause No. 17,787, the conditions have changed, and filed a verified petition alleging such changes, as follows:
'Plaintiff would show that since the entry of said judgment the conditions have so changed that it would be to the best interest of said minor children that she retain full and complete custody of said children the whole year round and that it would be dangerous to permit the defendant to have custody of said children during the summer months and that it would not be to the best interest of said children and plaintiff asks that the order be changed and modified where as she shall keep and retain full and complete custody of said children the whole year round.
This record shows that on May 10, 1952, the District Judge of the 42nd District Court of Taylor County issued the following order:
'Came on to be heard and in chambers the petition in the above entitled cause this 10th day of May, 1952, and the Court having considered same is of the opinion that a temporary injunction should be issued to prevent the defendant from interfering with plaintiff's custody until a hearing on this cause and the defendant is ordered not to interfere with plaintiff's custody of said children and is further ordered to appear herein on the 31st day of May, 1952, at 10 a. m. to show cause, if any, why said temporary injunction should not be issued.
The record before us does not show what disposition was made of the foregoing order. However, John Parker Eaton filed a plea of privilege, and after a hearing on such plea the district judge entered an order, dated May 31, 1952, transferring the cause to the Criminal District Court of Jefferson County, Texas, and all papers in the cause were transferred to the district clerk of that court.
By an order of the District Judge of the Criminal District Court of Jefferson County, in Cause No. 33,201-C, dated July 2, 1952, John Parker Eaton was temporarily enjoined from taking any further...
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