Ex parte Lillard

• Decision Date: 18 June 1958
• Docket Number: No. A-6835,A-6835
• Citation: 159 Tex. 18,314 S.W.2d 800
• Parties: Ex parte Lee LILLARD.
• Court: Texas Supreme Court

Page 800

314 S.W.2d 800

159 Tex. 18

Ex parte Lee LILLARD.

No. A-6835.

Supreme Court of Texas.

June 18, 1958.

Rehearing Denied July 23, 1958.

Harris & Reeves, Arlington, Ft. Worth, for relator.

Alfred M. Clyde and Eva Barnes, Ft. Worth, for respondent.

NORVELL, Justice.

On the 25th of April, 1958, the Judge of the District Court of Tarrant County, 153rd Judicial District, entered an order in Cause No. 4965-C on the docket of said court, styled Imagene Lillard v. Lee Lillard and wife, Jean Lillard, in which he found that Lee Lillard had violated a prior order of said court dated June 7, 1957, relating to the custody of John S. Lillard, Jr., the five-year-old minor son of Imagene Lillard and a nephew of Lee Lillard. It was accordingly ordered that said Lillard be held in contempt of court and committed to the county jail of Tarrant County for a period of three days and 'as long thereafter and until such time thereafter as the said Lee Lillard will fully and completely purge himself from contempt of court * * *.'

This Court granted the application for writ of habeas corpus, and admitted Lillard to bail pending a hearing of the cause.

The relator will be ordered discharged form the custody of the Sheriff of Tarrant County, Texas as we are of the opinion that the District Court of Tarrant County, Texas, was without jurisdiction to render the order of June 7, 1957, because of a prior attaching and exclusive jurisdiction of the Juvenile District Court of Dallas County, Texas, to fix and determine the custodial status of the minor John S. Lillard, Jr. Ex parte Eaton, 151 Tex. 581, 252 S.W.2d 557

The judicial history of the present controversy is somewhat complicated and may be best understood by setting forth the pertinent events in chronological order.

On February 15, 1956, plaintiff Imagene Lillard was granted a divorce from John S. Lillard in Cause No. 6304-G/J on the docket of the Juvenile District Court of Dallas County, Texas, hereafter referred to as the Dallas Court. That part of the decree relating to the custody of the minor son of the parties was as follows:

'It is further ordered, adjudged and decreed that Plaintiff be granted custody of the child, John S. Lillard, Jr., as long as the child is left in the home of Mr. and Mrs. Lee Lillard of Arlington, Texas. It is ordered by this Court that the said child remain in the home of Mr. and Mrs. Lee Lillard under their guidance until further orders from this Court.'

On June 3, 1956, the Dallas Court entered an order directing the Sheriff of Dallas County to take possession of the child and turn him over to Mr. and Mrs. Lee Lillard. Evidently at this time some controversy had developed between Imagene Lillard and Lee Lillard concerning the infant and Imagene Lillard had taken the child from the home of Mr. and Mrs. Lee Lillard. On September 25, 1956, Imagene Lillard filed a pleading in the Dallas Court which she designated as a 'Motion for the change of residence of the minor child, John S. Lillard, Jr., and/or amendment of judgment.' While the pleading was filed under the same docket number as that given the original divorce suit, we think it must be considered as the institution of a new suit which had for its purpose the changing of the order relating to the custody of the minor, John S. Lillard, Jr. Lakey v. McCarroll, 134 Tex. 191, 134 S.W.2d 1016; Ex parte Webb, 153 Tex. 234, 266 S.W.2d 855; Black v. Black, Tex.Civ.App., 2 S.W.2d 331, no writ history. In this pleading Imagene Lillard alleged that a change of conditions affecting the custody of the child had taken place since the rendition of the original divorce decree and that she should be given 'full custody of said minor child without any qualifications or conditions whatsoever.' She prayed that John S. Lillard be cited to appear and show cause, if any there be, why such child should not be placed in her custody.

(The motion mentioned was evidently an amended motion. The designation 'Amendment to Motion for Change of Residence' appears at the top of the first page thereof. A copy of the docket entries of the Judge of the Dallas Court filed among the papers of the case discloses the following:

9-11-56 File Motion change residence

9-19-56 File Plea of Privilege

9-20-56 Non-suit as to Lee Lillard

9-25-56 File Amended Motion

9-27-56 Plaintiff movant granted leave to amend and make new parties.

None of the pleadings or orders mentioned in the above docket entries are before us. It may be that Lee Lillard was a party to the original 'motion,' filed a plea of privilege to be sued in Tarrant County, the place of his residence and was thereafter dismissed from the suit. He was not a party to the 'motion' of September 25, 1956, although the purpose thereof was to abrogate the requirement of the original decree that the minor child remain in the residence of Mr. and Mrs. Lee Lillard.)

On February 26, 1957, ¹ Imagene Lillard, without dismissing her suit or motion filed in the Dallas Court on September 25, 1956, ² filed suit against Lee Lillard and wife Jean Lillard, in the District Court of Tarrant County, 153rd Judicial District, hereinafter referred to as the Tarrant Court, wherein she sought full custodial rights in and to the minor child, John S. Lillard, Jr., as against the named defendants. Her husband, John S. Lillard, was not named as a defendant in this suit. This cause was docketed as Cause No. 4965-C.

In their answer ³ filed in Cause No. 4965-C, defendants Lee Lillard and wife pleaded in abatement that there was a suit pending in the Dallas Court 'for identically the same cause of action; the same subject matter is in dispute, the custody of John S. Lillard, Jr. That the case is still pending; that the plaintiff in that suit is the same plaintiff as in this suit and the Court in Dallas County, Texas, gave leave to plaintiff to amend in that cause to bring in Mr. and Mrs. Lee Lillard.'

On May 24, 1957, John S. Lillard, the defendant in the case pending in the Dallas Court (Cause No. 6304 G/J) filed an application for a temporary restraining order to prevent Imagene Lillard from taking the child from the home of Mr. and Mrs. Lee Lillard. This restraining order was issued as prayed for and the application for temporary injunction set for June 14, 1957.

On June 7, 1957, the Tarrant Court, after a hearing which took place on May 24, 1957 (according to the recitations of the judgment), rendered a decree in Cause No. 4965-C which awarded full and complete care, custody and control of the minor to Imagene Lillard and ordered Lee Lillard and wife to deliver possession of the child to Imagene Lillard forthwith. Notice of appeal from this judgment was given but no appeal was perfected.

On June 10, 1957, the Tarrant Court issued an order to the Sheriff of Tarrant County in which it was recited that Lee Lillard and wife Jean Lillard were forcibly holding the minor child, John S. Lillard, Jr., despite the Court's order of June 7, 1957, that the child be forthwith delivered to Imagene Lillard. The sheriff was ordered to take physical custody of the child and turn him over to Imagene Lillard.

On June 14, 1957, an additional application for a restraining order against Imagene Lillard was filed in the Dallas Court by an attorney for John S. Lillard, alleging that she intended to take the child out of the state and thus defeat the jurisdiction of the court. This application, in addition to a prayer for injunctive relief, requested 'that on final hearing hereof, that the custody of said child be permanently placed with Mr. and Mrs. Lee Lillard or, in the alternative, that the legal custody of said child be placed with the Dallas County Juvenile authorities, and physical custody be placed with Mr. and Mrs. Lee Lillard, with specific and reasonable visitation privileges to plaintiff (Imagene Lillard) herein.' The restraining order was issued as prayed for and the hearing upon the application for a temporary injunction was set for June 28, 1957.

Also on June 14, 1957, John S. Lillard filed an amended original answer ⁴ in reply to the pleading filed by Imagene Lillard on September 25, 1956, in the Dallas Court wherein she sought a modification of the child custody provision contained in the original divorce decree. This amended answer alleged that the child was suffering from cerebral palsy and required constant medical attention. By way of cross-action, John S. Lillard sought to have the custodial rights in and to the child placed with Mr. and Mrs. Lee Lillard permanently or 'in the alternative, that the legal custody be placed with the Dallas County Juvenile authorities and that the physical custody of said child be placed with Mr. and Mrs. Lee Lillard.' This answer was signed by the same attorney who filed the application for injunctive relief above mentioned.

On June 28, 1957, the Dallas Court entered an order reciting the appearance of John S. Lillard in person and by attorney, service of notice of hearing upon Imagene Lillard and default on her part. The court found that Imagene Lillard had violated a previous order of the court by removing the child from the custody of Mr. and Mrs. Lee Lillard; that the child was in need of immediate medical attention and decreed that Sam Davis, Dallas County Chief Probation Officer, have legal custody of the child until further order of the court.

On July 2, 1957, John S. Lillard filed a motion which resulted in the Dallas Court's issuing an order directing the sheriff of any county in the State of Texas, wherein the child may be found, to forthwith take the physical possession of such child and deliver him to 'the Chief Probation Officer, Dallas County, Texas, or whomever the Chief Probation Officer's Office designates should have custody of said child.'

Sometime after the rendition of the Tarrant Court judgment on June 7, 1957, Imagene Lillard gained possession of the child and took him from Texas to the State of California. Sam Davis, the Chief...