Goodman v. Goodman, 12213

• Citation: 236 S.W.2d 641
• Decision Date: 07 February 1951
• Docket Number: No. 12213,12213
• Parties: GOODMAN v. GOODMAN.
• Court: Texas Court of Appeals

Page 641

236 S.W.2d 641

GOODMAN v. GOODMAN.

No. 12213.

Court of Civil Appeals of Texas, San Antonio.

Feb. 7, 1951.

Heath & Ratliff, Falfurrias, J. Hubert Lee, Austin, for appellant.

Mark M. Carter, Baytown, for appellee.

POPE, Justice.

This is an appeal from a decree of one district court changing the child custody decree of another district court.

On June 3, 1947, Josephine Goodman obtained a divorce from John Goodman in the 126th Judicial District Court of Travis County. That decree also made provision for the custody of the minor child born of the marriage. At that time the child was three years old and the father was in the United States Army. Custody was awarded the mother until the child reached the age of sixteen years, but provided that the father 'may visit said child upon reasonable notice to plaintiff, at reasonable times and places.'

During 1949, the mother and child permanently moved to Brooks County and on June 20, 1950, John Goodman, while on leave from the Army, filed a suit in the nature of habeas corpus to obtain part time custody of the child. This suit was filed in Brooks County and alleged that he emjoyed annual leave from the Army during each summer for thirty days, that he maintained a suitable home in Baytown, Texas, that this former wife would not permit his taking the child to Baytown for a visit while he was on leave, nor would she permit him to visit the child at any place other than Falfurrias and in her presence. He also alleged that the child was older; that he was now in a better position to look after the child, and that Mrs. Goodman had changed her residence. He alleged the terms of the former decree, that Mrs. Goodman narrowly construed its visitation privileges, and that he wanted 'a modification of said decree and a judicial determination construing what is meant in said decree by reasonable times and places, and now desires that said decree be modified, fixing the custody of Jay Clark Goodman during the months of July and August, 1950.' The prayer was for an award of custody during those months of 1950, and also 'for each summer thereafter, until said child shall have attained it's sixteenth birthday.'

Notice was promptly served on Mrs. Goodman commanding her to appear at 10:00 a. m. on June 30, 1950, to show cause why the child should not 'during the months of July and August, 1950, (be) awarded and delivered into the custody and care of his father.' In addition to this notice to appear on June 30th, a separate citation was served on Mrs. Goodman commanding her to appear on the Monday following twenty days from service to answer plaintiff's petition, a copy of which accompanied the citation. Appearance day on this process was July 17, 1950.

Both Mr. and Mrs. Goodman, with their attorneys, appeared at the hearing conducted on June 30th and both offered testimony, at the conclusion of which the court entered its judgment and made findings of fact and conclusions of law. The judgment, among other things, recited that since the original divorce and custody decree, 'material and substantial changes in the facts with respect to the custody, best interest and welfare' of the child had occurred, and it then ordered that the best interest and welfare of the child required that the child be awarded the father for a period of three weeks commencing in July and ending on the 26th of that month. The decree also made the additional and significant order, 'that he shall have the custody of said child each regular succeeding summer hereafter, until the further order of the Court, for a period of three (3) weeks beginning the 1st day of July and terminating on or about six o'clock p. m. on July 22nd.' The decree also defined specifically and clearly the hours for Mr. Goodman's visits on one day of each week for the other part of the year that the father did not have the child in his custody. This custody was ordered to be effective until the further order of the court.

The evidence supports the finding of fact that both parents are persons of good moral character and fit persons to enjoy the custody of their son and that the child is normal and healthy. The court's findings of fact also recited that the mother had impeded the father's freedom to visit the child, as ordered by the District Court of Travis County, and that material and substantial changes in the circumstances and conditions affecting the life of the child had occurred since the original divorce and custody decree. These findings are supported by the evidence. The conclusions of law are short but state that the child 'should be placed in the custody of his father, John M. Goodman, for three weeks of each year, commencing on July 5th, 1950, and July 1st of each year thereafter, and that the mother, Josephine Goodman, should have the custody of such child for the remainder of each year.'

Appellant by proper points complains of the judgment for the following reasons: (1) The evidence was insufficient to show new conditions such as would support a change in the original decree; (2) the decree of the Travis County District Court was res adjudicata; (3) appellant's appearance at the June 30th hearing was in response to a notice to appear for a limited purpose on an interlocutory hearing, but that a final decree was entered as to the permanent custody of the child at the temporary hearing.

Appellee by counter-points urges that (1) the court did not abuse its discretion based on the facts before it; (2) the decree of the District Court of Travis County was not res adjudicata, and in fact was not even a final decree, but like the decree of the Brooks County District Court is subject to change; (3) that in child custody cases trial judges should exercise broad, equitable powers and not permit 'technical' rules to have controlling effect. Related to this counter-point is the additional argument that the appellant did not ask for a postponement of the June 30th hearing and may not now be heard to complain against the decree entered.

Venue for a suit seeking to render effective the exercise of rights granted by a decree may be different from a suit seeking changed custody by reason of new and different conditions. Quick v. Lindsay, Tex.Civ.App., 208 S.W.2d 910. No plea of privilege was filed in this suit, however, and the petition contained sufficient allegations for a new and independent suit fixing venue in Brooks County.

Without detailing the evidence, we overrule appellant's first point, since the unchallenged findings of fact show that on the basis of the facts before the court on June 30th there was sufficient evidence to support the orders made. Whether other and different evidence may have been offered at another time is discussed below.

The second point and counterpoint present interesting opposite extremes. Appellant here urges that the original Travis County decree was so final as to be res adjudicata. Appellee urges that neither the Travis County decree nor the Brooks County decree is final, but that each is an interlocutory order, even to the point that no appeal may be taken from the order. These views result from an improper definition of terms. A decree in child custody matters is final and res adjudicata in the sense that the facts upon which the decree was entered may not again be retried and relitigated. Lakey v. McCarroll, 134 Tex. 191, 134 S.W.2d 1016. It is final only as to matters that were then before the court. Castleberry v. Castleberry, 134 Tex. 409, 135 S.W.2d 701; Murphey v. Walker, Tex.Civ.App., 209 S.W.2d 371; Lacy v. Lacy, Tex.Civ.App., 122 S.W.2d 1104; Stone v. Dickerson, Tex.Civ.App., 138 S.W.2d 200. But the law writes into custody judgments that their finality ends when and if conditions affecting the welfare of the child have materially changed. Goldsmith v. Salkey, 131 Tex. 139, 112 S.W.2d 165, 116 A.L.R. 1293.

The original decree of the Travis County District Court on its face showed that it was to stand from the date of entry as a full adjudication of the custody rights of the parents. Absent new allegations showing material changed conditions occurring after that decree, it would remain unchanged and in force. That is as final as a custody order may become. We have already stated that there was support in the evidence for the trial court's findings of changed conditions, and as to those new and different and additional facts the Travis County decree was...