Harrell v. Harrell

• Decision Date: 24 April 1968
• Docket Number: No. 94,94
• Citation: 428 S.W.2d 370
• Parties: Carlyeen HARRELL, Appellant, v. H. M. HARRELL, Sr., et ux., Appellees. . Houston (14th Dist.)
• Court: Texas Court of Appeals

Page 370

428 S.W.2d 370

Carlyeen HARRELL, Appellant, v.H. M. HARRELL, Sr., et ux., Appellees.

No. 94.

Court of Civil Appeals of Texas Houston (14th Dist.).

April 24, 1968.

Rehearing Denied May 22, 1968.

Frederick W. Robinson, Houston, for appellant.

Joe H. Reynolds, Stanley B. Binion, Reynolds, White, Allen & Cook, John M. Robinson, Houston, for appellees.

Majority 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 CauseNo. 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 RelationsNo. 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 juvenile 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 CauseNo. 643,314 in the Court of Domestic RelationsNo. 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 children;' that 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 petitioner;' that 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 CauseNo. 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 CauseNo. 12,670, In Re: Clayton M. Harrell, Jr. and Byron Harrell, In the Court of Domestic RelationsNo. 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 Habeas 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 take 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 RelationsNo. 4 in Harris County, Texas, rendered judgment in this CauseNo. 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 CauseNo. 672,717, in the Court of Domestic RelationsNo. 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 CauseNo. 12,670 in the Court of Domestic RelationsNo. 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 1964petition 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 1964petition for habeas corpus, the answer to the 1964petition 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 RelationsNo. 4 in Harris County, Texas, sitting as such Domestic Relations Court, whereas the instant proceedings is one in the Court of Domestic RelationsNo. 4, sitting as Juvenile Court.

The only record before us is the transcript of the proceeding in the CauseNo. 12,670 on the docket of the Court of Domestic RelationsNo. 4 in Harris County, Texas, sitting as Juvenile Court.The pleadings and orders from the CausesNo. 643,341(the habeas corpus) and No. 672,712(the adoption) on the docket of Court of Domestic RelationsNo. 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 RelationsNo. 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 1...