Hickman v. Hickman

• Decision Date: 16 January 1969
• Docket Number: No. 2610,2610
• Citation: 218 So.2d 48
• Parties: Nellie Jo Price HICKMAN, Plaintiff-Relator, v. Vergil D. HICKMAN, Defendant-Respondent.
• Court: Court of Appeal of Louisiana — District of US

Page 48

218 So.2d 48

Nellie Jo Price HICKMAN, Plaintiff-Relator, v. Vergil D. HICKMAN, Defendant-Respondent.

No. 2610.

Court of Appeal of Louisiana, Third Circuit.

Jan. 16, 1969.

Rehearing Denied Feb. 5, 1969.

Writ Refused April 3, 1969.

Downs & Gremillion, by Field V. Gremillion, and Howard N. Nugent, Alexandria, for defendant-respondent.

Gravel & Doggett, by Camille F. Gravel, Jr., Alexandria, for plaintiff-relator.

EN BANC.

MILLER, Judge.

This court granted an order on November 22, 1968 staying the execution of a writ of Habeas Corpus which commanded the mother to deliver to the father custody of their three children, ages 11, 9 and 5. On November 27th, this court issued a Writ of Certiorari to review the trial court's decision of November 22nd granting Habeas Corpus. Substantially, the errors alleged are:

(1) The trial judge refused to admit any evidence offered by the mother at the Habeas Corpus hearing to show that a reconciliation had occurred subsequent to the May 25th custody order on which the writ of Habeas Corpus is based.

(2) The trial judge refused to admit testimony by the mother to show that there had been a change in circumstances since May 25th and that it was now in the children's best interest that the children remain with the mother.

A review of the many pleadings, hearings and decrees related to the marital status of these parties is essential to carefully consider the legal issues before us.

On April 23, 1968, Nellie Jo Price Hickman, relator, filed suit seeking a judicial separation, alleging cruel treatment. She also sought custody of the three children and alimony. On May 7th an amended petition was filed setting forth with more particularity the grounds on which Mrs. Hickman intended to prove her allegations of cruelty. On May 8th, Mrs. Hickman's counsel filed notice that they intended to take the deposition of Mr. Hickman at 3:30 p.m. on May 9, 1968. On May 16th, Mrs. Hickman's counsel filed a 'motion for the production of documents and other things,' particularly seeking magnetic or other tapes obtained through electronic eavesdropping and photographs allegedly obtained by Mr. Hickman. On May 20th, Mr. Hickman's counsel filed a motion to vacate, annul and set aside the above described subpoena duces tecum, and a hearing was set on this motion for May 22nd, 1968. On May 22nd, Mrs. Hickman's counsel filed a motion substantially reiterating his request of May 16th. At the May 22nd hearing, the court heard evidence and overruled Mrs. Hickman's motions for production of electronic tapes and/or photographs allegedly taken by Mr. Hickman during January, February and March of 1968.

On May 24th, Mr. Hickman filed a general denial to his wife's petition and reconvened seeking a judgment of divorce on grounds of adultery and alternatively, a judicial separation on grounds of cruel treatment. He also sought custody of his three children pending the trial and permanent custody thereafter.

On May 24th and 25th, (321 pages of) testimony was heard by the trial judge, after which he delivered a well reasoned detailed oral opinion awarding temporary custody to the father and denying alimony pendente lite to Mrs. Hickman. The testimony showed that Mr. Hickman earned approximately $650 per month as a bank employee, while Mrs. Hickman earned approximately $350 per month as a school teacher.

On May 29th Mrs. Hickman's counsel applied for a new trial related to the oral ruling of May 25th. On June 5th she again applied for a new trial on the custody rule, which was denied June 6th, 1968. On June 6th, she filed another motion for the production of electronic tapes and photographic evidence which Mr. Hickman might use on the trial of the merits of the case, this evidence to be deposited at the office of the Rapides Parish Clerk of Court for inspection, examination, copying and photographing. The trial judge granted this order requiring Mr. Hickman to comply on or before July 19, 1968 before 5:00 o'clock p.m.

On October 30, 1968, Mr. Hickman filed an amended and supplemental reconventional demand and petition for temporary restraining order, preliminary and permanent injunctions. In this amended petition, Mr. Hickman alleged among other things that subsequent to the May 25th ruling, Mrs. Hickman conspired with others and formulated a fraudulent scheme and plan to subvert, disregard, circumvent and disobey the May 25th ruling; that the plan was to make a pretended reconciliation for a limited period of time; that during that time she would seek to establish additional causes for separation, and then abandon her husband and take the children to Grant Parish and institute a new suit there to circumvent the May 25th decision. That she did trick and deceive defendant into believing that a reconciliation had occurred, 'when, in fact, because of plaintiff's true intentions, no genuine reconciliation between the parties was possible.' Articles 36, 37 and 38 follow the above allegations and are as follows:

'36.

'Defendant, VERGIL DUPRE HICKMAN, in the genuine and sincere belief that a reconciliation had occurred, received his wife, NELLIE JO PRICE HICKMAN, in the matrimonial dwelling and resided with her until Sunday, October 13, 1968, at which time the plaintiff, without cause or justification, abandoned defendant and left the matrimonial dwelling, taking with her the three minor children.

'37.

'Pursuant to her plan to obtain an undue and inequitable advantage over defendant and pursuant to her plan to disregard and disobey the decree of this Honorable Court, plaintiff, on October 14, 1968, in Civil Action Number 16,273 of the Eighth Judicial District Court, in and for the Parish of Grant, filed a Petition for Separation From Bed and Board and ancillary thereto asked for custody of the said minor children; because of plaintiff's abandonment of defendant on October 13, 1968, defendant is entitled to amend and supplement his reconventional demand to include abandonment as an alternative cause of action for separation from bed and board.

'38.

'If plaintiff proceeds with the prosecution of her petition for separation from bed and board and custody in Grant Parish, she will thereby obtain an undue and inequitable advantage over defendant and she will thereby circumvent, disregard and disobey the award of custody heretofore entered by this Court on May 25, 1968, and as a consequence thereof, defendant will suffer irreparable injury, loss or damage and in order to protect defendant's interest in the premises, it is necessary that both an injunction and a preliminary injunction be issued herein, enjoining plaintiff, NELLIE JO PRICE HICKMAN, from further prosecuting or proceeding with Civil Action Number 16,273 in the Eighth Judicial District Court in and for the Parish of Grant. Unless restrained from doing so, plaintiff, NELLIE JO PRICE HICKMAN, from further prosecuting or proceeding with Civil Action Number 16,273 in the Eighth Judicial District Court in and for the Parish of Grant. Unless restrained from doing so, plaintiff, NELLIE JO PRICE HICKMAN, will further proceed and prosecute in the said separation suit in Grant Parish and defendant will suffer irreparable injury, loss or damage before notice can be served and a hearing had on the application for a preliminary injunction resulting in immediate and irreparable injury, loss and damage to the defendant. Hence, it is necessary that a temporary restraining order be issued immediately, in the form and substance of the injunction and preliminary injunction mentioned above.'

On October 30th, the trial judge signed a temporary restraining order, without bond, restraining, enjoining and prohibiting Mrs. Hickman from further prosecuting or proceeding with Civil Action Number 16,273 in the Eighth Judicial District Court in and for the Parish of Grant, and set the hearing for the preliminary injunction for November 8th, 1968.

On November 8, 1968, Mrs. Hickman's counsel filed what was termed a 'peremptory exception' to the last above described Supplemental Petition and petition for restraining order and preliminary and permanent injunctions, alleging that paragraph numbered 36 thereof judicially admitted a reconciliation and that under R.C.C. Article 152, this extinguished all causes of action pending before the Ninth Judicial District Court, relating to the marital status of these two parties. The exception goes on to state allegations that

'II.

'Following the initial separation, the petitioner, NELLIE JO PRICE HICKMAN, voluntarily moved back into the family home at Route 1, Deville, Louisiana, with her husband and three (3) minor children on or about the 27th day of July, 1968, only after fervent apologies and supplications on the part of VERGIL D. HICKMAN. The parties continuously lived at the family home as husband and wife until they separated on or about the 13th day of October, 1968.

'III.

'NELLIE JO PRICE HICKMAN shows that the mutually consentual conjugal life was resumed with her husband VERGIL D. HICKMAN, and that a mutual condonation and reconciliation occurred on the 27th day of July, 1968.

'IV.

'Between the 27th day of July, 1968 and the 13th day of October, 1968, NELLIE JO PRICE HICKMAN and VIRGIL D. HICKMAN engaged, in good faith, in the following domestic and family activities which are illustratively set forth as:

'THE PARTIES:

'A. Slept in the same bed and bedroom;

'B. Lived as husband and wife and engaged in marital relations;

'C. Engaged in shopping excursions for the family's basic needs for food, clothing and shelter and in general being with each other continuously in private and public;

'D. Ate meals at the family home together.

'E. Engaged in family recreational activities on numerous occasions, including picnics, church activities, and horseback riding for the children;

'F. Went on family vacations out of state together;

'G. Each day rode to and from work with each other;

'H. Called each other on the telephone to visit...