Hicks v. Hicks

• Decision Date: 13 March 1943
• Parties: HICKS v. HICKS et al.
• Court: Tennessee Supreme Court

176 S.W.2d 371

HICKS v. HICKS et al.

Court of Appeals of Tennessee, Middle Section.

March 13, 1943.

Certiorari Denied by Supreme Court July 3, 1943.

Rehearing Denied by Supreme Court December 4, 1943.

Appeal in Error from Circuit Court, Davidson County; E. F. Langford, Judge.

Proceeding by George W. Hicks against Ruby Lee Hicks and another to modify a divorce decree so as to give petitioner the custody of a child. From a decree dismissing the petition, the petitioner appeals in error.

Decree affirmed and cause remanded with directions.

John H. Lechleiter, of Nashville, for plaintiff in error.

Norman & Keefe, of Nashville, for defendant in error.

FELTS, Judge.

This is a petition to modify a decree which was entered in this cause March 28, 1938, and which divorced Mr. and Mrs. Hicks and gave her custody of their four-year-old daughter, Regina Ann. The child has been in the care of her maternal grandmother, Mrs. Eula Pickle, since before the divorce. The petition brought in Mrs. Pickle as a defendant, and prayed that the former decree be so modified as to give petitioner, the father, custody of the child.

The petition was heard before the Honorable E. F. Langford, the same judge who had entered the original decree. He regarded that decree as conclusive against the father unless there had since been a change of circumstances which required a change of the custody; and, finding no such change, he dismissed the petition. Petitioner appealed in error and has assigned errors.

These are the material facts: Petitioner, George W. Hicks, and his wife, Ruby Lee Hicks, were living together in Nashville; and he was working for the Neuhoff Packing Company. On May 31, 1937, he left his job, went to Detroit, and left his wife and child at the home of the wife's mother, Mrs. Pickle. The child has lived there ever since; and the wife lived there until shortly before the petition was filed October 20, 1941. From September, 1937, to March, 1938, he sent Mrs. Pickle $3 per week for the child's support. He remained in Detroit until June, 1938.

In the meantime, on December 24, 1937, he filed the original bill in this cause for a divorce upon the ground of cruel and inhuman treatment and for the custody of the child upon the ground that she was not in proper custody. He alleged that she "is now and has been at all times in the custody of the defendant and her mother, Mrs. Pickle" and that his wife had often taken their four-year-old daughter to beer gardens and other places where intoxicating liquors were sold and had otherwise failed properly to look after and care for the child. The wife's answer denied these charges and stated that "she is now ready and willing to take complainant back and live with him whenever he is willing to take and provide for her and their child."

The divorce suit was heard March 28, 1938, upon the bill and oral evidence, the wife having withdrawn her answer "by consent." The court entered a decree divorcing the parties, giving the mother custody of the child, requiring the father to pay $5 weekly for the support of the child, and retaining the cause in court for enforcement of the decree and "any further proceedings necessary to the interests of the parties." It was a consent decree in so far as it left the child with the mother and grandmother. Though he had asked for the custody he really did not want it because, he says, he was compelled to return to his work in Detroit, and agreed to the decree, knowing the child was living with her grandmother but not knowing "whether her grandmother or who was going to take care of the child."

Prior to leaving his wife and child in May, 1937, while working at Neuhoff's, he knew Miss Lillian Broyles, an employee at Neuhoff's. Soon after he went to Detroit she, with her family, also went there; and "a couple of months" after his divorce he married her, they returned to Nashville, and he went back to his job at Neuhoff's. They have a two-year-old son, and live in a house on the Hydes Ferry Pike near Nashville, one of his adult sisters living in his home. He now works for Vultee for $30 per week.

His former wife, Ruby Lee Hicks, some two or three weeks before the petition was filed, married Clark Smith, who has a position with T.V.A. which requires him to go from one place to another in that area. He had been transferred from Chattanooga to North Carolina and he and his wife were there when the petition was filed. Mrs. Pickle wired her and she came to Nashville on the return day of the petition but was not present in court some weeks later on the successive Saturdays when this proceeding was heard. She, however, has not permanently removed from Nashville, but is in North Carolina with her husband only while his duties require him to be there. She has not taken the child out of Tennessee but has agreed for her to remain in the home of her grandmother, Mrs. Pickle.

Mrs. Pickle, a widow, lives at 242 Truetland Street, Nashville, and has lived for more than twenty years in that immediate neighborhood. It is near a church, a school, and a park. Her house has nine rooms downstairs and five upstairs. She has roomers and boarders downstairs; and the upstairs is occupied by her, three of her children, and her grandchild, Regina Ann. These three children are an adult daughter; a daughter, sixteen; and a son, fifteen. Mrs. Pickle and her family live on what she gets from her roomers and boarders and what her children earn. With her own means, supplemented by the $5 per week paid by petitioner, she has been supporting and caring for the child, sending her to school and church, and rearing her in a proper manner. At the time of the hearing she was eight, very intelligent, in the third grade in school — a grade ahead of her age. Before 1937, while her father and mother were living together, from the time she was a baby a few months old, they used to leave her with Mrs. Pickle much of the time; Mrs. Pickle has practically reared her from an infant, having kept her much of the time till she was four and all the time since then. This grandmother, who has thus mothered this child, is deeply devoted to her; and the child has great affection for the grandmother.

The argument for petitioner goes upon the idea that his right was unaffected by the former decree and that, other considerations being equal, he as the father has a superior right to the custody of his child. We think, however, that the decree was an adjudication against his right, and consequently a bar of it, upon the facts then existing; and that, in the absence of proof that there has since been a change of circumstances which requires a change of custody for the welfare of the child, the decree is still conclusive against him. The principle of res adjudicata applies with as much force to final decrees disposing of the custody of children as it does to decrees of any other character. Freeman on Judgments, 5th Ed., Vol. 2, § 829, says:

"Final determinations with respect to the care and custody of infants form no exception to the general principle of conclusiveness of judgments. If the adjudication was by a court having jurisdiction it is res judicata as to the rights of the parties on the facts as they then existed. This rule is most frequently applied with respect to habeas corpus proceedings to determine the rights of custody, which must be distinguished in this respect from habeas corpus proceedings by one imprisoned, to secure his freedom, the question in the former being not whether the infant is restrained of its liberty but which of the contending parties is entitled to its custody. The decision on a former writ is conclusive in a subsequent application, unless some new fact has occurred which has altered the state of the case or the relative claims of the parents or other contestants to the custody of the child in some material respect. The adjudication is conclusive, so far as the right of custody is concerned, as to every matter or fact which might have been urged for or against that right. * * *"

And the author goes on to say that, "to secure the repose of society," the application of the principle of res judicata is necessary in all judicial proceedings and no less so in the oft-recurring and "unhappy controversies" over the custody of children; and that it is applied alike in habeas corpus and in divorce cases (Id. § 829), citing, among other authorities, State ex rel. v. West, 139 Tenn. 522, 201 S.W. 743, Ann.Cas.1918D, 749, which was a habeas corpus case, and Kenner v. Kenner, 139 Tenn. 211, 700, 201 S.W. 779, 202 S.W. 723, L.R.A.1918E, 587, which was a divorce case.

In State ex rel. v. West, supra, the juvenile court awarded to a woman, formerly a nurse, the custody of a boy. His father brought a habeas corpus proceeding in the circuit court to obtain his custody. It was held that the juvenile court judgment was a bar to the habeas corpus proceeding, the issue — what was for the best interest of the child — and the facts being the same in both proceedings. Said the court through Mr. Justice (now Chief Justice) Green:

"It is said that the best test as to whether a former judgment is a bar in subsequent proceedings is to consider whether the same evidence would sustain both. If so, then the judgment in the former suit is res adjudicata, although the two actions are different. 15 R.C.L. p. 964." 139 Tenn. 529, 201 S.W. 745, Ann.Cas.1918D, 749.

In Kenner v. Kenner, supra, the wife, after separating from her husband in Tennessee, went to Alabama to live, taking their child. There she obtained a decree of divorce and the custody of the child, publication having been made and a copy of the bill sent to the husband. Later, when she brought the child back to Tennessee on a visit, he filed a bill seeking the custody of his child. The court, however, held that the Alabama decree awarding the custody to the wife was res adjudicata and a bar to his suit, in the absence of a showing that there had been...