Hill v. Hill, 51444
Decision Date | 06 December 1980 |
Docket Number | No. 51444,51444 |
Citation | 620 P.2d 1114,228 Kan. 680 |
Parties | Grover HILL, Appellee, v. Linda HILL, Appellant. |
Court | Kansas Supreme Court |
Syllabus by the Court
1. The doctrine of res judicata is not to be applied with the same strictness in child custody matters as it is applied in other civil litigation.
2. Where a custody decree is entered in a default proceeding, and the facts are not substantially developed and presented to the court, the trial court may later, in its discretion, admit and consider evidence as to facts existing at the time of the earlier order, and upon the full presentation of the facts the court may enter any order which could have been made at the initial hearing whether a "change in circumstances" has since occurred or not.
John F. McClymont, of Ryan, Kent, Wichman & Walter, Norton, argued the cause and was on brief, for appellant.
Randall W. Weller, of Jones, Weller & Elliott, Hill City, argued the cause and was on the brief, for appellee.
This is an appeal from an order of the Graham district court changing custody of a four-year-old boy from mother to father. The case comes before us following the granting of a petition for review of the decision of the Court of Appeals. See Hill v. Hill, 5 Kan.App.2d 1, 611 P.2d 158 (1980).
The parties, Grover and Linda Hill, were married in 1974. They have one child, Brian, born September 18, 1975; the trial court's order changing his custody is the target in this appeal.
On October 30, 1978, Linda moved out of the home she and Grover had shared in Morland, Kansas. She took Brian with her, and ostensibly went to live with an aunt in Farmington, New Mexico. Grover filed a petition for divorce in November, 1978; in it, he alleged that Linda was a proper person to have the custody of Brian. Linda waived service of summons and entered her voluntary appearance in the case. The parties entered into a property settlement agreement, by which they provided for custody of the child to be in Linda, subject to reasonable visitation, and they agreed upon support payments. A default divorce decree was entered on March 5, 1979; it incorporated and approved the agreement of the parties. Grover filed a motion to change custody on July 5, 1979, four months after the divorce was granted; Linda responded with a motion to change or modify visitation rights. An evidentiary hearing was held on August 9, 1979, and both motions were heard by the trial court.
These facts were developed at that hearing. Grover had remained in Morland; he was living in the home which the parties acquired during the marriage; and he was still working for the same employer for whom he had worked in the oil fields near Morland for several years. Linda, however, was not living with her aunt in Farmington. About two weeks after she arrived in New Mexico, she moved in with Larry Holden in Aztec, New Mexico, and she has been living with him ever since. They live in a two-bedroom trailer house; Brian lives with them. Larry's 52-year-old brother, Tommy, also lives there, although he is away quite often for four or five days at a time. He and Brian share a bedroom.
About two months after the divorce was granted, Linda brought Brian to Kansas to stay with Grover while she accompanied Larry to California, where he was going at his employer's request. Upon their return from California, Linda came to Kansas to get her son, but he was visiting relatives in Garden City. She returned to New Mexico without him, and shortly thereafter she was advised that Grover was going to file a motion to change custody. The evidence indicates that most of the parties' relatives live in Kansas; that both parties love Brian; that both desire his custody; and that both give him good physical care.
The trial judge, in announcing his decision, said:
The court's order was set forth in a journal entry filed August 24, 1979. That order included the following finding:
The journal entry then proceeded to include the court's order changing custody. Linda appealed.
The Court of Appeals reversed, holding that the trial court's order of March 5, 1979, was res judicata as to all matters which had been or which could have been litigated on that date. The Court of Appeals said:
" " 5 Kan.App.2d at 2-3, 611 P.2d 158.
Grover Hill testified that he was not aware that Linda was living with Larry Holden until "around the time of the divorce." He said that he had suspicions earlier, but he denied knowledge up until that time. The trial court was not advised of the living arrangements of either party, nor was it called upon to weigh evidence and determine which parent would provide the best environment for the child and with which parent the child would receive the best care, when the default divorce was granted.
This brings us to the principal questions in this appeal: Does the doctrine of res judicata apply as strictly and with as much force in child custody proceedings as it does in other civil actions? Where a default decree is entered, and the parties are not both before the court, and where relevant and probative...
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