Kohls v. Kohls, 549

Decision Date12 November 1970
Docket NumberNo. 549,549
Citation461 S.W.2d 455
PartiesLinda J. KOHLS et al., Appellants, v. Donald P. KOHLS, Appellee.
CourtTexas Court of Appeals

Trimble & Dobbs, Harry Dobbs, Jr., Corpus Christi, for appellants.

Charles R. Cunningham, Corpus Christi, for appellee.

OPINION

SHARPE, Justice.

This appeal is from a summary judgment rendered in a child custody case by the Domestic Relations Court of Nueces County, Texas, in favor of plaintiff-appellee, Donald P. Kohls, and against appellants Linda J. Kohls, defendant, and Mr. and Mrs. Charles Gambs, intervenors in the court below. Appellants assert three points of error. The parties will sometimes be referred to as in the trial court.

On September 30, 1969, Donald P. Kohls sued Linda J. Kohls in the Court of Domestic Relations, Nueces County, Texas, for change of custody of their minor son, John Paul Kohls, who was born on March 23, 1965. His petition alleged that the parties had theretofore been divorced by decree of the Court of Domestic Relations, Brazoria County, Texas, on March 25, 1969, which granted custody of the child to Linda Kohls, and that there had subsequently been a change of conditions. On October 8, 1969, Linda Kohls duly answered and contested plaintiff's petition for change of custody. Mr. and Mrs. Charles Gambs, parents of Linda Kohls filed a petition in intervention in which they also sought custody of the minor child, alleging in part that they have had custody of him for at least four years of his life and have provided practically his exclusive support and maintenance except for about six months during which appellee was ordered to pay $75.00 per month for child support.

The Nueces Court set a hearing on plaintiff's petition for temporary custody of the child for October 10, 1969, but on October 8, 1969, cancelled the same on plaintiff's motion which recited, among other things, that it was impossible for the defendant to appear at that hearing and that plaintiff in fact had the temporary custody of the child.

The record further reflects that on November 26, 1969, Linda Kohls, as petitioner, filed a habeas corpus proceeding in the Court of Domestic Relations of Brazoria County, Texas, against Donald P. Kohls as respondent, in which judgment was rendered on December 4, 1969, denying relief to the petitioner. The Brazoria County proceeding will be more fully hereafter discussed.

On December 4, 1969, plaintiff filed his original motion for summary judgment, which, on that date, was set for hearing on December 17, 1969. On December 11, 1969 plaintiff filed an affidavit in support of the motion for summary judgment made by his attorney of record, along with a certified copy of the judgment in the Brazoria County case. On December 15, 1969, defendant Linda Kohls filed a first amended original answer and sworn cross-action. On that date she also filed an answer to plaintiff's motion for summary judgment in the form of an affidavit sworn to by her.

Among other things, the cross-action of Linda Kohls alleged in substance that at the time of her divorce from plaintiff on March 25, 1969, the minor child was in the actual care, custody and control of Mr. and Mrs. Charles Gambs of Corpus Christi and had been in their custody since September or November 1968; that she executed a power of attorney on March 25, 1969 authorizing Charles Gambs (her father) of Corpus Christi, Texas, to look after the child and to exercise necessary powers for his best interest and welfare but in no way relinquished Linda Kohl's care, custody and control of the child as had been given to her by virtue of the divorce decree entered on the same date the power of attorney was signed; that the care, custody and control of the minor child so awarded to Linda Kohls has never been changed by any court order or court of competent jurisdiction; that there had been no proof made in this case showing that a change of custody to Donald P. Kohls would be warranted; that he is not a fit and proper person to have custody of the minor child; that Linda Kohls, at the time of filing said cross-action, was living with her parents in Corpus Christi, Texas, and she was then attending classes at Del Mar College to prepare herself for employment; that her parents were supporting her and were willing to support the minor child if returned to Linda Kohls.

On December 15, 1969, when Linda J. Kohls filed her amended original answer and cross-action in which she sought permanent and temporary custody of the child, the trial court set a hearing for December 22, 1969, on a show cause order directed to Donald P. Kohls for the return of custody of the minor child to Linda J. Kohls, but such hearing was apparently not held, probably because the court on December 22, 1969 granted the summary judgment of Donald P. Kohls.

The answer and affidavit of Linda Kohls in opposition to the motion for summary judgment filed by Donald P. Kohls among other things set out in substance the following: that the Nueces suit has not been heard on its merits; that there is a cross-action and intervention pending therein; that the Brazoria County judgment does not adjudicate the issues in the Nueces County suit; that fact issues are therein involved; and that the motion for summary judgment of Donald P. Kohls does not state sufficient grounds to sustain a judgment in his behalf.

On December 16, 1969, plaintiff filed his 'Supplemental Pleading to Motion for Summary Judgment' more fully hereinafter discussed. On December 17, 1969 the trial court herein conducted a hearing on plaintiff's motion for summary judgment and announced that it would be granted.

The record reflects that the Nueces Court granted plaintiff's motion for summary judgment on the ground that the Brazoria judgment was res judicata and that the Nueces Court could not go behind it.

The formal judgment of the Nueces Court was entered on December 22, 1969, and after preliminary recitations, including one that plaintiff's motion for summary judgment should be granted, reads in part as follows:

'It is accordingly ORDERED, ADJUDGED and DECREED by the Court that Plaintiff Donald P. Kohls, is the legal custodian of his minor son, John Paul Kohls, as a matter of law as of December 4, 1969;

'It is further ORDERED, ADJUDGED and DECREED that all claims of intervenors, Mr. and Mrs. Charles Gambs, are denied and their Petition in Intervention is dismissed;'.

Appellants, by three points of error contend in substance that the trial court erred in granting summary judgment: (1) In holding as a matter of law, on a motion for summary judgment, that legal custody of the minor child was in the plaintiff (father) as of December 4, 1969; (2) in holding as a matter of law that there were no fact questions to be decided by a trial of such case; (3) in granting summary judgment in this case based upon the pleadings and affidavits before the court. These points are sustained.

Plaintiff's original motion for summary judgment, filed on December 4, 1969, was based upon the following theories: (1) That on October 8, 1969, Linda Kohls, the defendant in the Nueces County suit, had judicially renounced all rights to custody of her minor son by a pleading filed in that court allegedly having that effect; that the legal custody of the child had reverted automatically to the plaintiff, Donald P. Kohls, who had assumed the rule of legal custodian and had actual custody of the child; that the Nueces Court should grant summary judgment awarding and confirming permanent legal custody in plaintiff; and that there was no genuine issue of fact to be determined; (2) that the intervenors, the maternal grandparents of the child had not and could not possibly state cause of action for custody because of the alleged judicial renouncement of custody by their daughter, Linda J. Kohls, on October 8, 1969, at which time legal custody of said child vested in the plaintiff; that intervenors are estopped as a matter of law from presenting any facts pertaining to custody antecedent to October 8, 1969; that intervenors have no legal right whatsoever to custody; that as a matter of law plaintiff was entitled to permanent custody.

Plaintiff's 'Supplemental Pleading to Motion for Summary Judgment', filed on December 16, 1969, contained additional allegations to those in the first motion for summary judgment under two headings designated as follows: 'A. Plea of Res Judicata' and 'B. Motion for Summary Judgment against intervenors Mr. and Mrs. Charles Gambs.' Plaintiff's plea of res judicata asserted in substance that Linda J. Kohls, defendant in the Nueces suit, had, on November 26, 1969, filed habeas corpus proceedings in the Court of Domestic Relations of Brazoria County, Texas, styled 'Ex Parte John Paul Kohls,' and numbered 52,000 in that court, in which she was denominated Petitioner, and Donald P. Kohls, plaintiff in the Nueces suit, was denominated Respondent; that on December 4, 1969, judgment was rendered in said cause (a certified copy of which was filed in the Nueces County case) denying Petitioner's (Linda Kohls) application for writ of habeas corpus and dismissing all remaining matters in controversy; that the writ of habeas corpus was denied on the grounds that petitioner had judicially abandoned any and all custodial rights she may have ever had to the said John Paul Kohls when in the Nueces suit she filed an answer which contained a judicial renouncement of all her custodial rights. Plaintiff (movant for the summary judgment in the Nueces proceeding) alleged that the Brazoria judgment was res judicata as of December 4, 1969, and, alternatively, if not res judicata that such judgment estops the defendant as a matter of law from filing further proceedings in this Court. The motion for summary judgment against intervenors Mr. and Mrs. Charles Gambs asserted (or re-asserted in part plaintiff's former contention) that when Linda J. Kohls...

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3 cases
  • In re Marriage of Eilers
    • United States
    • Texas Court of Appeals
    • 30 Agosto 2006
    ...as against public policy. See Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 1118 (1921); Kohls v. Kohls, 461 S.W.2d 455, 461-62 (Tex.Civ.App.-Corpus Christi 1970, writ ref'd n.r.e.). After Hooks however, the Supreme Court soon recognized that such agreements cannot be against public po......
  • Savage v. Savage
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    • Texas Court of Appeals
    • 24 Octubre 2018
    ...heard or urged that the court was without jurisdiction to render the judgment so rendered." Kohls v. Kohls, 461 S.W.2d 455, 465 (Tex. Civ. App.—Corpus Christi 1970, writ ref'd n.r.e.) (citing Moore v. Moore, 430 S.W.2d 247, 250 (Tex. Civ. App.—Dallas 1968, writ ref'd n.r.e.))2; Dutchover v.......
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    ...Browning v. Placke, 698 S.W.2d 362, 362 (Tex.1985). Mapco, 795 S.W.2d at 702-03; see also Kohls v. Kohls, 461 S.W.2d 455, 465 (Tex.Civ.App.--Corpus Christi 1970, writ ref'd n.r.e.) (although an erroneous exercise of power can be subject to a direct attack, the complaint cannot be raised by ......

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