Ogletree v. Crates

• Decision Date: 09 January 1963
• Docket Number: No. A-9222,A-9222
• Parties: John Fleetwood OGLETREE, Petitioner, v. Margie Bolding CRATES et vir, Respondents.
• Court: Texas Supreme Court

Page 431

363 S.W.2d 431

John Fleetwood OGLETREE, Petitioner, v. Margie Bolding CRATES et vir, Respondents.

No. A-9222.

Supreme Court of Texas.

Jan. 9, 1963.

Lola L. Bonner, Rockport, Young, Young & Daggett, Houston, for petitioner.

John Flinn, Sinton, Robert J. Pickens, Beeville, Reese D. Wade, Beeville, Ellis Clark, Rockport, Fischer, Wood, Burney & Nesbitt, Corpus Christi, Tracy N. DuBose, Corpus Christi, for respondents.

CALVERT, Justice.

By petition for writ of habeas corpus, petitioner, John Fleetwood Ogletree, put in issue the custody of John Fleetwood Ogletree, Jr., young son of petitioner and respondent, Margie Bolding Crates. He alleged that he was entitled to custody under and by virtue of a judgment of an Alabama court. By way of answer and cross-action Mr. and Mrs. Crates sought to set aside the judgment of the Alabama court and sought a judgment awarding custody of the minor to them. Petitioner answered by appropriate pleas of res judicata.

The trial court awarded custody of the child to respondents, with a right of reasonable visitation given petitioner. The Court of Civil Appeals affirmed. 359 S.W.2d 54. We reverse the judgments of the Court of Civil Appeals and trial court and here render judgment awarding custody of John Fleetwood Ogletree, Jr., to John Fleetwood Ogletree and respondent, Mrs. Margie Crates, according to the terms of a judgment rendered and entered by the Circuit Court, Tenth Judicial Circuit of Alabama, August 13, 1957, in Cause Number 107-597, styled John Fleetwood Ogletree v. Margie B. Ogletree.

John Fleetwood Ogletree and Margie Bolding, now Mrs. Crates, were married in 1953. John Fleetwood Ogletree, Jr. was born to the marriage in 1955. The family resided in Birmingham, Alabama. The parents were divorced August 17, 1956 by judgment of the Circuit Court, Tenth Judicial Circuit of Alabama, which judgment, pursuant to an agreement between the parties, awarded general custody of the minor child to Mr. Ogletree. The parties remarried child to Mrs. Ogletree. The parties remarried again divorced by judgment of the Circuit Court, Tenth Judicial Circuit, August 13, 1957. The judgment of the court ratified and approved an agreement of the parties filed in the cause, and made the agreement a part of the judgment.

The agreement provides, among other things, that Margie Ogletree shall have custody of the child for a period of two weeks from the date of the judgment and that John Ogletree shall thereafter have 'the sole care, custody and control' of the child, except during the period from June 15 to August 15 of each year when custody shall be in Mrs. Ogletree. The agreement provides for a right of visitation by each party when the other has custody 'but only upon approval and with the consent of the party who then has such custody.' Finally, the agreement recites: 'The said respondent, Margie B. Ogletree, affirms and acknowledges that, based on her own decision, and after having consulted and obtained competent legal advice from solicitor of her own choice, the custody arrangement as set forth herein, is to the best interest of the said minor child, John Fleetwood Ogletree, Jr.'

On April 1, 1958 Ogletree was transferred to Oklahoma City, Oklahoma, by his employer, The Underwood Corporation. On May 4, 1958 he married Floy Barton. The child was removed from Birmingham to the home of its father in Oklahoma City. On August 5, 1958 Margie Ogletree, then having the minor child in her custody under the provisions of the judgment described above, filed her petition in Cause Number 107-597, in the court which rendered the original divorce and custody decree, seeking a modification of that decree. Ogletree answered and filed a cross-action by which he also sought a modification of the decree. Upon consideration of the pleadings and the evidence, the court, on September 12, 1958, dismissed the petition and the cross-petition with the following finding:

'The Court is convinced that at the time of the second divorce between the parties, they better than others, knowing all that was involved and all that had gone before, could more equitably discern and determine what would be for the best interest and welfare of their minor child, and that their agreement, requested by them to be honored by the Court and made a provision of the final decree herein, was sound, wholesome and wise. The Court is convinced that the plan and schedule agreed upon by the parents for the said child is for its best interest and welfare and should not be disturbed.'

Following entry of the foregoing judgment, the minor was returned to the custody of Ogletree. On December 13, 1958 Margie Ogletree married Ernest Warder Crates. On November 1, 1959 Ogletree's employer transferred him to Houston, Texas. In the summer of 1960 Mrs. Crates and her husband filed suit against Ogletree in a Domestic Relations Court of Harris County, Texas, seeking a change of custody of the minor child because of changed conditions. The trial resulted in a judgment, dated July 15, 1960, denying the relief sought.

On June 15, 1961 Mrs. Crates obtained possession and custody of the child for a two-month period in accordance with the terms of the 1957 Alabama judgment. She took the child to Aransas County, Texas, where she rented a house. At the end of her legal custody period she refused to return the child to its father. This suit followed.

By her pleadings and by evidence offered at the trial of this case Mrs. Crates sought to obtain sole and exclusive legal custody of the minor child on two theories: 1. She sought to set aside the 1957 Alabama judgment on the ground that her consent to the agreement on which it was based was procured by duress and fraud, and to obtain custody by proving that the best interests of the child would be served by award of its custody to her. 2. She sought to prove changed conditions as a basis for awarding custody to her. Since no formal findings of fact or conclusions of law were filed by the trial judge, the judgment must be affirmed if it can be sustained on either theory. It is our opinion, however, that it cannot be sustained on either theory. We will deal first with the theory of changed conditions.

A final judgment in a custody proceeding is res judicata of the best interests of a minor child as to conditions then existing. Wilson v. Elliott, 96 Tex. 472, 73 S.W. 946, 75 S.W. 368, 97 Am.St.Rep. 928; Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787. The judgment of the Domestic Relations Court of Harris County was thus res judicata of the best interests of the child as to conditions existing on July 15, 1960. To authorize a change of custody there must have been a material change of conditions since that date. Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787; Short v. Short, Tex.Sup., 354 S.W.2d 933; Mumma v. Aguirre, Tex.Sup., 364 S.W.2d 220.

Respondents enumerate in their brief some twelve 'conditions,' finding support in the evidence, which they contend justify the change of custody. There is no need to repeat them here. Examination of the evidence adduced on the trial establishes that some of the same conditions existed before July 15, 1960 and fails to establish that the other conditions did not exist before that date. Respondents did not discharge their burden of proving changed conditions so as to avoid the bar of res judicata of the Harris County Domestic Relations Court judgment.

The doctrine of res judicata also bars the effort of respondents to set aside the 1957...