Pettit v. Engelking

• Citation: 260 S.W.2d 613
• Decision Date: 30 June 1953
• Docket Number: No. 12563,12563
• Parties: PETTIT v. ENGELKING at ux.
• Court: Texas Court of Appeals

Page 613

260 S.W.2d 613

PETTIT v. ENGELKING at ux.

No. 12563.

Court of Civil Appeals of Texas, San Antonio.

June 30, 1953.

Rehearing Denied Sept. 2, 1953.

Robert D. Nogueira, Beeville, for appellant.

Reese D. Wade, Beeville, for appellees.

NORVELL and POPE, Justices.

Janice Fay Pettit, an infant approximately three and a half years old, was adjudged a neglected and dependent child within the provisions of Article 2330, Vernon's Ann.Civ.Stats., by the District Court of Bee County, acting in pursuance of a petition filed by Fred Engelking and his wife, Iva Engelking. Article 2331. The mother of the child, Virginia Pettit, has appealed to this Court.

It appears that two hearings were had in this case, and that evidence was adduced at both of them. In the order relating to the first hearing, held on December 17, 1952, it was recited that the court found the allegations in the petition were true and it was therefore ordered 'that said child (Janice Fay) be, and is hereby adjudged a dependent child; that the parental rights of the parents of said child be, and the same are hereby terminated; that said child is hereby turned over to the care and custody of the said petitioners, who are able and willing to care for said child; that the care, custody and control of said child is by the Court transferred to said petitioners, and that said petitioners shall have the right to the custody of said child, subject to the further orders of this Court, and that said child shall become a ward of the subject to the guardianship of said petitioners.'

On December 29th Virginia Pettit filed a motion to reopen the case, hear further testimony, vacate the judgment theretofore rendered and restore the custody of the child to her. The court's action on this motion is disclosed by the recitations in the order disposing of the same, viz.:

'On this 2nd day of January, 1953, came on to be heard the motion and plea of Virginia Pettit, natural mother of Janice Fay Pettit, for a reopening of the proceedings heretofore had in this cause for the purpose of introducing further evidence to show the Court said child is not a dependent and neglected child, which motion was granted; and said motion further praying the judgment entered herein on the 17th day of December, 1952, be set aside, vacated and suspended and that the said Virginia Pettit have judgment that the custody of Janice Fay Pettit be restored to the said Virginia Pettit and for such other relief to which she, the said Virginia Pettit may be justly entitled.

'And the petitioner, Virginia Pettit, having appeared herein in person and by her attorney and the respondents, Fred Engelking and Iva Engelking, his wife, having appeared herein in person and by their attorney, and all parties having announced ready for trial on said motion; and the Court having heard the evidence offered by petitioner and respondents and having considered the same, along with the evidence heretofore offered on the hearing herein on the 17th day of December, 1952, and the Court having heard the argument of counsel, is of the opinion that said motion of the said Virginia Pettit for the vacating, setting aside and suspending of said judgment of the 17th day of December, 1952, and for the restoration of the custody of said Janice Fay Pettit to the said Virginia Pettit should be overruled and denied.'

Appellees by a counter-point present the contention that this appeal is ineffective to review the order or judgment of December 17, 1952, because neither a motion for new trial nor a notice of appeal was filed within the time required by Rules 330(k) and 353, of the Texas Rules of Civil Procedure. The order of December 17th, insofar as it related to the matter of the custody of the child, was expressly made 'subject to further orders of (the) Court.' This is in accordance with applicable statutory provisions. Articles 2335, 2336 and 2337. The trial court had authority under a proper factual situation to change its orders relating to the custody of the child at any time. But appellee insist, before an order changing custody could be properly entered, a 'change of conditions' must be shown to have occurred between December 17th and January 2nd. They cite the case of Pearson v. Pearson, Tex.Civ.App., 195 S.W.2d 188, which is based upon the principle of res judicata. The trial court in this case did not proceed under this doctrine but, on the contrary, considered the evidence adduced upon both hearings. His granting of the motion reopening the case for the receipt of additional evidence 'to show the Court said child is not a dependent and neglected child,' deprived the judgment of the requisite finality to support a plea of res judicata. 26 Tex.Jur. 76, Judgments, §§ 383, 384. The issue before the trial court at the hearing of January 2nd was whether Mr. and Mrs. Engelking or Virginia Pettit should have custody of the minor, Janice Fay Pettit. That was the issue decided by the trial court and is the issue which must be reviewed by us. In so doing, we must do as the trial court did, that is, consider the evidence offered by the parties on January 2nd, 'along with the evidence heretofore offered on the hearing hereon on the 17th day of December, 1952.'

While it has been held that an adjudication of dependency of a child does not necessarily deprive parents of their custodial rights, Nelson v. Clifton, Tex.Civ.App., 202 S.W.2d 471, and the custody of the child here involved could be awarded to the natural mother without disturbing the finding of dependency, we nevertheless consider the present appeal as effective in attacking the judgment of December 17th. We hold that in a case of this kind an order of the court reopening the case for the receipt of further testimony entered within thirty days after the rending of the judgment has the legal effect of setting aside the judgment and rendering it ineffective. There was no subsisting judgment in this case from the time the motion to hear additional evidence was granted until the judgment was re-instated by the entry of the court's order of January 2nd. This construction must be adopted if we are to determine the question of error from the standpoint of what the parties and the trial court actually did and intended to do in the trial court, rather than assume that two separate and entirely independent hearings took place in the face of the trial judge's recitation that on January 2nd he considered the testimony then introduced along with that theretofore heard on December 17th.

There is another reason why the construction above set out should be, and we think has been, in substance adopted in cases of this nature. Ofttimes, dependent and neglected child cases, because of the emergencies of the situation, must be handled and disposed of with dispatch. For this reason, it is not required that a citation be issued to a parent who lives outside the county where the dependent child proceedings take place. However, parental custodial rights come within the protection of the due process clauses of the federal and state constitutions. Fourteenth Amendment to the Constitution of the United States, Article 1, § 19, of the Constitution of Texas, Vernon's Ann.St. Consequently, the Supreme Court has held that 'where the parents are without notice of the proceedings, they must be allowed a full hearing in a subsequent proceeding on the issue of whether sufficient facts existed as to authorize the entry of the judgment of dependency.' DeWitt v. Brooks, 143 Tex. 122, 182 S.W.2d 687, 691. In cases of this kind the question of the fairness of the hearing is always present and has been jealously guarded by the courts. In Reyna v. State, Tex.Civ.App., 206 S.W.2d 651, the judgment was reversed in a delinquent child case, Article 2338-1 Vernon's Ann.Tex.Stats., because the trial judge refused to consider a motion filed on behalf of the child by its mother some twenty days after the original judgment was rendered, despite the fact that the mother was present in court at the time of the original hearing. She had been served with a subpoena rather than a summons, and being unable to understand the English language she was unable to protect her rights or those of her child at the time of such hearing. See also Pena v. Snare, Tex.Civ.App., 196 S.W.2d 207.

In this case the evidence shows that at the time these proceedings were filed, Virginia Pettit was residing in Nueces County, where she was employed as a waitress; that the was divorced from her husband and that his whereabouts were unknown; that she was a native of Virginia and had recently moved to Texas; that she had no blood relatives in the State of Texas, and that her father, step-mother and other close relatives resided in Virginia. Although the statute did not require that she be served with citation, she received a notice on the 15th day of December, commanding her to appear in the Bee County courthouse for a hearing the next day, December 16th, and defend the charge that her daughter was a dependent and neglected child. (It should perhaps he said that the notice was issued on December 11th. the record does not show why it was not served until the 15th.) On December 17th the first hearing took place. On December 29th the motion to reopen the case was made. From the statement of facts covering the second hearing, it appears that the primary purpose of such hearing was to receive the testimony of A. C. Netherton, the father of Virginia Pettit, who made the trip from Virginia to Texas to testify in his daughter's behalf. It likewise appears that his evidence was vital to her case. The trial judge may have well considered that it would have essentially amounted to a denial of a fair trial to refuse to reopen the case and consider this testimony. However that might be, he reopened the case, considered all the testimony and then rendered his decision. We need not determine whether or not the refusal to reopen the case would have...