Summary
In McManus v. St. Dizier, 174 Miss. 344, 164 So. 407, 408, this Court cited Campbell v. Campbell, 159 Miss. 708, 132 So. 324, and observed that it was there held that "a judgment in habeas corpus proceedings between husband and wife adjudicating custody of child is res adjudicata on that issue as to all facts existing at or before the time of the rendition of said judgment."
Summary of this case from Cassell v. CassellOpinion
No. 31932.
December 9, 1935.
1. DIVORCE.
Decree awarding custody of child to father in divorce suit held res judicata of all facts then or theretofore existing, in subsequent proceedings by mother to recover child's custody.
2. DIVORCE.
In proceeding by mother to recover custody of minor child who was awarded to father by divorce decree, admission of evidence detrimental to father's character relating to facts asserted to have happened before divorce decree was entered held error, requiring reversal.
APPEAL from the chancery court of Pike county; HON. R.W. CUTRER, Chancellor.
F.D. Hewitt, of McComb, for appellant.
It is the elementary law of this state with reference to minor children, as announced by our decisions from time to time, that the welfare of the child is the paramount consideration. When an order has been made by the court establishing the care and custody of a child it will not be disturbed unless subsequent and additional facts and conduct of the parties justify the court in taking the child from one parent and giving it to the other. If the same state of facts exist, the former decree is res judicata, and the court is without authority to change a former order with reference to the custody of the child.
The welfare and best interest of the child are the controlling elements in the determination in all disputes as to the custody, but nevertheless the court should always give the custody to the person having the legal right thereto, unless the circumstances of the case justify, and acting for the welfare of the child, and decreeing the custody elsewhere.
Watts v. Smylie, 76 So. 684, 116 Miss. 12; 29 Cyc. 1594; Hibbette v. Baine, 78 Miss. 695, 29 So. 80; Cotton v. Walker, 144 So. 645.
In the second action between same parties, although cause of action may be different, judgment in first action is res judicata as to any point actually litigated or determined.
The testimony of Mrs. St. Dizier, and the testimony of Mary Hill as to the fictitious tales told in December, 1932, prior to the divorce was inadmissible and incompetent and should not have been put into the record, and the trial judge was in error in admitting it.
Duncan et al. v. Duncan, 80 So. 697, 119 Miss. 271.
J. Gordon Roach and Bert H. Jones, both of McComb, for appellee.
It has been ruled that a judgment in habeas corpus proceeding by a wife against her husband for the custody and control of their infant child, in favor of the wife, is res judicata in a subsequent action by such husband against his wife for divorce and custody of such child, as to all facts existing at the time of the rendition of the judgment in the habeas corpus proceedings. So the validity of a decree of adoption litigated and determined in a collateral habeas corpus proceeding by a court of competent jurisdiction is res judicata in a subsequent proceeding between the same parties to vacate such decree of adoption. Where, however, the facts and circumstances have materially changed since the prior writ was issued such prior decision is not a bar. Furthermore, it has been held that if it appears that it is for the best interest of the child, a court will grant a second writ, notwithstanding the determination in a previous proceeding by habeas corpus of the right to the custody of the child and although no material change in the circumstances is shown.
12 R.C.L. 1256.
Even if it is admitted that the appellant is right in his contention that subsequent and additional facts must exist before the court has authority to change a former order with reference to the custody of the child this case should still be affirmed, for the simple reason that subsequent and additional facts were alleged and proven on the hearing in the court below which justify the chancellor in changing his former decree and awarding the custody of the child to the appellee.
The petition of the appellant asking for a divorce and custody of the child and the petition of the appellee asking for the custody of the child were heard before the same chancellor, a fact which in itself shows that there was a change of conditions between the time of the two decrees. If the same conditions had existed at the time of the hearing on appellee's petition that existed at the time of the decree awarding the custody of the child to the appellant it is reasonable to suppose that the court would have again awarded the custody of the child to the appellant.
Ann. Cas. 1916D, 512.
Argued orally by F.D. Hewitt, for appellant, and by J. Gordon Roach and Bert H. Jones, for appellee.
The parties hereto were formerly husband and wife, and are the parents of the child, June McManus, whose custody is the subject of this suit. The parties were married in 1924, the child was born in June, 1929, and the separation occurred in the latter part of the year 1932. The mother took the child with her at the time of the separation, but soon thereafter wrote the father to come for the child, which he did. In a short time the father and husband filed a suit for divorce, and for the custody of the child, returnable to the April, 1933, term of the chancery court. The wife entered her appearance to this suit, and on the 18th day of April, 1933, the court granted to the husband a decree of divorce, and the decree also granted unto the husband and father the custody of the child, and the child has ever since remained in the care and custody of her father, in this state.
In September, 1934, the father married again, and in December, 1934, the mother remarried, and she now resides in an adjoining state. On the 9th day of April, 1935, the mother, the appellee, filed her petition in the chancery court of the residence of the child and of her father praying that the custody of the child be now awarded to the mother. Answer was duly filed and a trial had as the result of which the chancellor entered a decree awarding the custody of the child to the mother, from which decree the father has appealed.
In Campbell v. Campbell, 159 Miss. 708, 132 So. 324, this court held that a judgment in habeas corpus proceedings between husband and wife adjudicating custody of child is res adjudicata on that issue as to all facts existing at or before the time of the rendition of said judgment. See, also, Watts v. Smylie, 116 Miss. 12, 22, 76 So. 684. And the same principle applies, of course, to a judgment or decree rendered in any competent proceeding, by any court of competent and full jurisdiction, in respect to such custody. It follows, therefore, that the decree of April 18, 1933, awarding the custody of the child to appellant was res adjudicata of all facts then or theretofore existing, or alleged to exist.
Nevertheless, on the subsequent hearing, the review of which is now before us, the chancellor permitted, over the objections of appellant, the introduction of certain testimony detrimental to the character of appellant, which testimony was of alleged facts asserted to have happened before the decree of April 18, 1933, and which facts, if they existed at all, were known to appellee at that time. The introduction and reception of this evidence was error; and since it appears probable, when the remainder of the record is examined, that this improper evidence was influential upon the chancellor in the rendition of the second decree, now under review, the decree must be reversed and the cause remanded.
Reversed and remanded.