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In re J.G.W.8/23/2001
Tex. 1976). The court's adjudication is to be determined from a fair reading of all the provisions of the judgment. Id. The order, titled "Agreed Order in Suit to Modify Parent-Child Relationship," did not purport or mention final adjudication of Lanny's tort claims. As the agreed order from Pamela's second petition was silent on Lanny's tort claims, the claims could not have been fully adjudicated.
Pamela and Loren also assert that res judicata should bar Lanny's tort claims because they were tried in the original divorce action. This Court is referred to its own unpublished opinion in cause number 06-97-00014-CV to support the proposition that Lanny has already recovered for any harm via the unequal distribution of the marital estate. An appellate court may take judicial notice of its own records in the same or related proceeding involving the same or nearly the same parties. Trevino v. Pemberton, 918 S.W.2d 102, 103 n.2 (Tex. App.-Amarillo 1996, orig. proceeding). However, the only reference in the previous opinion to recovery based on possible tort claims is where this Court noted that "because she absconded with the children, Lanny had to incur the costs of hiring private detectives to find them." This does not establish that the tort claims had been previously litigated. This was evidence that supported the trial court's unequal division. No recovery was attributed to the tortious actions of Pamela and Loren. The possibility of any award in the divorce decree to compensate for tortious harm inflicted on Lanny would go toward satisfaction and not res judicata.
Thus, Pamela and Loren's affirmative defense of res judicata must rest on whether the tort claims pertained to the same subject matter and could have been litigated in the prior matter. It is clear that Lanny's tort claims could have been litigated during the prior suit, as he filed the counter petitions and third-party claim without the trial court finding any jurisdictional prohibitions. The crucial determination rests on whether the tort claims stemming from the actions of Pamela and Loren in wrongfully taking the children and fleeing the state are part of the same subject matter of the custody dispute. While the criminal actions of Pamela and Loren would likely be a consideration of the trial court in making custody determinations, a tort claim of possible injury to Lanny as a result of those actions is not essentially connected to the custody proceeding. In a custody proceeding, the primary objective is the determination of the best interests of the children. Tex. Fam. Code Ann. ยง 153.002 (Vernon 1996); In re P.M.B., 2 S.W.3d 618, 624 (Tex. App.-Houston [14th Dist.] 1999, no pet.); In re Moss, 887 S.W.2d 186, 187 (Tex. App.-Texarkana 1994, no writ). Lanny's tort claims would only be ancillary to the proceeding because they deal with his personal injury and would only be incidental to the best interests of the children. This conforms with the transactional approach to res judicata. See generally Barr v. Resolution Trust Corp. ex rel. Sunbelt Fed. Sav., 837 S.W.2d 627, 630-31 (Tex. 1992). Thus, Lanny's tort claims were not barred by res judicata.
The judgment is reversed and remanded.
Date Submitted: August 1, 2001
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