Bellatti v. Bellatti, 8020

• Decision Date: 16 March 1978
• Docket Number: No. 8020,8020
• Citation: 564 S.W.2d 168
• Parties: Lawrence BELLATTI, Appellant, v. Mary Ann Abbott BELLATTI, Appellee.
• Court: Texas Court of Appeals

Page 168

564 S.W.2d 168

Lawrence BELLATTI, Appellant, v. Mary Ann Abbott BELLATTI, Appellee.

No. 8020.

Court of Civil Appeals of Texas, Beaumont.

March 16, 1978.

Paul R. Lawrence, Houston, for appellant.

L. A. Greene, Jr., Houston, for appellee.

KEITH, Justice.

Our opinion handed down on February 16, 1978, is now withdrawn and this opinion substituted in lieu thereof.

Pursuant to instructions from the Supreme Court of Texas, we set aside our earlier order dismissing the appeal and now consider appellee's motion for imposition of penalty under Tex.R.Civ.P. 438, for the prosecution of a frivolous appeal.

Appellant sought a no-fault divorce, Tex. Family Code Ann. § 3.01 (1975), and the trial court granted such a divorce in a consent decree which incorporated a settlement agreement partitioning the community estate of the parties. Appellant agreed and was ordered to pay contractual alimony at the rate of $575.00 per month beginning April 30, 1977, payable on the fifteenth and thirtieth days of each month.

The contract provided that such payments would cease on occurrence of any one of the following: "On the expiration of Forty-four (44) months or upon death of Wife or Remarriage of Wife."

The decree was entered on April 18, 1977, and was approved as to form and substance by the parties and their counsel. The lengthy property settlement agreement which was incorporated by reference into the decree was also signed by the parties and their counsel and attached to the decree.

On the twenty-ninth day thereafter, the appellant/husband filed a single-page "Amended Motion to Set Aside Decree" wherein he made conclusory allegations that the agreement attached to the decree was "unfair and unequitable (sic)." He alleged that he was overwrought and in a highly emotional state which prevented him from fully presenting his defense.

Our record does not disclose any formal action on the part of the court upon such motion but does show the filing of an appeal bond on May 18, 1977. No evidence on the motion has been brought forward for review.

The transcript was filed in the Court of Civil Appeals for the Fourteenth District on May 19, 1977, and transferred to this court by order of the Supreme Court of Texas. We granted, inadvertently and through error, appellant's motion to dismiss the appeal by an order entered on June 7, 1977.

Appellee's motion to assess the penalty for a frivolous appeal is now before us with appellee praying for the assessment of a penalty of $2,530.00 ten percent of the gross amount of the contractual alimony payments which have accrued and will accrue until December 30, 1980.

Although we invited appellant to file a brief in opposition to appellee's motion for assessment of the penalty, we have not been favored with a reply or a brief. We accept, therefore, the...