Blankinship v. Blankinship, 1857

• Decision Date: 18 October 1978
• Docket Number: No. 1857,1857
• Citation: 572 S.W.2d 807
• Parties: Johnny Lavell BLANKINSHIP, Appellant, v. Sheryl Combest BLANKINSHIP, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 807

572 S.W.2d 807

Johnny Lavell BLANKINSHIP, Appellant, v. Sheryl Combest BLANKINSHIP, Appellee.

No. 1857.

Court of Civil Appeals of Texas, Houston (14th Dist.).

Oct. 18, 1978.

Jimmy Phillips, Jr., Angleton, for appellant.

Martin B. Hardin, Jr., Wommack, Denman & Hardin, Lawrence H. Packard, III, Lake Jackson, for appellee.

COULSON, Justice.

Appellant, Johnny Lavell Blankinship, petitions this court by means of a writ of error to review a judgment granting a divorce to appellee Sheryl Combest Blankinship, providing that appellee be managing conservator of the minor children and, inter alia, granting possession of the couple's home to appellee, with provisions for its disposal upon the happening of certain contingencies. Appellant complains of the disposition made of the parties' home. Appellee has filed a motion to dismiss appellant's writ of error on the ground that appellant participated in the proceedings below, which participation operates to defeat the jurisdiction of this court to review the petition for writ of error. The motion to dismiss is granted and the petition for writ of error is dismissed.

Tex.Rev.Civ.Stat.Ann. art. 2249a specifies that "no party who participates either in person or by his attorney in the actual trial of the case in the trial court shall be entitled to review by the Court of Civil Appeals through means of writ of error." The question to be answered in determining whether writ of error is available to appellant is whether his actions in connection with the divorce proceedings constituted such "participation" as would foreclose writ of error review. The extent of participation in the actual trial that disqualifies an appellant from review by means of a writ of error appears to be one of degree. Thacker v. Thacker,496 S.W.2d 201 (Tex.Civ.App. Amarillo 1973, writ dism'd). Such review has been granted to one who merely filed a motion for new trial with no other participation, Lawyers Lloyds of Texas v. Webb, 137 Tex. 107, 152 S.W.2d 1096 (1941); and to one who merely files an answer and does not further participate, Petroleum Casualty Co. v. Garrison, 174 S.W.2d 74 (Tex.Civ.App. Beaumont 1943, writ ref'd w. o. m.). Writ of error is denied where the appellant participated in the actual trial that led to judgment, Lawyers Lloyds of Texas v. Webb, supra ; to one who had excepted to the judgment in open court, Byrnes v. Blair, 183 S.W.2d 287 (Tex.Civ.App. El Paso 1944, no writ); and to one who participated in all steps of a summary judgment case except appearance at the hearing on the motion for summary judgment, Thacker v. Thacker, supra.

The record in this case reveals that appellant signed a waiver of citation, which indicated that he was entering an appearance for all purposes, and waived the making of a record of testimony. Additionally, appellant indicated his approval of the divorce decree by signing the judgment prior to its entry by the trial court. We believe that appellant "participated" in the proceedings in an extent sufficient to preclude him, under article 2249a, from obtaining review in this court by means of writ of error. Our conclusion is supported further by the opinion of the Supreme Court of Texas in Lawyers Lloyds of Texas v. Webb, supra, where that court discussed the purpose of the article 2249a requirements:

The statute was intended to cut off the...